Summary
This was an appeal against the decision of an Employment Judge at a Preliminary Hearing.
The claims were for sexual discrimination and equal pay.
The claimant, Ms Simpson, lived and worked in Germany. She was employed by the defendant that was an English company.
The employer challenged the jurisdiction of the English court.
The employment contract included a German law and jurisdiction clause. On this basis, the employment judge upheld the jurisdictional challenge, holding that the English courts had no jurisdiction.
The first instance judge’s decision was reversed by the UK’s Employment Appeal Tribunal. It was held that the claimant was entitled to bring the claim in England. Mr Justice Langstaff held:
“32 [...] Recital 13 shows that policy is to protect the employee (as the weaker party to a contract of employment) by providing for rules of jurisdiction which were more favourable to him than the general. Given this, I conclude that an employee has the choice provided for by art.19 , and there is nothing within the Regulation to restrict that choice to a preference determined by the court itself. Further, to give the court that discretion would be to deprive the Regulation of the certainty and predictability in operation to provide which is part of its function. Section 7 , headed “Prorogation of Jurisdiction”, is general to all the provisions of the Brussels Regulations. Article 21 is particular to individual contracts of employment, coming within s.5 as it does. Article 21 does not, however, provide for that which gives an agreement on jurisdiction its formal validity. It does seem to me that there is conflict between arts 21 and 23 : Article 21 applies to contracts of employment, but the “Agreement on Jurisdiction” to which it refers must be in a form which is recognised as conferring formal validity within art.23 . I see no reason to deprive art.21 of its clear words: the provisions of s.5 may be departed from “ only ” by an agreement on jurisdiction which is entered into after the dispute has arisen. Further and separately I note, too, that art.21, para.2 is permissive—permitting an employee to bring proceedings in courts other than those which would otherwise be indicated by s.5 . This underlines my conclusion as to the way the courts should approach exercise of the choice provided for by art.19 .
[...]
34 Accordingly, I accept that the claimant’s submissions that art.19 permits the respondent employer to be sued in the United Kingdom. [32 and 34].
As for the applicable law, Mr Justice Langstaff held that
“54 The effect of the Rome Convention , which is applicable because proof of contract is a necessary step in the claim, is that German law is the applicable law. However, art.7(2) provides that nothing in the Convention is to restrict the application of mandatory rules of the law of the forum. The effect of art.7(2) is thus that the provisions of s.6 of the Sex Discrimination Act and s.1 of the Equal Pay Act (which are such mandatory rules) are applicable notwithstanding that the applicable law generally is German.” [54].