Mediator Michael Malone Examines Expatriate Employment Claims
At a time of increasing globalisation and individuals working at multi-national businesses, former Employment law judge and Trinity Mediator, Michael Malone has prepared the following analysis of how to deal with expatriate claimants wishing to bring a discrimination or unfair dismissal claim against their British employer.
There may be several reasons why a client may want to take a claim to an employment tribunal in Britain - they have more confidence in the British system, they believe they have a better chance of winning, they can expect a higher award if they do win. If jurisdiction is denied, however, a considerable amount of time and money could have been wasted, particularly if the case goes through one or more appeal stages.
It’s no good going to the statutes. Parliament has put territorial jurisdiction in the ‘too difficult’ box and left it to the courts to develop the relevant principles. There are several long House of Lords, Supreme Court and Court of Appeal decisions to wade through, but now a useful starting point is the EAT decision in Mrs N Ravisy v (1) Simmons and Simmons LLP and (2) Mr C Taylor UKEAT/0085/18.
Mrs Ravisy and Mr Taylor were both equity partners in the first respondent law firm at the relevant time, both based at the Paris office (the second largest, after London) and both lawyers qualified in France. They were both parties to an agreement under which disputes relating to members who were advocates at the Paris Bar were to be referred to that Bar’s dispute resolution mechanism. Her visits to the London office were infrequent and generally short. Under the membership agreement, she was not entitled to do fee earning work outside France.
Mrs Ravisy brought several claims against the firm - sex and race discrimination, equal pay (naming three comparators working at the Paris office) and unfair dismissal. Some two months later, she brought claims of sex and race discrimination against Mr Taylor, based on the same factual allegations. The cases were never formally consolidated.
The matter was unusually complicated because the existence of the claims against Mr Taylor raised an issue of ‘international jurisdiction’ as well as the issue of territorial jurisdiction. Both issues were decided by Employment Judge Auerbach (now His Honour Judge Auerbach, a Senior Circuit Judge of the EAT) in December 2017. The appeal to the EAT was decided by Mr Justice Kerr on 30 November 2018 but the decision was reported only in April 2019.
The question of ‘international jurisdiction’ was governed by the Recast Brussels 1 Regulation (EU/1215/2012). The basic principle is that claims can be brought in the courts of the country where the respondent is domiciled or the country where the place of work is. There was no problem regarding the firm. It is ‘domiciled’ in Britain - so the claims could be brought in Britain or in France.
Mr Taylor was domiciled in France. Under article 8(1) of the Regulation, where there is more than one respondent, and at least one is domiciled in a particular EU country, the case against all or both respondents may be heard in the courts of that country if the claims are so closely connected that it is expedient to hear them together to avoid the risk of irreconcilable judgments. Judge Auerbach had decided that this article applied and Mr Justice Kerr agreed. It was immaterial that the claims had been lodged at separate times and not formally consolidated. The claims raised the same issues in the same factual matrix. The employment tribunal had ‘international jurisdiction’.
So far as territorial jurisdiction was concerned, Mr Justice Kerr did not need to review all the leading cases, because the relevant principles had been encapsulated by the Court of Appeal in seven propositions set out in the judgment of Lord Justice Underhill, in the recent joined cases of Jeffery v British Council, Green v SIG Trading Limited,  EWCA Civ 2253,  IRLR 123. Those seven propositions were helpfully set out in paragraph 49 of the EAT judgment. Propositions which were relevant to the present case were the general rule that a worker who lives and works in a particular foreign country, even if British and working for a British employer, but not as a peripatetic worker, will be subject to the employment law of the country where he or she works - the ‘territorial pull’; that the general rule applies to claims under the Equality Act as well as the Employment Rights Act; that there are exceptional cases where there are factors connecting the employment to Great Britain, and British employment law, which pull sufficiently strongly in the opposite direction; if the worker is truly expatriate, that is both living and working abroad, those factors will have to be specially strong to overcome the territorial pull of the place of work.
Judge Auerbach did not have the benefit of this Court of Appeal decision, because it was many months after his own decision, but his analysis of the case law was found by the EAT to be entirely consistent with it.
It was also recorded at paragraph 22 of the EAT judgment that Judge Auerbach, after reviewing the authorities, had indicated that as a starting point cases could potentially be split into three categories. The easiest cases were, (a) those where the claimant worked in Great Britain at the relevant time. There was territorial jurisdiction in those cases. At the opposite extreme, (b), were the cases where the claimant worked outside Great Britain at the relevant time. The presumption in such cases was against jurisdiction, unless there was something which put them in an exceptional category. There must be much stronger connections with Great Britain and with British law than with any other system of law. Then there is the intermediate category, (c), where the claimant lived and worked in Great Britain for at least part of the relevant period. The category (c) case doesn’t need to be truly exceptional. There need only be a sufficiently strong connection with Great Britain and British law.
In the EAT hearing, neither counsel criticised this formulation as a useful guide and Mr Justice Kerr agreed that it was (paragraph 50). Furthermore it was by no means inconsistent with Lord Justice Underhill’s subsequent more detailed formulation.
On the facts, Judge Auerbach found that this was plainly a category (b) case. The EAT agreed. There were some factors which pointed towards British law, such as the membership agreement and the governance arrangements, but they were not sufficient to satisfy the ‘exceptionality’ requirement (paragraphs 24 and 25). Mr Justice Kerr agreed. The case was not even close to the borderline (paragraphs 74-77).