The territorial reach of UK employment law is not limitless and, as one case vividly showed, that can give rise to difficult legal issues in a commercial world increasingly dominated by multinational companies and their globetrotting employees.
The case concerned a national of the Democratic Republic of Congo who obtained employment in the USA with a global investment management business that had 20 offices worldwide. Her employment, on a non-permanent basis, was expressed to be ‘at will’ and her contract was governed by the law of New York.
After working in the USA for a while, she moved to work for other companies in the group around the world, ending up in the UK. She was, however, formally employed throughout by the US company that originally took her on. She was not in the event offered a permanent position, but her employment in the UK was continued for a time in order to protect her immigration status. She was eventually dismissed.
Having made various complaints about her employment in the USA, Switzerland and the UK, she launched proceedings both in New York and before a UK Employment Tribunal (ET). Following a preliminary hearing, the ET found that it had territorial jurisdiction to hear her claims against her USA-based employer and the UK-based company for which she worked in this country.
Ruling on the companies’ challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET was not bound to find that the lack of permanence of her position in the UK was fatal to her ability to claim that she fell within the scope of UK employment protections. The ET was entitled to give weight to the length of time she had been kept on in this country, the level of her integration into the UK office and her inability to move elsewhere due to her immigration status.
Upholding the appeal, however, the EAT found that the ET clearly had no jurisdiction to consider her complaints that pre-dated her move to the UK. The ET had failed to state exactly when her employment came under the protection of UK employment law. It also had no apparent regard to the fact that her employment was subject to New York law. The matter was sent back to the same ET for reconsideration.