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Ed Kemp and Grahame Anderson in important Court of Appeal case on territoriality of employment legislation

Ed Kemp and Grahame Anderson appeared in the Court of Appeal for the appellant, Mr Green (the appeal in Green v SIG Trading Limited was heard alongside British Council v Jeffery over two days in May 2018 before Underhill, Longmore and Peter Jackson LJJ ([2018] EWCA Civ 2253) in an important case considering the territorial reach of the whistleblowing protections contained in the Employment Rights Act 1996. Ed and Grahame were instructed in the appeal by Deborah Casale and Colin Davidson of Slater and Gordon.

The general rule is that a person living and working abroad – even if British and working for a British employer – is subject to the employment law of the country she works in. There are some circumstances in which that general rule can be dislodged. This Underhill LJ calls the “sufficient connection question”. That question has given rise to a substantial volume of high authority, none of it entirely satisfactory.

In Green, the Court of Appeal considered the following important issues in this area:

1. The right of appeal in territorial reach cases. The Court unanimously held that this was a question of law although the Court was divided as to the approach of the appellate tribunal in such cases. The majority (Longmore and Peter Jackson LJJ) held that the EAT must not interfere with an ET decision unless the ET’s evaluative judgment as to the sufficiency of strength of connection is wrong;
2. The impact of Article 10 ECHR on the territorial reach of the whistleblowing protections. Underhill LJ held that the employment relationship must be within the jurisdiction of the state in question in order for Convention rights to engaged. This corresponds to the approach required under Lawson / Ravat principles;
3. (An express choice of English law in the contract of employment remains a relevant factor when determining the sufficiency of strength of connection. Underhill LJ rejected the Respondent’s challenge that such a clause is immaterial by virtue of s.204(1) ERA. However, it is open to an ET to treat a specifically negotiated provision as having greater strength than the inclusion of a provision from an off the shelf contract.

The Court dismissed the appeal in Green and upheld the Respondent’s cross appeal.

The case will be of significant interest to employment lawyers, in particular on the vexed question of the territorial scope of employment legislation. CLICK HERE to link to a copy of the judgment.

Ed and Grahame frequently speak to firms on these and other questions. If you would like to organise a talk, please don’t hesitate to contact the clerks on 02077978600.