The Employment Appeal Tribunal (‘EAT’) has held that it had territorial and international jurisdiction to hear employment claims brought by an international journalist who had only performed one day of work in London and whose contract was governed by US-law.
What happened in this case
The claimant journalist worked under a contract governed by the law of Georgia, US, and was paid under a ‘play or pay’ arrangement. From 2013 to February 2017, she primarily worked in Asia (based at her apartment in Bangkok), but not exclusively. In March 2017, she returned to London, seeking to be based and work there while recovering from a foot injury.
Her employer rejected her request to be London-based and, after she worked one day in London in June 2017, instructed its London bureau not to deploy her without permission from Atlanta. In August 2017, the London office told her that her contract would not be renewed. She brought claims for discrimination, victimisation, unfair dismissal, equal pay and outstanding holiday pay. The Tribunal (and subsequently, the EAT) had to decide whether she had ‘sufficient connection’ with Great Britain so that her claims fell within the territorial scope of the employment legislation and whether the EAT had jurisdiction to hear them. The EAT held that:
- The question of territorial jurisdiction was a question of law, but categorisation of the claimant’s employment was question of fact. For example, whether an employee is a peripatetic worker and where they are ‘based’ are questions of fact and degree. In this case, the EAT held that it was open to the Tribunal to find the claimant was a peripatetic employee working for a US employer. The EAT considered that it was also entitled to hold that her base changed over time – the claimant had effectively given up her base in Bangkok and moved her base to London from March 2017.
- It did have jurisdiction to hear the case (i.e. the UK courts/tribunals could hear the claim). The EAT held that domestic statutes, which have territorial application, also confer international jurisdiction, unless that jurisdiction is displaced by the Recast Brussels Regulation (which was the law considered here given pre-Brexit facts) or some other principle of private international law (such as the relevant provisions of Civil Jurisdiction and Judgments Act 1982) – which it held was not the case here.
Key takeaways
This is a complex area of law for employers to get to grips with – as the judge in this case said, “anyone who thought the law might be simple and easy to follow must be disappointed”. There is no doubt this case will not be the end of the story, given the complexity.
Given the increase in global working and the rise of digital nomads (i.e. an individual based abroad in another country but may travel and end up working in Great Britain), employers should continue to monitor developments in this space. This case also serves as a useful reminder that:
- Employees based abroad but who travel and work in Great Britain may gain employment law rights in Great Britain if they have a sufficiently strong connection, and in terms of Peripatetic employees, where their base will be is a key factor considering an assessment of all facts.
- The position may change over time, so employers should not only consider this issue on the set up of a working arrangement, but also throughout its duration.
- Consider setting clear rules and boundaries on where employees can work from. Any requests from employees to work in another country should be considered carefully before being agreed to, including, for example, risk assessments of employment rights, tax, immigration, data protection and security and other health and safety or regulatory issues.
