Simpson v Intralinks Ltd

An employee may sue an employer in the courts of the employer’s Member State under Article 19 of the Brussels I Regulation. A prior jurisdiction clause cannot remove that choice unless it satisfies the special requirements for employment contracts in Article 21.

The Rome Convention may make foreign law the law applicable to the employment contract. That does not prevent the forum from applying mandatory rules of its own law. The territorial scope of the Sex Discrimination Act 1975 and Equal Pay Act 1970 was sufficiently wide, and their relevant provisions were mandatory. The Employment Tribunal therefore had jurisdiction, although German law might govern issues such as whether a qualifying contract existed.

The claimant worked principally in Frankfurt for a UK-registered employer. Her contract selected German law and Frankfurt as the place of jurisdiction. She brought claims under the Sex Discrimination Act 1975 and Equal Pay Act 1970 in an Employment Tribunal in England.

The Employment Judge held that German law applied and that the Frankfurt clause gave the German courts exclusive jurisdiction. He was not referred to the Brussels I Regulation during the preliminary hearing and later refused a review after it was raised.

The appeal concerned whether the United Kingdom was an available forum, whether German law governed the contract, and whether the UK legislation nevertheless applied as mandatory law.

1. Appeal allowed and remitted. The Employment Judge should have reviewed his decision once the Brussels I Regulation was identified. The interests of justice plainly required a review.

2. Article 19 of the Brussels I Regulation gives an employee a choice between suing the employer in the Member State of its domicile and suing in another Member State where the employee habitually works. The Regulation contains no hierarchy between those alternatives. The court should not replace the employee’s choice with its own preference.

3. Article 21 permits departure from the employment jurisdiction provisions only by an agreement entered into after the dispute has arisen, or by an agreement allowing the employee to sue elsewhere. Article 23 supplies the formal requirements for a jurisdiction agreement, but does not displace Article 21’s substantive protection. The pre-dispute Frankfurt clause was therefore ineffective to exclude UK jurisdiction.

4. The Rome Convention governed because proof of a contract was necessary to the statutory claims. Under Article 6(2), German law was applicable: the claimant habitually worked and lived in Frankfurt, and the circumstances did not show a closer connection with another country. The exceptional approach developed under section 94 of the Employment Rights Act 1996 was informative but could not simply be transposed to Article 6(2).

5. Article 7(2) of the Rome Convention preserved mandatory rules of the law of the forum. The relevant provisions of the Sex Discrimination Act 1975 and Equal Pay Act 1970 were mandatory and their territorial scope was not displaced by the choice of German law.

6. The Employment Tribunal could determine relevant questions of German law because foreign law was a question of fact. It had jurisdiction to determine the statutory claims, applying German law where relevant except where the UK Acts supplied mandatory rules. The case was remitted for determination.

• Employment Tribunal: The Employment Judge held that German law applied and that the UK Employment Tribunal lacked jurisdiction.
• Employment Appeal Tribunal: The appeal was allowed. The decision was remitted to the Employment Tribunal, which was declared to have jurisdiction to consider claims under the Equal Pay Act 1970 and Sex Discrimination Act 1975.