Strickland v Kier Ltd & Ors (Jurisdictional Points: Working outside the jurisdiction)

Where an employee works wholly abroad, territorial jurisdiction for statutory employment claims requires a comparative assessment of whether the employment has a closer connection with Great Britain and British employment law than with the country of work. The assessment is fact-sensitive and an appellate tribunal will respect a permissible evaluative conclusion by the Employment Tribunal.

The same territorial test applies to whistleblowing protection as to unfair dismissal. Questions concerning the governing law of the contract under the Rome Convention, including Article 7, arise only after territorial jurisdiction has been established.

The Claimant appealed from an Employment Tribunal decision that it lacked territorial jurisdiction over his unfair dismissal and whistleblowing claims under the Employment Rights Act 1996.

He had been recruited in Dubai to work for a Kier group company in Dubai, Saudi Arabia and elsewhere in the Middle East. The Employment Judge found that his employment was more closely connected with the Middle East than with Britain and British law. A reconsideration application was dismissed, subject to an immaterial correction.

On appeal, the Claimant challenged that factual assessment and the Employment Judge’s application of the Rome Convention. He also sought to add a contention that occasional UK meetings meant that he had not worked wholly abroad.

1. Appeal dismissed. The Employment Judge permissibly found that the employment was more closely connected with Dubai and the Middle East, where the Claimant worked, than with Great Britain and British employment law.

2. The proposed amendment was refused. The Employment Judge had merely recorded the Claimant’s assertion in an HMRC letter that he attended occasional meetings in the United Kingdom. He had not found that those were Kier business meetings. The point had not been advanced below and its factual premise was unsupported by the findings and evidence relied on.

3. Where employment is wholly abroad, the relevant exercise is the comparative closer-connection exercise described in Bates van Winkelhof v Clyde & Co, [2013] ICR 883. The Employment Judge was entitled to take account of the overseas recruitment, place of work, tax position, absence of an agreed choice of law, and the fact that the handbook was not contractual. Respect was due to that fact-sensitive conclusion: Ravat v Halliburton, [2012] ICR 389, and Dhunna v Creditsights Ltd, [2015] ICR 105.

4. The EAT followed Fuller v United Healthcare Services and Smania v Standard Chartered Bank. Whistleblowing protection did not require a wider extra-territorial test than unfair dismissal.

5. There was no agreement choosing United Kingdom law, so Article 3 of the Rome Convention was not engaged. The Article 7 issue concerning mandatory rules did not arise because territorial jurisdiction had first to be established. Simpson v Intralinks, [2012] ICR 1343, was distinguishable: its error, corrected on appeal, had been to conflate territorial jurisdiction with the applicable law of the contract.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal and upheld the Employment Tribunal’s conclusion that it lacked territorial jurisdiction.
• Employment Tribunal, Huntingdon: by reserved judgment with reasons promulgated on 17 November 2014, held that the claims fell outside its territorial jurisdiction. A reconsideration application was dismissed on 13 May 2015, save for an immaterial agreed correction.