Powell v OMV Exploration & Production Ltd

For jurisdiction under the Brussels 1 Regulation, an employee may sue an employer domiciled in a Member State either in that State or, where article 19 applies, in the Member State in which the employee habitually works. The habitual-work inquiry seeks one principal or effective centre of working activities. Work done occasionally during rest periods elsewhere does not displace that centre.

The territorial reach of the Employment Rights Act 1996 depends on whether the employment has a sufficiently strong connection with Great Britain and British employment law. This is a fact-sensitive assessment. An international commuter need not meet the especially high threshold applicable to a person living and working abroad, but foreign work, a foreign employer and a foreign governing law may decisively weaken the connection.

The claimant lived in England but was employed by a company incorporated in the Isle of Man. He was recruited for overseas work, initially in Yemen and then in Dubai. He worked three weeks in four in Dubai and spent his rest week at home in England, during which he performed limited work in the United Kingdom.

His contract selected Manx law and the exclusive jurisdiction of the Manx courts. The Employment Judge at North Shields dismissed his employment claims, holding that the respondent was domiciled in Austria for the purposes of the Brussels 1 Regulation, that the claimant did not habitually work in a Member State, and alternatively that his employment fell outside the territorial scope of the Employment Rights Act 1996.

The appeal concerned international jurisdiction and, alternatively, whether the employment had a sufficiently strong connection with Great Britain and British employment law.

1. Appeal dismissed. The Employment Judge was entitled to find that the respondent was domiciled in Austria. Although the evidence was limited and the reasoning could have addressed article 60 more systematically, the judgment had to be read as a whole. The evidence supported findings that the Isle of Man presence was nominal and that the respondent's administration and operation were conducted from Vienna.

2. Article 19 gave the employee a choice between suing in the employer's Member State of domicile and, if applicable, the Member State in which the employee habitually carried out work. The habitual-work question is one of fact and judgment. Applying Mulox, Rutten and Koelzsch, it requires identification of one country in or from which the employee principally performed the essential part of his duties.

   The Judge was entitled to identify Dubai as that place. The claimant's limited work in the United Kingdom during rest periods did not establish habitual work there. Dubai was not a Member State, so article 19 did not confer jurisdiction on a United Kingdom tribunal.

3. Although unnecessary to the disposition, the EAT upheld the alternative territorial-scope conclusion. Under the sufficiently strong connection test explained in Ravat v Halliburton, an international commuter's home in Great Britain makes the required connection less onerous than for a person both living and working abroad. The inquiry nevertheless remains whether the connection with Great Britain and British employment law is sufficiently strong for the statute to apply.

   The claimant's residence, recruitment and some work in the United Kingdom were relevant. However, the respondent was not British, the agreed and actual work was principally overseas, and the contract selected Manx law and Manx jurisdiction. Those matters permitted the conclusion that the connection was insufficiently strong. The finding disclosed no error of law or perversity.

• Employment Appeal Tribunal: dismissed the claimant's appeal and upheld the Employment Judge's dismissal of the claims for want of international jurisdiction; it also upheld the alternative conclusion on territorial scope.
• Employment Tribunal, North Shields: on 11 December 2012, dismissed the claims. It found that the respondent was domiciled in Austria under the Brussels 1 Regulation and that the employment was outside the territorial scope of the Employment Rights Act 1996.