In this OnPoint we consider when discrimination and employment claims can be brought in Great Britain by those working overseas, with particular focus on the recent discrimination case of Ravisy v Simmons & Simmons LLP and Taylor.
Introduction
In Ravisy v Simmons & Simmons LLP and Taylor the Employment Appeal Tribunal (EAT) upheld the decision of an employment tribunal (ET) that it did not have jurisdiction to hear claims for equal pay, sex and race discrimination and victimisation brought by a French lawyer working in the Paris office against an international law firm headquartered in London and one of the partners based in its Paris office.
The claimant in this case was a French qualified lawyer and an equity partner based in the Paris office of Simmons & Simmons, whose headquarters are in London. The claimant was required to retire with effect from the end of 2016 which led to her commencing two claims in the ET.
The claimant’s first claim was brought against the LLP and was for race and sex discrimination, equal pay and victimisation The second claim was brought against another partner in the Paris office, alleging that he directly discriminated against the claimant on the grounds of race and sex by causing or contributing to her enforced retirement and failing to offer her support and guidance.
The EAT considered two questions. First, did the ET have “international jurisdiction” to hear the claimant’s case? Secondly, did the claims brought by the claimant fall outside the “territorial jurisdiction” of the English tribunal? In this context, international jurisdiction determines where a claim can be brought in terms of forum – in which country’s court or tribunal – whereas territorial jurisdiction determines whether the matters complained of are covered by the territorial scope of the relevant country’s legislation such that its courts or tribunals can hear the complaint. The ET had held that, whilst it had international jurisdiction to hear the claims against both respondents, it did not have territorial jurisdiction to hear those claims.
International jurisdiction
With regard to international jurisdiction, the relevant legislation is the so-called Recast Brussels 1 Regulation (Regulation EU/1215/2012) (the Regulation). Article 21(1)(a) of the Regulation provides that, in matters relating to individual contracts of employment, an employer may be sued in the EU member state in which it is domiciled. It was accepted by both parties that, despite the fact that the claimant was a member of an LLP rather than an employee, article 21(1)(a) of the Regulation applied to her situation. Therefore, as the LLP was domiciled in London, the claimant could, as a matter of international jurisdiction, bring her claim against the LLP in England.
The second respondent was domiciled in France and argued that he therefore could only be sued in France on the basis that article 4(1) of the Regulation provides that a person shall be sued in the courts of the member state in which he or she is domiciled. However, article 8 of the Regulation provides that, where a person is one of a number of defendants, he or she may also be sued in the courts of the place where any one of those defendants is domiciled, “provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”
The EAT agreed with the ET that article 8 of the Regulation did apply to the second respondent in these circumstances despite the fact that the claimant had brought two separate claims. There was no doubt that article 8 would have applied if the claimant had brought one single claim against the two respondents. The EAT considered that, on a common sense reading of article 8 of the Regulation, its application should not be dependent on the mechanics of procedural law applying in individual member states. Where defendants are parties to a claim or claims arising from the same set of facts, and therefore the risk of irreconcilable judgements arises, article 8 of the Regulation applies. It did not matter that under the procedural rules of the ET the two claims had not been consolidated. Both respondents could be sued in the ET as a matter of international jurisdiction.
Territorial jurisdiction
With regard to the question of territorial jurisdiction, the Equality Act 2010, under which claims for sex and race discrimination are brought, is silent as to its territorial scope as are other relevant statutory provisions such as those providing protection against unfair dismissal. However, over recent years the courts have considered a number of cases in which employees working abroad have sought to bring statutory employment claims in Great Britain against their employers. The case law has established that there are territorial limits to these statutory rights.
Broadly speaking, the individual’s place of work is decisive – in most cases someone who lives and works outside Great Britain, even if they are British and working for a British employer, will be subject to the employment law of the country in which they work and unable to bring claims in the ET under domestic employment protection law. However, there will be exceptional cases where there are factors connecting the individual’s employment to Great Britain which are “sufficiently strong” to overcome the presumption that the law of the place of work is decisive. This is often referred to as the “sufficient connection” test.
In Serco Ltd v Lawson (2006), the House of Lords identified a number of categories of workers who would fall within this exceptional category of individuals working outside Great Britain but who are nevertheless protected by the employment rights applying in Great Britain. The categories identified were in summary:
- Employees ordinarily working in Great Britain.
- Peripatetic employees (for example, airline crew) whose base should be treated as their place of employment. Relevant factors in that assessment could include the location of the applicable headquarters, the start and end point of business travel, the location of the employee’s home, where the employee is paid and in what currency.
- Expatriate employees working for a British employer, either within what amounts, for practical purposes, to an extra-territorial political or social enclave in a foreign country – an example being a military base or embassy - or who are posted abroad by a British employer for the purposes of a business carried on in Great Britain – for example, a foreign correspondent of a British newspaper, or teachers employed in the UK but working abroad in international or British schools.
Employees with “equally strong” connections with Great Britain and its employment law might also be covered by domestic employment law protection even though they are working abroad.
In subsequent cases, such as Ravat v Halliburton (2012) and Duncombe and others v Secretary of State for Children, Schools and Families (No.2) (2011), the Supreme Court confirmed that the correct approach is not to treat those categories as fixed, but to treat them as examples. The particular facts of each case should be considered as a whole to determine whether there is a stronger connection with Great Britain than the country where the individual works such that the ET should have jurisdiction to hear the individual’s claims.
The Ravisy decision
In Ravisy, the argument was rejected that the claimant’s case was similar to Bates van Winkelhof v Clyde and Co LLP and another (2012). In that case, a partner of a London based law firm who worked in Tanzania was found to be entitled, as matter of territorial jurisdiction, to bring certain claims, including for sex and pregnancy discrimination and whistleblowing, in the ET. Ms Bates van Winkelhof’s connection with Great Britain was found to be sufficiently strong to overcome the fact that she was based in Tanzania. It was relevant, for example, that Ms Bates van Winkelhof worked partly in Great Britain, was mainly paid from London, visited London regularly, and generated invoices from London.
The EAT concluded in Ravisy that the ET had been correct to decide that the claims that the claimant sought to bring fell outside its territorial jurisdiction on the basis that the claimant did not have a sufficiently strong connection with Great Britain such that she could bring claims for discrimination under the relevant legislation. Whilst (like Ms Bates van Winkelhof) she was an equity partner of a UK LLP, registered with the Solicitors Regulation Authority, the claimant worked almost exclusively in France, had chosen to be paid in Euros into a French bank account, and paid tax in France. The partnership agreement she had signed provided for dispute resolution by the Paris bar. Her visits to London for work were ad hoc, infrequent and generally short. The EAT concluded that the claimant worked in France to the virtual exclusion of England. Her appeal therefore failed.
Whilst Ravisy is a useful example of the principles of international and territorial jurisdiction in practice in the employment context, each case must be considered on its own facts. A contrasting example is Ravat v Halliburton (2012). In this case the employee worked in Libya at the time of his dismissal on a rotating basis, working for 28 days in Libya followed by 28 days on leave in Great Britain. The Supreme Court accepted that his employment had a substantial connection with Great Britain based on a variety of factors, including the fact that his home was in Great Britain, his salary was paid in sterling after deduction of income tax and national insurance contributions, the employer group’s normal remuneration structure for those employed in Great Britain applied to him, he was treated as a commuter under the employer’s international assignment policy, his employment contract was subject to domestic law and employment-related matters relating to him, including the redundancy process applied to him, were conducted in Great Britain.
Having a British employer may not, without more, constitute a sufficient connection to Great Britain. For example, In Smania v Standard Chartered Bank (2014) the employee did not have a sufficiently strong connection with Great Britain to bring his whistleblowing claim in the UK courts. Mr Smania was an Italian national living and working in Singapore under a contract which was subject to Singaporean law. The only connection with the UK was that the bank for which he worked in Singapore was a branch of a bank which had its headquarters in the UK. Similarly, in British Council v Jeffery and Green v SIG Trading (2018), Mr Green was engaged by a UK company but lived in Lebanon and commuted to work in Saudi Arabia. Despite the fact that Mr Green had a UK employer, a standard UK contract governed by English law, came to work in the UK occasionally and was paid in sterling, the Court of Appeal found that he did not have a sufficient connection with Great Britain to bring claims in the ET. In contrast, in Lodge v Dignity & Choice in Dying and another (2014), an employee living in and working from Australia for an employer in London was found to be entitled to pursue whistleblowing claims in the ET as she effectively fell into the “expatriate” category referred to in Serco v Lawson on the basis that she worked remotely for the employer’s UK operation.
Other cases falling outside the scope of this note have established that employees working elsewhere in Europe than Great Britain can still bring claims in the ET to ensure that their EU derived rights are honoured.
Conclusions
Whilst Ravisy may provide employers with some further reassurance that those employed or engaged outside Great Britain, whether as employees, partners or workers, may struggle to bring claims under domestic law in the ET, each case turns on its facts. Where there is an international element to an individual’s employment, the employer will need to consider where the employee might be able to bring claims – as this could potentially entail more than one jurisdiction – and its analysis of its potential exposure will influence how a termination is effected or severance sought to be agreed reflecting the different employment protection regimes that may apply.
