Do UK Employment Tribunals have the jurisdiction to hear claims from overseas workers working for a British company?
In the United Kingdom, workers seeking to enforce their employment rights are entitled to take their employers to employment tribunals. Some workers find it difficult to prove that they are entitled to bring their claims to British employment tribunals either because they spend the majority of their working time overseas or because they are based abroad but work for British companies. Such issues depend on whether the tribunals have the jurisdiction to hear claims.
Jurisdiction can be defined as the power that courts have to make decision and in this case can be taken to mean the territory or geographic area over which that power or authority extends.
In other words, can people based outside the UK bring claims in British courts even if the matters that they are complaining about took place outside the UK?
For example, Janice is employed as a Sales Representative selling goods to continental Europe. She spends 100% of her working time on the road, predominantly in Holland, Germany and France. She lives in South-East England and the company that she works for is based in Kent.
Janice’s colleague Hans lives in the Netherlands, works for the same English based company and spends the same amount of time on the road visiting similar locations to Janice.
In the event that either Janice or Hans find themselves in dispute with their employer then where should they issue an employment claim?
The answer to Hans and Janis’ question will depend on their ability to ascertain the jurisdiction under which their disputes can be heard.
Jurisdictional issues crop up frequently and are commonly found where employees are on overseas assignments, postings and secondments or work offshore in the energy industry.
The difficulty that employment lawyers face is that the answer to jurisdictional issues is very fact specific. That is to say that jurisdiction will depend on a number of factors such as the domicile of the worker, the currency in which the worker is paid; the headquarters or base of the employer to name but a few.
Express Term in Contract
It is common in employment contracts which require overseas work for the jurisdiction to be expressly stated.
For example, the following wording may appear:
This agreement is governed by and shall be construed in accordance with the laws of England and Wales.
Even were jurisdiction is expressed to be outside the UK or a contract is silent as to jurisdiction (does not mention it) then it may still be possible for Claimant’s to issue claims to British employment tribunals. One such example is where legislation derived from the EU is concerned.
EU Law and the Bleuse Principal
In the case of Bleuse v MBT Transport Ltd & anor  UKEAT 0339/07/2112, a lorry driver working for a UK based company but working predominantly in Austria or Germany wished to have his case about working time heard by an Employment Tribunal.
It was held that since British Courts must give impact to EU derived rights, in this case the Working Time Directive, then a British Employment Tribunal would have the jurisdiction to hear Mr Bleuse’s claim. This has been confirmed in more recent case law.
Right to bring Unfair Dismissal Claims – Serco v Lawson and ors  UKHL
This case established the general principles for jurisdiction of unfair dismissal claims. It held that there must be some close connection with Great Britain for case to be heard here and decided that reference must be made to how a contract was being operated at the time of the dismissal. In other words, what was the reality of the employment situation. It created three categories of overseas workers who might be eligible to bring their claims to Employment Tribunals:
- Employees working in the UK at the time of their dismissal.
- Peripatetic Employees: Those employees who move around for their work are entitled to bring a claim if they are ‘based’ here.
- Expatriate employees: Those who work and are based abroad. These workers were described as not entitled to bring claims except in exceptional circumstances such as employees in embassies, military basis or foreign correspondence.