Dhunna v CreditSights Ltd

The Court of Appeal allowed the employer's appeal and restored the Employment Tribunal's decision that it had no territorial jurisdiction to hear the claimant's unfair dismissal and right-to-be-accompanied claims. The appeal turned on the territorial scope of section 94(1) of the Employment Rights Act 1996 and the appropriate comparative exercise to determine whether an employee working abroad has a sufficiently strong connection with Great Britain and British employment law.

Key legal principles:

• The general rule is that the place of employment is decisive and section 94(1) will only exceptionally apply to employees working or based abroad.
• To displace the general rule an employee must show a sufficiently strong connection with Great Britain and British employment law (following Lawson, and as elaborated in Duncombe, Ravat and Bates van Winkelhof).
• The required enquiry is a comparative assessment of connections, focusing on the strength of the claimant's links with Great Britain rather than a comparison of the merits or content of foreign labour laws.

Material grounds of decision: The court held that the Employment Judge had in substance carried out a full and careful assessment of the competing factual connections (Great Britain, New York, Dubai and India) and therefore carried out the required comparative exercise. Slade J at the EAT was wrong to conclude that the Employment Judge had misdirected himself and to remit the jurisdiction issues for rehearing.

This was an appeal by CreditSights Limited against a decision of the Employment Appeal Tribunal which had allowed the claimant's appeal against an Employment Tribunal ruling that the tribunal lacked territorial jurisdiction to hear claims for unfair dismissal (Employment Rights Act 1996, section 94(1)) and breach of the right to be accompanied at a disciplinary hearing (Employment Relations Act 1999, section 10). The claimant, a British national, had been employed by the appellant and relocated to work in Dubai (and was due to move to Singapore) before his summary dismissal. The Employment Judge concluded that he was part of an international business run from New York and had severed his relevant connections with the United Kingdom; the judge decided the tribunal lacked territorial jurisdiction. Slade J in the EAT allowed the claimant's appeal and remitted the first two claims for rehearing because she considered the Employment Judge had not carried out the comparative exercise between the claimant's connections with Great Britain and those with the foreign jurisdiction required by later authorities.

Nature of the claim: (i) Unfair dismissal under section 94(1) Employment Rights Act 1996; (ii) breach of the right to be accompanied under section 10 Employment Relations Act 1999; (iii) accrued holiday pay (not in issue on this appeal).

Issues framed by the court:

• Whether the Employment Judge applied the correct legal test and carried out a sufficient comparative assessment of the claimant's connection to Great Britain and to the foreign jurisdictions.
• Whether a tribunal must compare the merits or content of foreign employment law with British employment law as part of that exercise.
• Whether the EAT was right to remit the jurisdictional issues for rehearing before a differently constituted tribunal.

Court's reasoning: The Court of Appeal analysed Lawson v Serco and subsequent authorities (Duncombe, Ravat, Bates van Winkelhof and Powell) and confirmed that the comparative exercise concerns the strength of factual and legal connections with Great Britain, not a merits comparison of foreign labour law systems. Applying that principle to the facts found by the Employment Judge, the Court concluded that he had in substance evaluated the competing pulls of Great Britain, New York, Dubai and India and reached a reasoned conclusion that the claimant had severed relevant links with the UK. His judgment therefore warranted full respect and his decision that the tribunal lacked territorial jurisdiction should stand. Slade J was wrong to remit the claims for rehearing.

Appeal allowed. The Court of Appeal held that the Employment Judge had carried out the necessary comparative assessment of the claimant's connections with Great Britain and the foreign jurisdictions and gave full and cogent reasons for concluding that the claimant had not shown a sufficiently strong connection with Great Britain and British employment law. The EAT was therefore wrong to remit the jurisdictional issues for re-hearing.

Employment Tribunal (Employment Judge Sigsworth) sent reasons on 20 September 2011 finding no territorial jurisdiction as to unfair dismissal and right-to-be-accompanied claims; Employment Appeal Tribunal (Slade J) order 5 April 2013 allowed claimant's appeal and remitted those claims for re-hearing; Court of Appeal [2014] EWCA Civ 1238 allowed employer's appeal and restored the Employment Tribunal decision.