UK: Non-UK employers face increased risk of UK statutory employment claims

The Employment Appeal Tribunal has ruled that when a claim is within the territorial scope of a domestic statute, the statute  itself confers international jurisdiction on the tribunal to hear the claim, unless this is displaced by a principle of private international law with force equal to that of primary domestic legislation, such as the Recast Brussels Regulation for pre-Brexit cases or the amended Civil Jurisdiction and Judgments Act 1982 (CJJA) post-Brexit.  The EAT also confirmed that there is no requirement for permission to serve the claim on respondents abroad (in contrast to the position for court claims) – it is enough that the respondents have in fact received the claim documents, for example via a UK branch or subsidiary.  Subject to any appeal, the ruling may increase the risk of UK statutory employment claims being allowed to proceed against non-UK employers within multi-national groups, provided there is a sufficient connection with the UK.

In Cable News International Inc v Bhatti the claimant was a peripatetic journalist working mainly in Asia under a contract governed by the law of Georgia, US for a US employer; originally her main base was Bangkok but she had relocated to London by the time of dismissal.  She brought unfair dismissal, discrimination and working time claims which were served on the CNN London bureau and brought to the attention of the US employer.  Both the Employment Tribunal and EAT considered that there was sufficient connection with the UK to bring the claims within the territorial scope of the Employment Rights Act, Equality Act and Working Time Regulations.  London had become the claimant's base even though she had relocated in order to obtain medical treatment for a work-related foot injury, the employer had refused her request to be based from London and she had carried out only a single day's assignment for the London bureau;  it was relevant that she had other connections with the London bureau including having an office pass, ID card and phone and being on its email distribution list.

The EAT followed previous caselaw establishing that international jurisdiction and the territorial scope of the domestic statute are two separate questions, but for the first time ruled that the domestic law can itself be the source of international jurisdiction where the claim is within its territorial scope, unless displaced by the Recast Brussels Regulation or CJJA.  This was a Recast Brussels Regulation case and there was nothing in that Regulation to displace international jurisdiction – on the contrary, Articles 20 and 21 provided two additional bases for claiming English jurisdiction (as an optional, non-exclusive jurisdiction), because London was the last place Ms Bhatti habitually worked and because the London bureau was considered a branch from which the dispute arose (despite it being a legally separate subsidiary, it had acted as an extension of the US employer and had deployed the claimant on an assignment and escorted her off the premises when she was dismissed).  The Regulation does not confer on a non-EU domiciled defendant the right to be sued exclusively in the courts of its non-EU domicile.

Finally, although tribunal rules do not address service out of the jurisdiction, they do provide that the tribunal can treat a document as delivered in person if the tribunal is satisfied that the document has come to the attention of that person.  The EAT ruled that service on a respondent abroad can be effective without any requirement for leave.  Here, service via the London bureau was also effective, as the claim had clearly come to the US employer's attention.