United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0593/11/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE LONDON EC4Y 8JX

 

At the Tribunal

on 20 April 2012

Judgment handed down

on 15 June 2012

 

 

 

 

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

SITTING ALONE

 

 

 

 

MS DENISE SIMPSON APPELLANT

 

 

 

 

 

 

 

 

INTRALINKS RESPONDENT

 

 

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

 

 

For the Appellant	Mr JOHN HORAN (of Counsel) Instructed by: Messrs Fisher Meredith Solicitors 405 Kennington Rd London SE11 4PT
For the Respondent	Ms GARNER (of Counsel) Instructed by: SNR Denton UK LLP The Pinnacle 170 Midsummer Boulevard Milton Keynes MK9 1FE

SUMMARY

The parties agreed that  in the event of any employment dispute , the applicable law would be German, and the place of jurisdiction Frankfurt, which was where the claimant lived and from where she worked (though she came on occasion to the UK).  She brought claims under the Sex Discrimination Act 1975 and Equal Pay Act 1970 in an Employment Tribunal in the UK.  The Employment Judge held the ET did not have jurisdiction.  He was not referred to relevant legislative provisions.  When asked to consider those provisions, on an application for review, he refused to entertain a review.  The claimant appealed: held that he should have held a review, and if he had the claimant would have succeeded, since the Brussels I Regulation had the effect that the UK had jurisdiction; that although German law was applicable under the Rome Convention, this could not exclude the provisions of the UK Acts, which (since they had world-wide territorial scope) should be applied.  The ET had jurisdiction, since it could determine the facts amongst which was German Law.

MR. JUSTICE LANGSTAFF (President)

 

Introduction

 

 

1.         The question raised by this appeal against a ruling by an Employment Judge at a Preliminary Hearing is whether an Employment Tribunal has jurisdiction over a claim for sex discrimination and equal pay, and if so whether domestic or foreign law applies, where it is a term of the contract of employment that both the applicable law and jurisdiction which should govern employment disputes between the parties is that of another European Union member state.  Although issues of jurisdiction have been determined in other claims which have come before the courts – principally in respect of the right not to be unfairly dismissed – in the absence of any choice of law or forum clause, counsel suggest this is the first claim to be determined where such a clause is present.

 

The Facts

 

2.               The preliminary hearing proceeded on facts which had largely been agreed, save that the judge found that the contract which contained the relevant clauses had been accepted by the claimant as governing her employment, contrary to her contention. There is no challenge now to that finding. It is important to note that the date from which the new contract began was found to be October 2008, and that it was agreed at the start of January 2009, before the Rome II Regulation came into effect.

 

3.               Relevant features of the written contract the judge accepted as applicable were that:

a.    it was written in both German and English, the two versions sitting alongside one another, but provided that in the event of discrepancy between the texts the German would prevail

b.    it described the Respondent employer as having its registered office in London;

c.    it gave the Claimant’s address as Frankfurt

d.    it stated that her place of work was Frankfurt  (though she could be transferred to other offices or places in Germany if necessary due to operational reasons, and could be required to travel to “such places within or outside Germany as the Employer may from time to time require”)

e.    under the heading “Applicable Law/Place of Jurisdiction” it stated that the agreement “..and any disputes arising there from for any legal reason whatsoever” were to be governed and construed “exclusively in accordance with the laws of the Federal Republic of Germany”, and provided that the place of jurisdiction was Frankfurt.

 

4.           During the hearing itself, the judge was not referred by either counsel to the Brussels I Regulation (EC Council Regulation 44/2001 of 22 December 2000). However, having reached his decision in the absence of reference to the Brussels I Regulation, and concluded that the Tribunal had no jurisdiction over the sex discrimination and equal pay claims, an application was made by the Claimant for him to review his decision which in part relied on that Regulation. He declined a review, no ground of review appearing to him to be applicable and in particular it not having been made out to his satisfaction that the interests of justice required it.

 

 

 

 

The Legal Framework

 

5.      A distinction must be made between each of three matters: (a) the territorial scope of a domestic statute; (b) the applicable law relating to a contract or tort; and (c) the place (forum) where a case is determined. 

 

6.      It is axiomatic that the fact that a UK statute purports to apply with worldwide effect does not have the consequence that the parties trying their dispute in a foreign jurisdiction must determine it in accordance with the English statute.  Nor, depending upon the wording of the statute itself, does it necessarily follow that if the dispute is to be determined in the United Kingdom, it will be determined in accordance with the statute as applicable law, rather than a different system of law which the parties have agreed should be applicable. 

 

7.      As Elias J put it in Bleuse v MBT Transport Ltd and Another [2008] ICR 488 at paragraph 46:

“the Brussels Regulation is concerned with which courts should hear a claim; it does not affect the content of the substantive law applicable to the claim itself.”

 

8.      In her article in the Industrial Law Journal 2010 (pages 355 et seq) Louise Merrett distinguished between the three quite different contexts in which the word “jurisdiction” was commonly used:

 

“First, in all cases where there is a foreign element, the question arises as to whether the English court or tribunal has jurisdiction to hear the case at all or whether it should be heard in a foreign court … this is an issue of private international law and will be referred to as international jurisdiction.  If the Defendant is domiciled in a Member State of the European Union, the question of international jurisdiction must be determined by applying the rules of the Brussels I Regulation … Secondly, in domestic cases or in foreign case where England has international jurisdiction, there may be an issue as to which domestic court or tribunal should hear the case: for example, should the case be heard in the High Court or County Court, or in some countries by a court in a particular district?  This issue will be referred to as domestic jurisdiction.  In employment cases, this issue is of particular significance.  That is because of the role of Employment Tribunals in enforcing employment rights.  Broadly speaking, ‘normal’ Common Law claims, for example in tort arising from injuries sustained at work, or in contract, are brought in the Common Law courts … whereas statutory employment rights must be enforced through the Employment Tribunals … Thirdly, even if the court or tribunal has jurisdiction to hear the claim in both the senses described above, and English law applies, in the case of statutory employment rights the Claimant must show that he falls within the scope of the relevant legislation … most statutory rights have either express or implied territorial limits which must be satisfied … this last issue … will be referred to as territorial scope.”

 

 

9.     She commented that it was crucial that those three issues should be considered separately and (page 359) that:

“just because a claimant satisfies the territorial limits in relation to a  particular right and can prima facia assert a substantive employment right, does not mean that the Tribunal will have jurisdiction, at least  in the international sense, to hear the claim”.

 

10.  The claims in the present case were for sex discrimination and failure to ensure equal pay.  The legislation applying to the claims at the time was that of the Sex Discrimination Act 1975 and Equal Pay Act 1970.  Section 6 of the 1975 Act makes it unlawful for a person in relation to employment by him at ‘an establishment in Great Britain’ to discriminate against a woman in the respects set out in Section 6.  The Equal Pay Act 1970 (which despite its date came into force on 29^th December 1975 together with the Sex Discrimination Act 1975, the two Acts together forming a code designed to combat discrimination in respect of employment) by Section 1 deems a contract ‘under which a woman is employed at an establishment in Great Britain’ … to include an equality clause as thereafter defined. 

 

11.  Section 10 of the Sex Discrimination Act provides:

“(1)  For the purposes of this Part and section 1 of the Equal Pay Act 1970 … employment is to be regarded as being at an establishment in Great Britain if – a) the employee does his work wholly or partly in Great Britain, or b) the employee does his work wholly outside Great Britain and sub-section (1A) applies.

 

(1A) This sub-section applies if a) the employer has a place of business at an establishment in Great Britain b) work is for the purposes of the business carried on at that establishment, and c) the employee is ordinarily resident in Great Britain – i) at the time when he applies for or is offered the employment or ii) at any time during the course of the employment …”

 

12.  The Employment Judge concluded at paragraph 23:

 

“If the UK law applies to the employment relationship in this case, then it is perfectly clear that the UK Employment Tribunal would have jurisdiction by virtue of section 10 (a) because although the claimant was based in Germany and worked a lot in Germany and elsewhere on the Continent, she also partly worked in London and thus she would fall squarely within the provisions of section 10 (a) for the purposes of her Sex Discrimination claim and her Equal Pay claim.” 

 

 

13.  By “Section 10 (a)” must be meant Section 10 (1) (a) rather than 10 (1A).  This is a finding of fact.  There is no complaint about it. 

 

14.  At paragraph 24 and following, the Employment Judge said this:

“However, there is a prior and more important question, namely whether UK law applies at all.  If, applying Articles 3 and 6 of the Rome Convention, the parties’ employment contract and relationship is not subject to UK law (i.e. UK law is not the proper law of that contract) then neither party can rely upon UK statutes such as the Sex Discrimination Act including Section 10 (1) (a) and for that matter Section 77 which contains anti-avoidance provisions.

 

25.  In my view the parties chose German law to be the proper law of the contract.  In this regard for the purposes of article 3.1 of the Rome Convention, I refer to the terms of the written contract itself and to the general circumstances of the case.

 

26.  For the purposes of Article 6.2 in the absence of a choice of law clause Germany would be the country in which the claimant habitually carried on her work and so the employment contract would be governed by the law of Germany. 

 

27.   Under Article 6.1 the expressed choice of law clause does not have the effect of displacing the Mandatory Rules which would otherwise have applied if the expressed choice of law clause had not been agreed to. 

 

28.  Seeing the German law applies to the relationship, UK law does not. 

 

29.  This means that the claimant cannot rely on the provisions of the UK Sex Discrimination Act and the Equal Pay Act to bring a claim in the UK courts or tribunals.  She must rely upon German law. 

 

30.  It is not disputed, and in any event I find that German law contains equal provisions to those in the UK law and would provide an effective Remedy or would have done so”

 

(This last proposition is not challenged before me either):

“31.  By virtue of the fact that the claimant was based and worked in Frankfurt and virtue of the Frankfurt jurisdiction clause the Frankfurt courts or tribunals have exclusive jurisdiction.

 

32.  For these reasons I conclude that the UK employment tribunal does not have jurisdiction over the claimant’s Sex Discrimination claims and Equal Pay claims.”

 

15.       Thus in respect of the three distinct matters to which I referred at paragraph 5 above, the Employment Judge found that the forum for hearing should be Germany and that German law was the applicable law, but that the territorial scope of domestic legislation was wide enough to embrace the claims. 

 

The Rome Convention

 

16.  The Contracts (Applicable Law) Act 1990 provides by Section 2 for the Rome Convention, amongst others, to have the force of law in the United Kingdom.  As scheduled to the Act the Rome Convention describes its scope by Article 1 as being to apply “to contractual obligations in any situation involving a choice between the laws of different countries.” It does not obviously apply to torts.  However, the rights conferred by Section 6 of the Sex Discrimination Act 1975 and Section 1 of the Equal Pay Act 1970, are both applicable only where there is either a contract of employment as such or a contract “personally to execute any work or labour” (see Section 82 of the 1975 Act, Section 1 (6) of the 1970 Act).  Proof of such a contract is thus a necessary step in any claim. 

 

17.  Article 3 of the Rome Convention provides that a contract shall be governed by the law chosen by the parties.  However, Article 3 (3) provides:

“The fact that the parties have chosen a foreign law whether or not accompanied by the choice of a foreign tribunal, shall not, where all the other elements relevant to the situation at the time of the choice are connected with one country only, prejudice the application of rules of the law of that country which cannot be derogated from by contract, hereinafter called ‘Mandatory Rules’ ”.

 

18.        Article 4  prescribes the applicable law in the absence of choice:

 

“(1) To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected …

 

(2) … it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporated, its central administration.  However, if the contract is entered into in the course of that party’s trade or profession that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated.”

 

 

19.       Article 6 makes provision for individual employment contracts as follows:

 

“Notwithstanding the provisions of Article 3 in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the Mandatory Rules of the law which would be applicable under paragraph 2 in the absence of choice. 

 

2.  Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed:

(a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or (b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated; unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.”

 

 

20.       Article 7, headed ‘Mandatory Rules’ provides:

 

“1. When applying under this Convention the law of a country, effect may be given to the Mandatory Rules of the laws of another country with which the situation has a close connection, if and insofar as, under the law of the latter country, those rules must be applied whatever the law applicable to the contract.  In considering whether to give effect to these Mandatory Rules, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

 

2.  Nothing in this Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract.”

 

 

The Brussels Regulation

 

21.       The Brussels I Regulation concerns jurisdiction in civil matters (Article 1 (1) and Chapter II).  In the recitals to the Convention it is provided, in particular by Recital (11) that the rules of jurisdiction:

 

“must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor …”

 

 And by (13):

 

“In relation to  … employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for”

 

Thus Article 2 (1) provides:

 

“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. 

 

By Article 3 (1):

 

“Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the Rules set out in Sections  2-7 of this Chapter …”

 

 

22. Section 5 of the Chapter is headed “Jurisdiction over Individual Contracts of Employment”.  It consists of 4 articles and reads as follows:

 

“Article 18

1.  In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5”

 

(Neither of those latter articles is relevant here):

 

“2.  Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.

 

Article 19

An employer domiciled in a Member State, may be sued:  1) in the courts of the Member State where he is domiciled; or 2) in another Member State (a) in the courts or the place where the employee habitually carries out his work or in the courts for the last place where he did so or, (b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

 

(Article 20 is immaterial for present purposes):

 

Article 21

The provisions of this Section may be departed from only by an agreement on jurisdiction: 1) which is entered into after the dispute has arisen; or 2) which allows the employee to bring proceedings in courts other than those indicated in this Section.

 

Article 23 (contained in Section 7 which is entitled “Prorogation of Jurisdiction”) provides materially as follows:

“1.  If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction.  Such jurisdiction shall be exclusive unless the parties have agreed otherwise.  Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; …”

 

 

23. Under Chapter V Article 60 it is provided that for the purposes of the Regulation that a company is domiciled in the place where it has its

 

“a) statutory seat, or b) central administration, or c) principal place of business”  

 

By Paragraph 2 it is provided:  

 

“for the purposes of the United Kingdom and Ireland “statutory seat” means the registered office ….”

 

24.       As the contract itself appears to recognise, given the address of Intralinks the place of registration of the employer in the present appeal, and hence its statutory seat, was the UK: but in any event the Judge so found at Paragraph 16 by describing the Respondent as “UK registered”.  Thus, under the Brussels Convention, Article 19, Intralinks could be sued in the courts of the UK – unless Article 23 applied or there was an agreement on jurisdiction permissible within Article 21.

 

Submissions

 

25.        The Appellant in her Grounds of Appeal argued that the Brussels I Regulation, and the Rome Convention were the legislative provisions which determined this case.  In a supplementary skeleton argument, received two days prior to the hearing, the Appellant changed tack.  Contrary to what had been the agreed position the Appellant sought to argue that the Employment Judge was in error of law in determining that the Rome Convention applied at all.  Mr. Horan submitted, now, that the only matter for the Court to consider was “the test in Section 1 (1A) of the Sex Discrimination Act 1975”.  What I understand the Appellant to have had in mind was not Section 1 but Section 10 (1A).

 

26.        I do not accept this argument.  The territorial scope of both the 1970 and the 1975 Act is wide enough to cover the case of the Appellant, as the Employment Judge himself recognised.  However, the scope of UK legislative provision cannot, in my view, dictate whether the Brussels Regulation is applicable or not: it does not draw the distinction between the three matters which, as I recognised at the start of this judgment, need to be kept apart.  Although otherwise I would have entertained the argument, since the issue in this case does not depend upon any fact which is in dispute, so that an Appeal Court is as well placed as the first instance Tribunal to determine the matter, and the legal issue is one which goes to jurisdiction, since if the argument had been heard I would have determined it on the merits as above, I formally decline permission to amend. 

 

27.             He argued that though the choice of law provisions in the Rome Convention provided freedom of choice, guaranteed by Article 3 (1), this was subject to Article 3(3):

 

“The fact that the parties have chosen a foreign law, whether or not accompanied by the choice of a foreign tribunal shall not, where all the other elements relevant to the situation at the time of the choice are connected with one country only, prejudice the application of rules of the law of that country which cannot be derogated from by contract, hereinafter called ‘Mandatory Rules’ ”. 

 

Mandatory Rules were also referred to in Article 6 (1) and Article 7 (2) provided:

 

 

“Nothing in this Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract.”

 

 

He argued that both the Sex Discrimination Act and the Equal Pay Act were Mandatory Rules of law within the meaning of the Rome Convention.  Thus Section 1 (11) of the Equal Pay Act provides:

“For the purposes of this Act it is immaterial whether the law which (apart from this sub-section) is the law applicable to a Contract is the law of any part of the United Kingdom or not”;

 

 

and the Sex Discrimination Act  provides by Section 77(3):

 

 

“A term in a contract which purports to exclude or limit any provision of this Act or the Equal pay act 1970 is unenforceable by any person in whose favour the term would operate apart from this subsection”

 

 

28.            Mr Horan submitted that the Brussels Regulation applied; and since Intralinks was domiciled in the United Kingdom, being registered there, could be sued according to Article 19. Thus he submits that the Employment Judge was in error in not considering that the Brussels Regulation provided that the UK was a forum within which jurisdiction was to be exercised; and, if so, the Rome Convention applied, such that the Appellant would enjoy the provisions of the Sex Discrimination Act and Equal Pay Act since they were mandatory rules of law.

 

29.             Ms Garner argued that the first question was that of forum.  Only when that had been decided, could applicable law be decided; and only then whether the territorial law scope of the UK Acts was sufficient to confer jurisdiction upon the Employment Tribunal.  Article 19 of the Brussels I Regulation is such that there were two choices of forum: “an employer … may be sued (1) in the courts of the Member State where he is domiciled or (2) in another Member State (a) in the courts of the place where the employee habitually carries out his work …” etc.  The question was not what was permitted, but which should be preferred.  Article 23 allowed for an agreement as to the place of jurisdiction which would have exclusive jurisdiction.  That, coupled with Article 19, meant that in this case the choice should be Frankfurt.  The choice of jurisdiction clause may have been signed prior to the commencement of the dispute, but it was not therefore invalid under Article 21 because to select Germany as a forum was not to depart from the provisions of Section 5 of the Regulation: for Article 19 (2) (a) provided that the employer might be sued where the employee habitually carried out his work, which in this case was Germany. 

 

30.             In any event, she argued, by Article 6 (2) of the Rome Convention the contract of employment in this case would be governed by German law as being the law of the country in which the Claimant habitually carried out her work in performance of the contract.  Article 6 (1) provided for 2 steps:  first identifying what the applicable law would have been under Article 6 (2) and only then what protection was afforded to the employee under the Mandatory Rules of the applicable law.  This second question did not arise for consideration in the present case since the law chosen by the parties coincided with that which would have been applicable under 6 (2) if not.

 

31.             If that last submission were in error, the reasoning in Lawson v Serco [2006] ICR 250, H.L. should be read across from Section 204 of the Employment Rights Act 1996, which that case concerned, to Section 1(11) of the Equal Pay Act 1970 for the purposes of the present case.  Although Dicey at Paragraph 33 – 098 read:

 

“although there is no express provision to this effect it would seem axiomatic that [the 1970 and 1975 Acts] be applied irrespective of the law applicable to the contract, so that where the foregoing criteria are satisfied their provisions will be treated as mandatory for the purposes of Art 6 and Art 7 (2) of the Rome Convention …”

 

this was written without reference to or contemplation of the effect of a choice of law or jurisdiction clause.  As to those cases which have thus far been decided in respect of jurisdiction (Bleuse v MBT Transport Ltd [2008] ICR 488, Duncombe v Department for Education and Skills [2010] ICR 815 and Williams v University of Nottingham (2007) IRLR 660 were mentioned) in none was there a choice of law or forum clause.  They were thus distinguishable.  The Claimant in those cases could not have obtained a remedy under any other choice of law: whereas, in the instant case, the Claimant’s rights in Germany would be no different from those in the UK since they derived from a common European source. Thus she drew attention as summarising her argument to a passage in the fourth Cumulative Supplement to the Fourteenth Edition of Dicey at 14-096 in which is said:

 

“In consequence, Lawson v Serco … will not apply and the scope of the right may depend, instead, on whether the contract of employment is governed by English law or the law of another Member State”

 

Finally, she drew attention to the precise wording of Article 6 where it dealt with Mandatory Provisions.  It does not apply where the result is to deprive the employee of the rule of law being exercised, but where it deprives the employee of “the protection afforded to him by” the Mandatory Rules of law.  The choice of law made by the parties here would not deprive the Appellant of that protection, since it would be as applicable in Germany as in any other Member State, being the same protection (as the Employment Judge found) albeit expressed in differently worded domestic legislation.

 

Discussion

 

32.             Article 19 of the Brussels Regulation provides for a choice.  To construe it as Ms Garner would wish me to do, such that only Hobson’s choice were available in circumstances such as those  of the present case would be to deprive the provision as to choice of its effect.  The Article contains no hierarchy as between paragraphs one and two. Moreover, if she were right that the court should determine which of the two options were preferable, that determination would have to be guided by the policy apparent from the wording of the recitals to the Regulation itself.  Recital 13 shows that policy is to protect the employee (as the weaker party to a contract of employment) by providing for rules of jurisdiction which were more favourable to him than the general.  Given this, I conclude that an employee has the choice provided for by Article 19, and there is nothing within the Regulation to restrict that choice to a preference determined by the court itself.  Further, to give the court that discretion would be to deprive the regulation of the certainty and predictability in operation to provide which is part of its function.  Section 7, headed ‘Prorogation of Jurisdiction’ is general to all the provisions of the Brussels Regulations.  Article 21 is particular to individual contracts of employment, coming within Section 5 as it does.  Article 21 does not, however, provide for that which gives an agreement on jurisdiction its formal validity.  It does seem to me that there is conflict between Articles 21 and 23:  Article 21 applies to contracts of employment, but the ‘Agreement on Jurisdiction’ to which it refers must be in a form which is recognised as conferring formal validity within Article 23.  I see no reason to deprive Article 21 of its clear words:  the provisions of Section 5 may be departed from ‘only’ by an agreement on jurisdiction which is entered into after the dispute has arisen.  Further and separately I note, too, that Article 21, Paragraph 2 is permissive – permitting an employee to bring proceedings in courts other than those which would otherwise be indicated by Section 5.  This underlines my conclusion as to the way the courts should approach exercise of the choice provided for by Article 19.

 

33.            Ms Garner asserts that the dispute arose prior to the contract being entered into.  That is contrary to paragraph 15 of the Judgment which gives the date of 2010 as the date the dispute began.  There has been no cross appeal.  This submission is therefore without foundation.

 

34.            Accordingly, I accept that the Claimant’s submissions that Article 19 permits the Respondent employer to be sued in the United Kingdom. 

 

35.            This conclusion resolves the question whether the Employment Judge was in error of law.  He could not have been in such error in his determination of January 2011, for the Brussels Regulation was not cited to him – unless it should be argued that he should have had a regard to it in any event, despite the submissions of counsel.  However, he was wrong to refuse a review upon the basis that his determination was correct, once he had been shown the Brussels I Regulation on 18^th January 2011 – at least insofar as his conclusion at paragraph 31 is concerned.  Unless, therefore, his overall conclusion was plainly and obviously right despite the error identified, the appeal must be allowed.  The question, which my conclusion as to the applicability of the Brussels I Regulation leaves unanswered, is just that:  is the applicable law such that the Employment Tribunal has no jurisdiction?  This depends upon the terms of, and application of the Rome Convention to which I now turn. 

 

36.             The applicable law is governed by the Rome Convention, since I have rejected the argument that the Rome Convention is irrelevant (see paragraph 26 above).  Article 6 (2) applies in order to determine what mandatory rules of law would apply in the absence of choice.  Paragraph 2 requires a court to look to the law of the country in which the employee habitually carries out his work in performance of the contract.  On the findings of fact here, that was Frankfurt (paragraph 14 of the decision).  There is a proviso:

“Unless it appears from the circumstances as a whole that the contract is more closely connected with another country …”

 

37.             Insight into how such a question may be resolved is given by recent case-law at the highest level. In Lawson v Serco Ltd [2006] UKHL3, the House of Lords considered a submission that the test of whether the policy of Section 94 of the Employment Rights Act 1996 required that an employee should be entitled to the benefit of the law of unfair dismissal applicable to Great Britain was to be determined by asking whether the employment relationship under which the employee worked had a closer connection with Great Britain (or perhaps with the British system of employment law) than with any other country or system of law.  Lord Hoffmann thought (paragraph 36 of his speech) that whereas that might well be a correct description of those cases in which the right to complain of unfair dismissal exceptionally applied to employees working outside Great Britain, it was framed in terms too general to be of practical help.  In giving such help, he suggested that it would be very unlikely for someone working abroad to be within the scope of Section 94 (1) unless working for an employer based in Great Britain - but that would not be enough.  Nor would the fact that the employee happened to be British or even that he was recruited in Britain: 

 

“38. Something more may be provided by the fact that the employee is posted abroad by a British employer for the purposes of a business carried on in Great Britain.  He is not working for a business conducted in a foreign country which belongs to British owners or is a branch of a British business, but as representative of a business conducted at home …

 

39. Another example is an ex-patriot employee of a British employer who is operating within what amounts for practical purposes to an extra-territorial British enclave in a foreign country.”

 

At paragraph 40 he observed that he had not been able to think of any other examples which would display equally strong connections. 

 

38.  The “Lawson v Serco” examples, illustrating the application of the test Lord Hoffman was considering, would not be satisfied on the facts of the present case, for the Claimant here was neither a representative of a British Company posted abroad where the company had no base of business in Germany, nor was she part of a British enclave.  In Duncombe v Secretary of State for Children, Schools and Families (2) [2011] UKSC36, Baroness Hale, delivering the judgment of the court, accepted that applying the  principle and examples identified by Lord Hoffmann the right (again, not to be unfairly dismissed) would only exceptionally cover employees working or based abroad.  She identified the principle as being that the employment must have ‘much stronger connections both with Great Britain and with British employment law than with any other system of law.’ The court identified a third example, to add to the two identified by Lord Hoffmann: that the Claimant’s employer was the British Government itself, that the employee was employed under a contract governed by English law in an international enclave that had no particular connection with the country in which it happened to be situated, was there because of commitments undertaken by the British Government, and not paying local tax; and it would be anomalous if a teacher employed by the British Government in a European school in England were to enjoy different protection from teachers who happened to be employed by the Government to work in the same sort of school in other countries.

 

39.  In Ravat v  Halliburton Manufacturing and Services Ltd [2012] UKSC1, [2012], IRLR 315, SC a Claimant living in Preston UK worked in Libya providing his services to a German company in the Halliburton Group.  He worked 28 days in Libya, followed by 28 days at home before repeating the cycle.  He was described by his employment contract as ‘an international commuter’ and was retained on a normal UK and pensions structure applicable to UK based employees in the company.  He paid UK tax and National Insurance at source.  The Employment Tribunal accepted jurisdiction, but the Appeal Tribunal reversed that decision holding that there was no test of ‘substantial connection’.  That decision was in turn reversed by the Inner House of the Court of Session, but with one dissentient, and differing reasoning given by the majority.  The Supreme Court dismissed a further appeal.  The test was regarded as one of fact and degree, relevant factors in which were that the Appellant’s business was based in Great Britain, the employee was treated as a commuter with a rotational working pattern familiar to workers elsewhere in the oil industry, and he had been given assurances that UK employment law would apply to him.  His termination of employment was handled by the Human Resources Department in Aberdeen.  His home was in Great Britain.

 

40.  The Court had in the previous decisions of the Supreme Court and House of Lords, accepted that the general rule is that the place of employment is decisive (paragraph 27) though this rule is not absolute:

“The open-ended language of Section 94 (1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified.  The case of the peripatetic employee who is based in Great Britain is one example.  The expatriate employee all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another. … the reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that Section 94 (1) should apply to them.  The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: Paragraph 36.  This was because … the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation.  It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive.  The case of those who are truly expatriate because they not only work but also live outside Great Britain, requires an especially strong connection with Great Britain and British employment law before an exception can be made for them. 

(29)  But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they were not both working and living overseas, must achieve a high standard that would enable one to say that their case was exceptional.  The question whether, on given facts, a case falls within the scope of Section 94 (1) is a question of law, but it is also a question of degree.”

 

 

 

41.            The present case does not involve Section 94, nor the Employment Rights Act.  Nor is the Rome Convention necessarily to be approached as if the proper interpretation of Article 6 (2) was that given to ‘close connection’ in English law for the statutory purposes of section 94.  The Convention is applicable to many states, not just the UK.  An autonomous definition is to be expected.  I therefore cannot accept Ms. Garner’s submission that the “Lawson v Serco” line of jurisprudence should simply be read across from the Employment Rights Act 1996 as if applicable to the instant case. However, the English jurisprudence to which I was referred by the parties is informative, even if not decisive. 

 

42.            The conclusion to which the Employment Judge as primary decision maker came to here (which, per Ravat, would in a Section 94 case be accorded considerable weight) is tersely expressed, but admirably clear.  It excludes any sufficiently close connection with British employment law for UK law to be applicable. 

 

43.            Quite apart from the fact that the Claimant lived and worked in Frankfurt, which was her base, and habitually carried out that work in Germany, the fact that the parties themselves agreed that German law would be the applicable law must have some relevance in determining the closeness of connection – albeit I accept that any such relevance must be mediated by the fact that Article 6(2), which contains the test of being ‘more closely connected with another country’ is the second paragraph in an Article, the first of which is prepared to moderate the effect of a choice of law clause.

 

44.             Accordingly, the Judge’s conclusion at paragraph 26 was open to him. I do not detect any error of law in it.

 

45.            Accordingly the mandatory rules of law referred to in Article 6 (1) do not apply under this Article.  German law is the applicable law of the contract, subject only to what follows. 

 

46.             Article 7 of the Rome Convention must now be considered.  This Article is not specific to an individual contract of employment.  It may, however, come into force if in the United Kingdom the Court hearing the case has to apply German law.  Then the Court may ask whether under the mandatory rules of UK law (where those rules must be applied whatever the law applicable to the contract) ‘it should give effect to those mandatory rules’.  In considering whether to do so:

“Regard shall be had to the nature and purpose and to the consequences of their application or non-application”. 

 

 

It appears that Article 7 Paragraph 1 is concerned with all situations in which in Forum A the law of a state other than that which constitutes Forum A is to be applied. Paragraph 2 deals clearly with the situation in which in Forum A the law of state B is to be applied.  In such a case, nothing in the Convention is to restrict the application of the rules of Forum A where they are “mandatory irrespective of the law otherwise applicable to the contract.”

 

47.            The provisions of the Equal Pay Act and of the Sex Discrimination Act 1975 are mandatory provisions by definition, because the law provides they may not be derogated from by agreement.  Further, this is what Dicey, Morris and Collins (14^th. ed.) would suggest, at paragraphs 33-096 and 33-098

 

48.            Nothing in the Convention therefore restricts the application of those Acts.  That, however, also does not finally resolve the issues between the parties.  It leaves unanswered whether there is anything in English law (apart from the Convention) which would have such a restrictive effect,

 

49.            Since neither Counsel had researched the question what the position might be if the effect of proper application of the Brussels I Regulation was such that the UK courts had jurisdiction, but if the Rome Convention were to be interpreted to the effect that the applicable law was German.  Accordingly, I invited further submissions to be made on paper (and if necessary supplemented by oral argument at the request of the parties).  Neither sought further oral argument.  The Appellant’s further submissions did not address the points on which I had looked for assistance. Points were however thoughtfully argued by the Respondent as follows:

 

(a) The Employment Tribunal being a creature of statute cannot adjudicate upon questions of German law;

 

(b)  The High Court can adjudicate, so far as the Equal Pay Act claim is concerned, since that Act is structured so as to imply a contractual term for the breach of which a party may sue, and the High Court has a general contractual jurisdiction.  This is apparent from the form of the Act itself, but if authority were needed, Birmingham City Council v Abdullah  [2012] ICR 20 recognises the point. 

 

(c)  The position in respect of the Sex Discrimination Act 1975 claim is different, since Section 63 of the Act provides:

“A complaint by any person … that another person … (a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II (as the allegations here would be I understand) … may be presented to an Employment Tribunal”

 

(d) Section 19 of the Senior Courts Act 1981 gives the High Court a general jurisdiction.  Commentary at 9A – 71 of the White Book suggests that where a statute can confer jurisdiction, the High court has it by virtue of this provision.

 

(e) Since Section 63 of the Sex Discrimination Act uses the word ‘may’ it is permissive in nature, not mandatory, and accordingly the statute does not oust the High Court’s jurisdiction and it can hear a claim under the Sex Discrimination Act.

 

50.            I accept that it would be open for the High Court to determine the question of a contractual claim, in respect of which the provisions of the Equal Pay Act, being mandatory were applicable notwithstanding the applicable law more generally being German.  I cannot however accept the Respondent’s submissions in respect of Section 19 of the Senior Courts Act, and its interaction with Section 63 of the Sex Discrimination Act. The 1975 Act provides no inherent common law cause of action, by contrast with the Common Law of contract recognised and built upon in the Equal Pay Act.  Those matters which, under Section 6 of the 1975 Act, are rendered unlawful acts in respect of employment give rise to a cause of action only because of Section 63, and not by virtue of common law  Indeed, Section 62 makes this abundantly clear:

“Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act.”

 

Accordingly, Section 19 of the Senior Courts Act has no place.  In any event, the reliance on the commentary at 9A – 71 of the White Book is misplaced.  Section 19 itself reads (omitting immaterial words):

 

“…(2) … there shall be exercisable by the High Court – (a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act (including jurisdiction conferred on a Judge of the High Court by any statutory provision).”

 

 

51.            Section 19 (2) thus gives two sources for the jurisdiction of the High Court: the express conferment by statute of a right to hear a matter; and that jurisdiction which was exercisable immediately prior to the coming into force of the 1981 Act.  The first does not apply; nor does the second insofar as the Sex Discrimination Act 1975 is concerned.  The commentary considers the effect of statutes which might be construed so as implicitly to exclude jurisdiction where it would otherwise be exercisable, rather than suggests that the plain words of a statute allocating jurisdiction to one domestic forum alone do not apply.  Since the jurisdiction under the Sex Discrimination Act is not made exercisable in the High Court by any statute in the first place, it is an unnecessary and irrelevant inquiry to ask if any other statutory provision would implicitly exclude that jurisdiction

 

52.            Nor do I accept that an Employment Tribunal cannot determine questions of German law.  In a claim which is brought under the Sex Discrimination Act 1975 it is authorised to determine relevant questions of fact.  Foreign law is a question of fact.  Accordingly, though (on this analysis) German law is applicable, though it must yield to the mandatory rules of UK law where they apply, then if the claim can properly be brought under the Sex Discrimination Act (even though such an Act does not, so far as I am aware, apply under German law) a Tribunal can adjudicate upon it.  It can determine the facts.

 

Conclusion

 

53.            In conclusion, the Brussels I Regulation applies, such that by Article 19 Intralinks may be sued in the United Kingdom.  This is not excluded by the agreement reached as to the proper forum from hearing disputes, since on the facts this was not an agreement which comes within the terms of Article 21.   

 

54.            The effect of the Rome Convention, which is applicable because proof of contract is a necessary step in the claim, is that German law is the applicable law.  However, Article 7 (2) provides that nothing in the Convention is to restrict the application of mandatory rules of the law of the forum. The effect of Article 7 (2) is thus that the provisions of Section 6 of the Sex Discrimination Act and Section 1 of the Equal Pay Act (which are such mandatory rules) are applicable notwithstanding that the applicable law generally is German.  Given that jurisdiction in respect of the Equal Pay Act and Sex Discrimination Act is applicable without territorial limit, and the provision as to applicable law does not restrict the territorial scope of those provisions nor their applicability, a court in the UK would have to apply those provisions.  That court may (so far as the 1970 Act is concerned) and must (so far as the 1975 Act is concerned) be the Employment Tribunal.

 

55.            Whether the matter is considered as, in effect, being a claim under the Sex Discrimination Act and Equal Pay Act in which the question whether there is a contract of employment as a passport to the required rights is to be determined by German rather than English law, or whether the matter is approached by regarding Sections 62 and 63 of the 1975 Act as procedural rules, rather than substantive, in directing where provisions which court should apply European law in the domestic jurisdiction (since it is part of the State’s duty to implement the Equal Treatment Directive and the principle of Equal Pay under the EU Treaty), and hence, as part of the lex fori, thus providing for jurisdiction in the Employment Tribunal, the Tribunal has jurisdiction. 

 

56.            The claim may not be the easiest in some respects to determine, since provisions of German law may have to be determined as a matter of fact before the Tribunal, in order to satisfy the Tribunal at the outset that it may permissibly go on to determine the facts and apply the two Acts to them, since whether there is a contract of employment within the extended meaning given to that phrase in the Acts may depend on that law rather than English common law: but that the Tribunal has jurisdiction is on this basis clear.

 

57.            The Employment Judge was in error of law in concluding as he did in paragraph 28 “seeing the German law applies to the relationship, UK law does not”, in that he did not consider the effect of Article 7 (2) of the Rome Convention (though I suspect that he was not referred to it) and, as I observed above, because he did not determine the applicability of the Brussels I Regulation – in this case, certainly because neither advocate invited his attention to it until the application for a review, in respect of which his reasons for rejecting a review were simply insufficient.  The interests of justice plainly required such a review.  It should have been granted.  If it had been granted, it must have been allowed.

 

58.             Though it may seem at first blush counter-intuitive that where parties agree both that the law which will govern their employment relationship is foreign, and that the courts in which any employment dispute are to be heard are also foreign, nonetheless the employee is permitted to choose to litigate the issues in the United Kingdom.  Once, however, the policy of the international conventions is understood to be that employees need protection, as being generally in a weaker position than employers when negotiating their contracts of employment, such that the law should redress the imbalance by providing the employee with a choice of which otherwise the unequal terms of a contract would deprive him, then the consequence is (in general) is not counter-intuitive, but may be seen as (in general) tending to justice. 

 

59.            The matter at issue being a pure question of law, with no further relevant facts requiring to be heard, the appeal is allowed and the case remitted to the Employment Tribunal for determination; it is declared the Employment Tribunal has jurisdiction to consider complaints that the Equal Pay Act 1970 and the Sex Discrimination Act 1975 have been broken, but in doing so it will apply German law on any issue other than those upon which the provisions of the 1970 and 1975 Acts are mandatory.  This is most likely to be whether there is a contract of employment (it being necessary to prove this as a passport to the rights under each of the statutes concerned), though I do not exclude the potential for arguments being put to the Tribunal concerning compensation.