Duties on the Employment Tribunal to clarify its jurisdiction to hear a claim brought by a foreign national
In the case of Partners Group (UK) Ltd and another v Mulumba UKEAT/0237/20/RN, the Employment Tribunal ('EAT') considered whether the Employment Tribunal ('ET') should have clarified whether the Claimant had sufficient connection with British Employment law to fall under its jurisdiction, and at what point the connection was established.
Partners Group (UK) Ltd and another v Mulumba UKEAT/0237/20/RN
The Claimant was a national of the Democratic Republic of Congo, employed by Partners Group (USA). The Claimant worked in the US, Switzerland and then for Partners Group (UK) in London for 18 months under an Associate Program for the Respondent.
The Claimant remained employed in London after her Associate Program finished, while she looked for other work. This was on a "good will basis" between the two parties. Following the termination of her employment with the Respondent, the Claimant brought claims in the ET relating to her employment in the US, Switzerland, and the UK. The claims were for automatic unfair dismissal as a result of having made a protected disclosure, unlawful discrimination, harassment and victimisation.
The ET held that it had jurisdiction to hear the claim. This was on the grounds that, while in London, the Claimant reported to London based managers and worked with UK individuals within the Infrastructure and Private Market teams. Furthermore, the Claimant had lived and worked exclusively in London for the last 18 months of her employment; almost exclusively on UK matters during her time in London and she did not return to the US either in advance of or after the termination of her employment.
However, the Respondent appealed against this decision, requesting clarification on which claims had fallen under the scope of the statutory protection issue. They also requested the precise date on which territorial jurisdiction had been established in relation to the Claimant's employment in London.
The EAT allowed the appeal on the basis that the ET had not made it clear that it did not have jurisdiction to hear all the claims, given that some of the allegations pre-dated the Claimant's employment in London.
The EAT further clarified that the Claimant's employment did not automatically fall under UK employment law when she moved to the UK. However, this relationship evolved over time and the ET had failed to determine when a connection to UK law had been established.
The EAT has referred the matter back to the ET for them to consider the claim relating to issues within the UK.
What does this mean for employers?
While this considers the role of the ET in establishing jurisdiction, it is also useful for employers to bear in mind potential jurisdictional issues which can arise when employing foreign nationals or when operating abroad.
A foreign employee working in the UK will not automatically fall within the territorial scope UK employment law. It will need to be established whether or not the circumstances of the employment are such that it would be appropriate for an employee to bring a claim in the UK, such as the level integration of the employee in this country.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Valerie Bond to discuss any issues you are facing.