Extra-Territorial Jurisdiction Of UK Employment Tribunals

 
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Article by Philip Davies and Rebecca Harding-Hill

Introduction

How connected with England and Wales does an employment dispute have to be before an Employment Tribunal has jurisdiction to hear it? Two recent Employment Appeal Tribunal (EAT) decisions which were made only a few days apart have given conflicting answers to this question.

The EAT considered the jurisdiction of Tribunals to hear claims under the Employment Rights Act 1996 (ERA) by individuals working outside England and Wales. ERA provides for many of the 'basic' employment rights and protections for individual employees. These include the right not to be unfairly dismissed, minimum notice periods for the termination of employment and maternity related rights.

Prior to its repeal in October 1999, Section 196 of ERA provided that only employees who "ordinarily worked" in Great Britain could bring a complaint under this Act. However, following the repeal of Section 196, nothing was inserted in its place, it being considered that the effect of international law and the principles of UK domestic law would mean that UK law would not apply in circumstances where it was not appropriate. In the guidance notes given by the Department of Trade and Industry on the effects of the repeal of Section 196, the view was stated that, in order for UK law to apply, there must be some "proper connection" with the UK first.

It seems that it was thought this "proper connection" would emanate from the application of Article 6 of the Rome Convention (as transposed into UK law by the Contracts (Applicable Law) Act 1990) and the test used to determine the law governing an employment contract. The test provides that in the absence of choice, the contract of employment is governed by the law of the country in which the employee habitually carries out their work or, if an employee does not habitually carry out their work in any one country, by the law of the country in which the place of business through which they are engaged is situated. In either case, however, if it appears from the circumstances as a whole that the contract is more closely connected with another country, the laws of that country will govern the contract.

However, it has been argued that Article 6 does not apply at all to ERA because although the Contracts (Applicable Law) Act may determine the applicable law of the contract, it does not determine whether statutory legal rights, such as provided under ERA, apply. This is because...

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