Out of sight, out of mind: when does the Employment Tribunal have jurisdiction to hear claims concerning a Claimant working abroad?

In Cable News International Plc v Bhatti [2025] EAT 63, the Employment Appeal Tribunal (“EAT”) upheld a decision from the Employment Tribunal (“ET”) that it had both international and territorial jurisdiction to hear claims of a peripatetic journalist who was mainly based in Asia but later moved to London at latter stages of her employment.

Farore Law regularly advises senior executives in complex employment disputes that give rise to issues regarding international and territorial jurisdiction. For example, we have previously represented an international journalist (based in the Middle East) in a sexual harassment and sex discrimination claim against her UK-based employer and a senior executive based in the United States. We also have considerable experience in litigating against foreign-based corporate and individual Respondents in the ET.

This case note solely focuses on the EAT’s decision regarding territorial and international jurisdiction.

The Facts

The Claimant was a British national who worked for the Respondent from 2013 to late 2017 as a journalist by the Respondent (domiciled in Atlanta, Georgia) under a contract of employment governed by the laws of Georgia (USA). The Respondent had a subsidiary in London, with which the Claimant had dealings during the course of her employment.

Throughout her employment, the Claimant was predominantly based in Asia, but travelled regularly across the world as part of her job. When not reporting abroad, she would return to London for holidays and would frequently visit the Respondent’s London bureau from which she was sometimes deployed.

However, from March 2017, the Claimant moved from Bangkok to London seeking to carry out assignments in London. The Claimant only in fact carried out one assignment for the London bureau following her move in March 2017, since the Respondent instructed its London subsidiary not to deploy the Claimant on assignments without permission from the Atlanta headquarters. 

The Respondent refused the Claimant’s request to become London based. The Claimant was then dismissed in August 2017 in their London subsidiary’s offices (although her effective date of termination only took place on 31 December 2017).

The Claimant then brought a variety of claims against the Respondent, including victimisation, unfair dismissal and equal pay.

The ET held that it had jurisdiction to hear the Claimant’s claims, but only in respect of wrongs committed on or after 1 March 2017 (when the Claimant relocated to London), since the Claimant had displaced the ‘territorial pull’ from Bangkok as her base by moving to London and seeking assignments from the London bureau. The ET also held that it had the international jurisdiction to determine these claims, since it was inconceivable that Parliament could have intended that wrongs within the territorial reach of the statutes (i.e. England and Wales) should be outside the Tribunal’s jurisdiction, leaving the Claimant with rights but no remedy.

The Respondent appealed, contending that the ET was wrong to hold that the claims fell within the territorial scope of the employment statutes and that the ET did not have the international jurisdiction to determine any of them.

The EAT decision

Territorial jurisdiction

The EAT concluded that the ET was entitled to conclude based on the evidence that until the end of February 2017, the Claimant was a peripatetic employee working for a US employer primarily in Asia, with her base in Bangkok. The ET was also entitled to conclude that from March 2017, the Claimant’s base shifted to London after she relocated there.

The EAT observed that the sufficiency of connection test was an evaluative judgment for the ET to undertake (based on the evidence) and that London was her work base from March 2017 onwards.

The EAT also noted that it was significant how:

• The Claimant sought to use London as her work base after relocating in March 2017.
• The Claimant was previously a frequent visitor to the London bureau and had an ID pass allowing her to attend the London bureau at will.
• The Claimant was issued a Blackberry from the London bureau and was on the London bureau’s email distribution list even before the Claimant moved to London in March 2017.
• The Claimant was allowed to be deployed directly by the London bureau until the Respondent imposed restrictions on the Claimant’s ability to receive assignments directly from the London bureau. 

Although the Claimant’s contract of employment was governed by the laws of Georgia, the ET observed that this did not have any particular weight since neither party suggested that the Claimant’s employment was more closely connected to Atlanta than to Bangkok or London.

International jurisdiction

The EAT rejected the Respondent’s additional submission that the ET did not have international jurisdiction to hear the Claimant’s claim due to the provisions of the Brussels Regulation (which was applicable at the time since the Claimant’s claim was issued before the UK left the European Union). Although the Claimant’s contract of employment contained an exclusive jurisdiction clause (in favour of the courts of Georgia, USA), the Brussels Regulation does not confer on a non-EU domiciled defendant the right to be sued exclusively in the courts of its non-EU domicile.

The ET was correct to conclude that it had the international jurisdiction to hear the Claimant’s claims, since the Brussels Regulation provides that an employer not domiciled in an EU member state may be sued in the court of any member state where the Claimant habitually worked or last habitually worked (or in the courts of the place where the business engaged the Claimant is or was situated). On the facts, this was the UK and so the ET had the international jurisdiction to determine the Claimant’s claims.

The Brussels Regulation has since been superseded post-Brexit by the added provisions of the Civil Jurisdiction and Judgments Act 1982 (“CJJA”), however s 15C CJJA also state that an employer domiciled abroad can be sued in the UK if this was where the Claimant habitually worked or last habitually worked (or was the placed where the business that engaged the Claimant is or was situated).  

Significantly, however, the EAT disagreed with the ET’s assertion that rule 8 of the ET’s Rules of Procedure 2013 (now rule 10 of the 2024 Procedure Rules) confers on the ET international jurisdiction. The purpose of rule 10 (as it is now) is to merely allocate cases between the tribunals in England & Wales and Scotland. It cannot, however, confer jurisdiction in circumstances where otherwise there is none. In any event, however, the ET’s error was immaterial since the ET had international jurisdiction anyway.

What to take away

We had previously written a blog post about international jurisdiction (see post here), in which we had examined the circumstances where a claim can be brought in circumstances where the Respondent is based abroad.

The Bhatti decision is important as it emphasises that:

• Whether the ET has international jurisdiction to hear a claim is separate from the question of whether there is territorial jurisdiction to apply employment statutes. Significantly, rule 10 of the 2024 Procedure Rules cannot confer international jurisdiction. That is instead determined by the Brussels Regulation (for claims issued before 1 January 2021) or the CJJA (which are the applicable jurisdictional rules post-Brexit).
• Whether there is territorial jurisdiction to hear a statutory employment claim brought by a peripatetic worker ultimately requires an evaluative judgment from the ET to decide whether there is a sufficiently strong connection with the UK

However, it is of note that the Brussels Regulation and the CJJA is solely concerned with establishing international jurisdiction with claims against employers. It is not applicable where the Claimant decides to also issue a claim against an Individual Respondent (which is common with discrimination and whistleblowing claims). 

In TwistDX Limited v Armes [2024] EAT 45, the Claimant conceded that the Brussels Regulation could not be used to establish that the Employment Tribunal had international jurisdiction over US individuals and sought to rely on rule 8 of the ET Rules 2013 instead. Bhatti however confirms that rule 8 of the ET Rules 2013 cannot be relied upon for the purposes of establishing international jurisdiction.

In the absence of the Brussels Regulation or the CJJA applying, this then leaves the Claimant with no choice but to rely on common law rules concerning conflict of laws, an argument which the Respondents in Armes alluded to but which the EAT made no findings on.

Notwithstanding the continuing ambiguity over how international jurisdiction can be established on an individual Respondent, it is notable how in our experience some Respondents do not take this as a preliminary issue. For instance, many Respondents will simply accept as a matter of course that if the ET has international jurisdiction against the employer, then it also has international jurisdiction over a foreign-based individual Respondent as well.

Importantly, and in conclusion, there is risk in Respondents raising preliminary issues concerning jurisdiction, because the English courts will accept jurisdiction in the following circumstances –

• Another party is being sued in England (“the anchor defendant”) and there is: (a) a real issue between the Claimant and the anchor defendant; and (b) the Claimant add a person based abroad as a party to the proceedings because that person is a necessary and proper party to the claim – but there needs to be a sufficient common thread between the co-defendants. This is to avoid claims being heard at the same time from multiple jurisdictions and to avoid the risk of irreconcilable judgments; or
• There is a tortious claim where damage occurs in England or results from an act in England. 

How can we help?

Farore Law is a boutique employment litigation firm for senior executives, with extensive experience in high-value cross-border employment litigation. We are very well placed in advising clients on jurisdictional issues when bringing claims against foreign Respondents and Defendants.

Please contact us if you require legal advice.