Sobara Simon-Hart v Standard Chartered Bank

The Claimant, employed under a DIFC-governed contract, alleged discrimination, victimisation, failure to provide treatment and wrongful dismissal. The Bank applied for summary judgment and/or strike out of specified parts of the claim. The court held that key express contractual provisions did not support the pleaded breaches and that many pleaded policy-based obligations were not contractual.

The court accepted expert evidence that the DIFC Employment Law does not itself imply its statutory provisions into contracts and that the DIFC courts are the proper forum for enforcement of DIFC statutory rights, particularly in respect of discrimination remedies. The court also followed the DIFC authority Al Herz as supporting the proposition that terms which would fetter the employer's statutory right to dismiss are not to be implied.

Accordingly, the court struck out or gave summary judgment in relation to multiple pleaded causes of action including claims based on alleged implied terms importing DIFC statutory rights, wrongful termination arguments that relied on an implied duty of mutual trust and confidence, and pleaded breaches of internal bank policies where those policies were expressly non-contractual.

The claimant worked for the defendant in the Dubai International Financial Centre from October 2014 until termination on 31 October 2018. She alleged sex, race and nationality discrimination, victimisation after complaints, failure to provide treatment for work-related mental health deterioration, failure to make reasonable adjustments, unlawful deduction of wages, and wrongful dismissal. The defendant sought summary judgment and/or strike out of specific paragraphs of the particulars of claim.

Nature of the application: application by the defendant for summary judgment and/or strike out of pleaded causes of action.

Key procedural and factual background:

• The employment contract was governed originally by the Employment Law Amendment Law DIFC No. 3 of 2012 (the Previous Law) and is now governed by DIFC Employment Law No. 2 of 2019.
• The claimant alleged she suffered discrimination and workplace victimisation, developed work-related insomnia, anxiety and depression, was signed off work from July 2018, and was dismissed with one month’s payment in lieu of notice.
• The defendant relied on contractual termination provisions (notably clauses 14.1, 14.4 and 14.5) and on article 36 of the Previous Law allowing termination for excessive sick leave.

Issues framed by the court:

• Whether the express terms of the employment contract supported the claimant’s pleaded breaches, including wrongful dismissal and entitlement to notice or medical treatment.
• Whether terms of the DIFC Employment Law could be implied into the employment contract, or otherwise give rise to contract-based causes of action enforceable in the English High Court.
• Whether certain pleaded heads of loss and other averments disclosed a cause of action.

Expert evidence and foreign law: the parties relied on competing experts on DIFC law. The court accepted that expert evidence was required but should not be used to conduct a mini trial. The experts agreed that the DIFC is a distinct common law jurisdiction and that DIFC statutory employment rights are generally for determination by the DIFC courts.

Court’s reasoning and conclusions:

• Express terms: the court held that clauses 14.1, 14.4 and 14.5 address different discretionary bases for termination and do not establish a contractual right to the claimant; payment in lieu of notice under clause 14.4 and termination permitted under article 36 of the Previous Law could be lawfully relied upon by the bank. Clauses referring to bank policies were expressly non-contractual unless stated otherwise, so policy-based breaches lacked real prospects of success.
• Implied terms: the court found the claimant’s attempt to rely on implied incorporation of DIFC statutory employment protections into the contract to be unsupported. The court followed the DIFC authority Al Herz in holding that the DIFC Employment Law regulates the employment relationship and that courts should not introduce implied terms which would fetter statutory termination rights. The claimant’s foreign law expert did not identify how statutory DIFC rights were properly implied into the particular contract. As a result, claims relying on such implied terms lacked real prospects of success.
• Justiciability and forum: the court accepted that many remedies for contraventions of the DIFC Employment Law, including discrimination provisions, are for the DIFC courts and not justiciable in the English High Court absent properly pleaded contractual rights.
• Other pleaded particulars that did not plead the elements of a cause of action were struck out.

Relief granted: the court granted the defendant’s application in part, striking out specified paragraphs of the particulars of claim and giving summary judgment where appropriate, thereby disposing of the challenged causes of action for lack of real prospects of success and on grounds of forum/justiciability.

The defendant's application for strike out and/or summary judgment was granted in part. The court struck out multiple pleaded paragraphs and gave summary judgment on claims that had no real prospect of success: those based on (a) alleged contractual breaches by reference to non-contractual bank policies, (b) implied terms importing DIFC statutory employment protections (including any implied duty of mutual trust and confidence or good faith that would fetter dismissal), and (c) pleaded heads of loss that did not state a cause of action. The court concluded that the DIFC Employment Law does not itself imply statutory provisions into contracts for enforcement in the High Court and that the DIFC courts are the appropriate forum for statutory DIFC employment claims.