30 August 2023|
Litigation, Disclosure and ADR Procedure
What does recent case law tell us about the Employment Tribunal’s territorial jurisdiction?
International employment disputes – what does recent case law tell us about the Employment Tribunal’s territorial jurisdiction?
At Farore Law, we have considerable experience of advising and acting for clients in cases which have an international dimension, whether as Whistle-blowing or discrimination lawyers. We recently acted for an international news anchor, who had been subjected to discrimination and sexual harassment by a leading media company, on the legal merits of commencing proceedings in the United Kingdom, despite her place of work being in the Middle East. In such cases, establishing a jurisdictional connection involves careful consideration of the extent to which a person’s employment, and any detriments to which they have been subjected, are connected to the UK. We were able to put forward a persuasive argument on jurisdiction and therefore significantly improved our client’s position.
This post addresses the latest instalment in the case law on the Employment Tribunal’s (“ET”) jurisdiction. In a recent Judgment following a Preliminary Hearing, Employment Judge (“EJ”) Klimov addressed similar jurisdictional considerations to those that our client faced. We discuss that case and the implications of it for those engaged in international employment disputes.
The background to and legal claims in Mohsin v CNN
As a preliminary issue, EJ Klimov had to determine whether Saima Mohsin, a British presenter and international correspondent, was able to bring claims against CNN in respect of unfair dismissal and discrimination. This turned on whether the ET had jurisdiction to hear these claims in light of the international scope of Ms Mohsin’s employment relationship with CNN.
In 2014, Ms Mohsin had been reporting from Jerusalem on the Israeli-Palestinian conflict. During the course of her working activities she sustained a severe injury when her cameraman drove over her foot – this left Ms Mohsin with “extensive soft tissue damage and a crippling neuropathic pain condition” (Doughty Street). Following the injury, Ms Mohin requested that CNN make reasonable adjustments to accommodate her disability(ies), which included alternative duties, reduced hours and presenting instead of field duties. CNN, however, refused to make these adjustments. In 2017, CNN terminated Ms Mohin’s contract whilst she was on medical leave.
As a result of these events, Ms Mohsin brought claims against CNN including for unfair dismissal, disability discrimination, victimisation, failure to make reasonable adjustments and brought an equal pay complaint. CNN denied that the UK ET had jurisdiction to consider Ms Mohsin’s claims as there was an insufficient connection with the UK. CNN further denied that the ET had international jurisdiction, either through the Recast Brussels Regulations or domestic law.
The Employment Tribunal’s conclusions
The ET disagreed. It held that the Claimant had demonstrated a sufficient connection with the UK for her unfair dismissal claim and discrimination claims (insofar as they occurred after 1 March 2017) to be heard in the UK. The ET further held that the Claimant satisfied the Recast Brussels Regulations and domestic law in respect of international jurisdiction.
Key take aways
Establishing jurisdiction is fundamental to bringing an employment claim: if the ET concludes that it does not have jurisdiction to hear your claim then it is liable to be struck out. As a general rule, it is unusual for an employee who works and is based abroad to fall within the territorial scope of UK employment legislation (Lawson v Serco Ltd  UKHL 3). However, where the employee is based abroad and all of their work is for the benefit of his or her UK-based employer, that will be a strong factor in overcoming the jurisdictional barrier to bringing a claim. A further relevant factor is the extent to which the employee is able to bring a claim in the territory in which they work; if they have no remedy elsewhere that will be a weighty factor in favour of establishing territorial jurisdiction in the UK.
Establishing jurisdiction is a highly fact-sensitive and complex exercise. Farore Law has worked on high profile cases involving these issues and would be pleased to assist those considering, currently undertaking or defending action in cross-border employment disputes.
In the news anchor case we handled, we were able to persuade the employer of the likely successful outcome of our client bringing a claim in the English courts. Any attempt by her employer to strike out the claim would result in a public hearing which would be reputationally damaging for the company. We were able to find a sufficient nexus with the UK, related in part to where the harassment occurred and where the perpetrator was located when the harassing emails were sent.
Please contact us should you have a cross-border dispute involving discrimination, whistle-blowing and misconduct.