Territorial Jurisdiction of Employment Tribunal

28 May, 2021

On 25 May 2021, Eady J handed down judgment in Partners Group (UK) Limited and Partners Group (USA) Inc v Mulumba. The appeal was against a judgment of Employment Judge Nicolle finding that the Employment Tribunal (“ET”) had territorial jurisdiction over a claim brought by Ms Mulumba for discrimination, unfair dismissal and whistleblowing.

Ms Mulumba had worked on the Associate Program of the Second Appellant, a company incorporated in the United States. Her offer letter was governed by the law of New York and provided that her employment was “at will” and that any disputes would be resolved by arbitration in the United States or (in the case of sexual discrimination complaints) before the statutory human rights bodies in New York.

As part of the Associate Program, Ms Mulumba rotated through placements in the United States and Switzerland before undertaking a placement in London, at all times remaining an employee of the Second Appellant. At the conclusion of the Associate Program, she was not offered a permanent position but the Second Appellant, in order to assist her with maintaining her immigration status while seeking alternative employment, continued to employ her in an “Accommodation Period”. During this period, EJ Nicolle had found that she could not have had any expectation of permanent employment. When her employment was terminated, Ms Mulumba brought proceedings before the ET under the Employment Rights Act 1996 (“ERA”) and the Equality Act 2010 (“EqA”), raising various complaints arising from her employment in the United States, Switzerland and the UK.

The ET had determined, as a preliminary issue, whether the ERA and the EqA were intended to extend to a person in the Claimant’s position, which was referred to as the question of whether the ET had territorial jurisdiction over all or part of her claim. This question would be resolved by determining whether Ms Mulumba’s employment had a sufficient connection with Great Britain and British employment law. EJ Nicolle had issued a judgment that the ET did have jurisdiction to hear the claim.

In the EAT, Eady J allowed the first ground of appeal concerning the ET’s jurisdiction over matters arising before Ms Mulumba had commenced her London rotation. In its reasoning, the ET had acknowledged that these were not matters which it could determine, although they could be considered by way of background. It was wrong for the ET to state in its judgment that it had jurisdiction over the claim without qualifying that jurisdiction did not exist in respect of these matters.

Eady J also accepted that the ET had erred by failing to take into account that the employment offer letter was subject to New York law, which was a relevant factor in determining the connection between the employment and British employment law. She allowed the appeal on this ground. However, she dismissed the ground of appeal inviting her to substitute her judgment as to whether territorial jurisdiction existed for that of the ET.

Eady J also allowed the appeal insofar as the ET had failed to specify when territorial jurisdiction was established, assuming it existed at all after Ms Mulumba’s employment in London had commenced. Having accepted that Ms Mulumba’s position evolved over time after her arrival in London, it was necessary to identify the point at which her employment had acquired the sufficient connection with Great Britain and British employment law for the statutory employment protections to apply to her. Territorial jurisdiction could not apply retrospectively to matters arising before that point in time.

Accordingly, Eady J ruled that the questions of whether (after commencing employment in London) the Claimant acquired the relevant statutory protections and, if so, when, should be remitted to the ET.

Read the full judgment here.

David Craig QC and Naomi Hart appeared for the Appellants, instructed by Seán Lavin and India Townsend of Macfarlanes LLP.