Nica v Xian Jiaotong Liverpool University

Territorial jurisdiction under the Equality Act 2010 is distinct from jurisdiction under the European jurisdiction Regulation. Where employment has been carried out wholly outside Great Britain, the tribunal must apply the comparative strength of connection test. A claim under the Act is available only where the claimant’s strongest territorial connection is with Great Britain.

The Regulation determines which court should hear a claim. It does not create substantive rights or extend the territorial scope of domestic employment legislation. Accordingly, it cannot confer jurisdiction where the claimant has no enforceable right under the Equality Act 2010.

The Claimant, a Romanian national, was employed by a Chinese joint-venture university from 2009 to 2014. He worked in China, was paid in Chinese currency, and was employed under a contract governed by Chinese law. His complaints included discrimination, unfair dismissal and detriment for protected disclosures.

The East London Employment Tribunal held that it lacked territorial jurisdiction. The Claimant appealed on the grounds that jurisdiction arose under European Parliament and Council Regulation 1215/2012 and from the extra-territorial scope of the Equality Act 2010. The central issue was whether the Regulation could confer jurisdiction despite the absence of a substantive right under British employment law.

1. Appeal dismissed. The Employment Tribunal had correctly concluded that the Claimant’s claims fell outside the territorial scope of the Equality Act 2010.
2. The Act is silent on territorial scope. The approach applicable under the Employment Rights Act 1996 also applies under the Act. For employment carried out wholly outside the United Kingdom, the tribunal must assess the comparative strength of the connection with Great Britain and the employment relationship. A cause of action exists only where the strongest connection is with Great Britain. That approach was binding on the Employment Appeal Tribunal under Bates van Winkelhof v Clyde & Co LLP [2012] IRLR 992 and R (on the application of Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] ICR 975.
3. The Regulation concerns the allocation of jurisdiction between courts. It does not determine the substantive law applicable to a claim and cannot confer a substantive right which domestic law does not provide. The reasoning in Bleuse v MBT Transport Ltd and Anor [2008] ICR 488 was applied.
4. On the unchallenged findings, the employment, employer, place of work, governing law, payment arrangements and alleged discriminatory acts were all connected principally with China. The Tribunal was therefore entitled to find that the Claimant had no strong connection with Great Britain or UK employment law.
5. It was unnecessary to decide the detailed Regulation arguments. The Judge nevertheless observed that the Regulation would not assist against the First Respondent, which was not domiciled in a Member State and had no established branch, agency or establishment in a Member State on the Tribunal’s findings. The position concerning claims against individual respondents was also legally unclear if those claims were not related to the employment contract.

• East London Employment Tribunal: held that it lacked territorial jurisdiction over the Claimant’s complaints.
• Employment Appeal Tribunal: dismissed the appeal and upheld the Tribunal’s conclusion.