Could a UK Employment Tribunal Have Jurisdiction For a Cross-Border Claim?

Partners Group (UK) Ltd and another v Mulumba

Ms Mulumba was employed by a US company, "PG Inc", on an Associate programme under a contract which was governed by the law of New York. As part of the programme, she undertook placements in the US, Switzerland and London (for "PG UK Ltd"). Once the programme ended, Ms Mulumba was not offered a permanent position at PG Inc however she was able to continue to be employed whilst she looked for employment elsewhere and whilst maintaining her immigration status in the UK. During this time, Ms Mulumba made complaints against PG Inc and commenced proceedings in New York. Ms Mulumba's employment was then terminated and she subsequently brought claims for unfair dismissal, discrimination and whistleblowing detriment in a UK employment tribunal.

The tribunal found that during the course of Ms Mulumba's time in London she had established a sufficiently strong connection to acquire UK statutory employment rights. In finding that by the time her employment was terminated, her workplace was Great Britain, the tribunal took into account that:

• Ms Mulumba lived and worked in London exclusively for the last 18 months of her employment
• she worked almost exclusively on UK matters during her time in London
• she was exclusively resident in London during her time with PG UK Ltd and
• she did not return to the US either in advance of or subsequent to the termination of her employment

Therefore, despite the fact that Ms Mulumba's claims also related to her employment in other jurisdictions like the US and Switzerland, the tribunal found that it had the relevant jurisdiction to hear the claims.

The Appeal

PG Inc and PG UK Ltd appealed to the EAT.

In allowing the appeal, the EAT found that the tribunal had failed to distinguish between the parts of Ms Mulumba's claim that related to her employment in Great Britain and those that arose when she was employed in the US and Switzerland (and therefore fell outside the reach of British statutory employment protections). The tribunal should also have clarified when Ms Mulumba had established a sufficient nexus to have protections under British employment law - having found that if she had moved to London on merely a three- or six-month rotation this would not have established a sufficient connection. The case was therefore remitted for reconsideration.

What Does This Mean for Employers?

While every case will turn on its own facts, this case is a useful reminder for employers that where employees are sent abroad for overseas placements, there remains a risk that over a period of time they may acquire employment rights in other jurisdictions. Whilst contractual provisions on jurisdiction will be a relevant consideration in these cases, such provisions will not be determinative when considering whether the employee has acquired local statutory employment protection.

If you need further advice on cross-border claims or want to check if your contracts have been drafted clearly to avoid potential claims and issues, please contact Sharmin Chowdhury in our Employment Law team on 01923 919 373, or complete the form below.