Partners Group (UK) Ltd v Mulumba (Jurisdiction): EAT 25 May 2021

JURISDICTION – TERRITORIAL SCOPE OF THE EMPLOYMENT RIGHTS ACT 1996 AND THE EQUALITY ACT 2020

The Claimant was a national of the Democratic Republic of Congo who was accepted on to the Second Respondent’s Associate Program in the USA. The Second Respondent is a US company and the Claimant’s offer stated that her contract was governed by the law of New York and her employment was ‘at will’. As part of the rotational placements under the Program, and once her US work visa expired, the Claimant moved to work for other companies in the group, first in Switzerland and then for the First Respondent in London. She remained, however, an employee of the Second Respondent. When her time on the Associate Program finished, the Claimant was not offered a permanent position but her employment was continued as the Respondents wanted to assist her in maintaining her immigration status in the UK whilst she looked for other work (otherwise she would have had to return to the DRC). During this time, the Claimant made various complaints against the Second Respondent and started proceedings in New York. Subsequently, the Claimant’s employment was terminated and she brought proceedings in the ET, under the Employment Rights Act 1996 and the Equality Act 2010, raising various complaints relating to her employment in the US, Switzerland and in Great Britain. Determining whether the Claimant fell within the scope of British statutory employment protection, the ET held that it had jurisdiction to hear the claim. The Respondents appealed.

Held: allowing the appeal in part
In its reasoning, the ET had acknowledged that the Claimant’s claims pre-dating her move to London were not matters that the ET could determine, albeit they would fall to be considered as part of the background. It was, therefore, wrong for the ET’s Judgment to state that ‘it does have jurisdiction to hear the claim’ and the Respondents’ appeal would be allowed in this respect.
Similarly, having stated that it would not have found that the Claimant fell within the scope of British employment law if simply employed in this jurisdiction on a temporary placement under the Associate Program, it was incumbent upon the ET to state when it found that her employment had fallen within the reach of the relevant statutory protections. The appeal was also allowed on this basis.
Although the ET had generally carried out a careful evaluation of the different factors relevant to the question of territorial reach in this case, it had apparently failed to have any regard to the fact that it had been provided that the contract of employment was subject to New York law. That was a potentially relevant factor (Duncombe v Secretary of State for Children, Schools and Families (No.2) [2011] ICR 1312 and Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389 applied), in particular in determining whether the Claimant had sufficient connection to British employment law (see, obiter, Powell v OMV Exploration and Production Ltd [2014] ICR 63). The failure to take account of this factor had rendered the ET’s conclusion unsafe and the Respondents’ appeal on this ground would also be allowed.
Whilst the ET had accepted the Respondents’ case as to the reason why the Claimant’s employment had been continued after she had ceased to be on the Associate Program, it was not bound to find that the lack of permanence to her position in London was fatal to her ability to claim that she fell within the scope of British employment protections. The ET had been entitled to give weight to the length of time the Claimant had been kept on, her integration within the London office and to her inability to move elsewhere (due to her immigration status). The appeal on this wider basis was dismissed.
[2021] UKEAT 0237 – 20 – 2505
Bailii
England and Wales

Updated: 20 June 2021; Ref: scu.663125