EUPillar Mr J Olsen v Gearbulk Services Ltd, Gearbulk (UK) Ltd [2015] WL 1916235

Summary

The claimant, Mr Olsen, had an employment contract with the first defendant. The claimant was Danish, and his family home was in Switzerland. Mr Olsen was dismissed; he was told for the dismissal by an employee of the second defendant. The claimant commenced proceedings in England, relying on Articles 18 and 19 of Brussels I. Also, he alleged that Rome I was to be applicable. The defendant challenged the jurisdiction of the English court The employment contract included a Bermuda law and jurisdiction clause. The first defendant was domiciled in Bermuda; the second defendant was a UK subsidiary. The defendant spent a significant proportion of his time working in the UK, but he ensured that he did not spend 90 days in England which was important for the taxation purposes. The defendant’s challenge to jurisdiction was upheld by the Employment Tribunal judge. An appeal was dismissed by the Employment Appeal Tribunal. Mr Justice Langstaff held: “15 […] Unless the requirements of Article 18(2) were met, the rules of the jurisdiction applicable to nationals of the Member States in which the employee was domiciled would govern jurisdiction ( Article 2 ). It thus became essential to decide whether the first Respondent had a “branch, agency or establishment” and whether the dispute before the Tribunal arose “out of the operations of” that branch agency or establishment. […] 18 Accordingly, because the dispute did not arise out of the operations of the agency which the Employment Judge found to exist, the Brussels Regulation did not operate so as to confer jurisdiction on the Courts of the UK. […] 60 […] Here, on the facts, the Tribunal thought his centre of activity – his base – was in Switzerland, and not in Great Britain, for the reasons I have set out above. However, Article 8(3) indicates that British law should apply, since the test appears to be a factual one, and the words “place of business” may indicate a wider concept than that of “branch, agency or establishment” for the purposes of the Brussels Regulation . Nonetheless, the Claimant's appeal founders upon the central question of close connection. 61 [...] It follows that each of the three grounds of appeal are dismissed. The judge was entitled to hold as a matter of fact that there was no sufficiently close connection between the Claimant's employment and the UK and UK employment law. It was not perverse to hold that his base was not in the UK, and was in Switzerland. The Rome 1 Regulation did not apply for the same reason. Though, on the assumption that the Second Respondent was an agent of the First Respondent within the meaning given to that word under the Brussels Regulation , the Employment Judge was in error in holding that the dispute could not have arisen out of the operations of the agency, she was nonetheless right to reject the applicability of that Regulation since on her own findings of fact she was bound to hold that the claimant had not proved that the Second Respondent was actually such an agent.” [15, 18 and 60-61].