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Employment tribunal jurisdiction: Jurisdiction where employee based abroad

This report relates to 2 case(s)

Key points

The combined effects of Lawson v Serco Ltd EAT/0018/02TM and Bryant v The Foreign & Commonwealth Office EAT/174/02/RN are:

  • The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 provide the statutory basis for determining the jurisdiction of employment tribunals to hear unfair dismissal claims by foreign-based claimants, following the repeal of s.196 of the Employment Rights Act 1996.
  • Consequently, under reg. 11, a tribunal will have jurisdiction whenever the employer in question resides or carries on business in England and Wales, or where the cause of action arose wholly or partly in England and Wales.
  • Since Mr Lawson's employer carried on business in England and Wales, the tribunal did have jurisdiction to hear his claim even though he worked exclusively on Ascension Island.
  • Bryant (where jurisdiction to hear an unfair dismissal claim was denied) was decided on the basis of a narrow ground raised on appeal and did not consider reg. 11, and does not therefore conflict with the decision in Lawson.
  • Tribunals do not have the power to stay proceedings in favour of a foreign forum in statutory claims (Lawson), but should have such power in respect of common law claims (obiter in Bryant).
  • The ordinary conflict of laws rules must be applied, separately, to determine jurisdiction in common law claims. Thus, an employment tribunal could potentially have jurisdiction to hear a common law claim, but not a statutory unfair dismissal claim, and vice versa. On accepting jurisdiction in a common law claim, the tribunal will then have to consider the law to be applied, following the ordinary choice of law rules.