Hexagon Sociedad Anonima v Hepburn

Where an employment claim arises abroad, United Kingdom employment tribunals may have jurisdiction only if the claim has a sufficiently strong connection with Great Britain and British employment law. The assessment is objective, fact-sensitive and concerned with the strength, rather than the number, of relevant connections.

A contractual choice of Scots law and Scottish courts and tribunals can create a relevant expectation that the employee will receive British employment protection. It cannot alone found jurisdiction where no other connection exists, since that would permit forum shopping. However, it may materially support jurisdiction when it reflects independently established personal and employment connections with Scotland.

A term requiring the employer to comply with host-country employment laws does not, without clear wording, select the host-country forum or remove rights otherwise available under Scots law.

The claimant, a United Kingdom citizen whose contractual home location was Scotland, worked on an installation permanently moored in the territorial waters of Equatorial Guinea. After dismissal, he brought a protected-disclosure automatic-unfair-dismissal claim in the Aberdeen Employment Tribunal under Employment Rights Act 1996.

The employer, an Equatorial Guinean company within a multinational group, challenged the tribunal’s jurisdiction. The Employment Judge rejected that challenge, treating the contractual choice of Scots law and exclusive Scottish courts and tribunals clause, together with other connections, as establishing a sufficiently strong connection with Great Britain.

The employer appealed. It contended that the territorial connections with Equatorial Guinea prevailed and that a separate contractual term concerning compliance with host-country employment laws selected Equatorial Guinean law and jurisdiction.

1. Appeal dismissed. The Employment Judge was entitled to conclude that the claim had a sufficiently strong connection with Great Britain for the tribunal to hear it. Although the claim arose in Equatorial Guinea and there was a strong territorial pull towards that jurisdiction, the appellate court could interfere only with an erroneous legal interpretation of the facts. The Judge had correctly directed himself and his evaluative conclusion in a finely balanced case deserved considerable respect.

2. The governing inquiry was whether Parliament would have regarded it as appropriate for a United Kingdom employment tribunal to determine an overseas claim because of its sufficiently strong connection with Great Britain and British employment law. The tribunal must assess the strength of connections, not merely count them. Connections which are consequences of the same employment arrangement may not have independent weight, and links with third countries may be irrelevant to the choice between the United Kingdom and the place where the claim arose.

3. Following Duncombe, the choice of Scots law and exclusive jurisdiction of Scottish courts and tribunals was a relevant connection. It created an expectation that the employer would honour the contractual protection. It was not determinative and could not create jurisdiction for parties otherwise unconnected with the United Kingdom. Here it reflected and reinforced other connections: the claimant’s United Kingdom passport, residence in Scotland, United Kingdom tax position, Scottish home location, and supervision from Aberdeen within a group whose parent was headquartered there.

4. The host-country compliance clause did not assign the forum to Equatorial Guinea or exclude Scottish employment rights. Properly construed, it required the employer to comply with statutory obligations imposed by Equatorial Guinean law. It was capable of operating alongside the Scots-law and jurisdiction clause, and there was no evidence that it undermined that clause.

5. The case was remitted to the Employment Tribunal to proceed accordingly.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Judge’s rejection of the jurisdiction challenge was upheld, and the case was remitted to the Employment Tribunal.
• Employment Tribunal, Aberdeen: The employer’s challenge to jurisdiction over the claimant’s Employment Rights Act 1996 claim was rejected.