Tribunal should determine when employee fell within territorial scope of GB law ((1) Partners Group (UK) Ltd, (2) Partners Group (USA) Inc v Mulumba)

In cases with foreign elements where there is a question as to whether a claim falls within the territorial scope of British employment law, it is an error of law for the tribunal not to identify whether, and, if so at what point in time, the claimant had sufficient connection with Great Britain and British employment law so as to fall within the scope of the relevant statutory protections that underpin the claims they have brought, according to the EAT.

(1) Partners Group (UK) Ltd, (2) Partners Group (USA) Inc v Mulumba (UKEAT/0237/20/RN)

What are the practical implications of this judgment?

Unlike the usual case in which territorial scope is at issue of a British worker employed abroad, this case related to a foreign employee working in Great Britain. It should be noted that this judgment indicates that in such a case concerning the issue of whether a claim s/he has falls within the territorial scope of British employment law:

• the question is whether the connection between the circumstances of the employment and (a) Great Britain and (b) British employment law is sufficiently strong, such that it would be appropriate for the employee to bring that claim in Great Britain
• the circumstances need not be truly exceptional before a connection with the system of law in Great Britain can be identified
• location within Great Britain is not, however, determinative
• whether or not there is sufficient connection to a foreign country, and to the laws of that jurisdiction, to overcome the territorial pull of the place of work requires an evaluative judgement to be made on the basis of the underlying facts
• in cases where the employee moves between different countries, the tribunal’s evaluation may need to recognise a change in the relevant circumstances. The assessment must, however, be of the position at the time of the matter of which complaint is made (e.g., discriminatory act)
• if the relevant act, omission or decision fell within a period of employment outside the territorial reach of British employment law, it will not subsequently fall within scope as a result of the employee later establishing the requisite connection with Great Britain and the statutory protections afforded within this jurisdiction
• the fact that the complaint might relate to what is alleged to have been ‘conduct extending over a period’ (for the purposes of section 123(3) of the EqA 2010) does not change this position
• if there has been a change in the relevant circumstances, a failure to specify the date when the employee fell within the scope of British employment law is an error of law for appeal purposes.

Case details

• Court: Employment Appeal Tribunal
• Judge: Eady J
• Date of judgment: 25 May 2021

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