Cross-border employment disputes: where can an employee working abroad bring a claim?

A recent case highlights the difficulties employers can face when dealing with disputes with employees carrying out work outside of the United Kingdom.

In Cable News International Inc v Bhatti, the Employment Appeal Tribunal (EAT) upheld an employment tribunal’s decision that it had jurisdiction to hear the claims of a journalist whose work assignments had been mainly in Asia, but who latterly worked from London while recovering from an injury.

Jurisdiction in cross-border employment disputes

Following the rise in hybrid and remote working, including the rise in employees working abroad, it is possible that claims with a cross-border element may become more common. 

Broadly speaking, states have jurisdiction over acts within their own territory and over their own nationals and will only exercise jurisdiction outside their own territory in limited circumstances. However, rules are needed to determine when domestic courts have jurisdiction to deal with cases with an international element, such as when a party is based overseas, or events took place overseas.

Cable News International Inc v Bhatti

Ms Saima Bhatti, a British journalist of Pakistani descent, was employed by Cable News International Inc (CNI) from 2013 to 2017. CNI is a broadcast media organisation based in the US state of Georgia and Ms Bhatti’s contract of employment was governed by the law of Georgia. Her role involved international assignments, primarily in Asia, with connections to CNI’s London bureau.

In 2014, after sustaining a foot injury, Ms Bhatti returned to London for medical treatment and sought to continue her work from there. However, CNI’s management declined her request to work from London, and in August 2017, she was informed that her contract would not be renewed, leading to her dismissal.

Ms. Bhatti issued claims in the UK Employment Tribunal for:

• Discrimination
• Victimisation
• Unfair dismissal
• Equal pay
• Outstanding holiday pay

Key issue: The territorial scope of UK employment law

The Employment Tribunal determined that it had jurisdiction over Ms. Bhatti’s claims, based on her sufficient connection to the UK. The Tribunal found that, despite her international assignments, Ms. Bhatti had established a significant connection with the UK, particularly after her return for medical treatment and her efforts to work from London.

CNI appealed, contending that the Employment Tribunal was wrong to hold that the claims fell within the territorial scope of the legislation, and to hold that it had international jurisdiction to determine them.

Appeal and EAT Judgment

The EAT dismissed CNI’s appeal, referencing several important points:

1. Sufficient UK Connection: It upheld the Tribunal’s finding that Ms. Bhatti had a sufficient connection to the UK, noting that her work arrangements and the circumstances surrounding her dismissal were closely linked to the UK.
2. Not on Medical Leave: The EAT rejected CNI’s submission that Ms Bhatti’s base could not become London because she came to the UK for medical treatment and not to work. It observed that she was never on medical leave in the conventional sense. Her contract did not include sick leave terms, medical certification of unfitness to work, and sick pay. Her pay remained the same in sickness and in health. Aside from medical treatment, Ms Bhatti did go to London to work. Furthermore, the Employment Tribunal was entitled to factor in the existence of some connection with London before March 2017.
3. Choice of Law Clause: The Tribunal did not overlook the choice of law clause in the contract of employment and, the EAT held, had correctly observed that the relevance of the choice of Georgia law was diminished by the fact that neither party was suggesting that the employment was more closely connected to Atlanta than to Bangkok or London. This confirmed that contractual choice of law does not override jurisdiction where a sufficient UK connection exists.
4. Work Location Shift Considered Valid: The EAT emphasised that UK employment law could apply to employees working abroad if there is a strong connection to the UK.

Comment and legal takeaways for employers

This Judgment reinforces the principle that the territorial scope of UK employment legislation extends to cases where there is a significant connection to the UK, even if the employer is based overseas. An employer cannot circumvent UK employment laws simply because an employee’s role involves international assignments.

Jurisdiction in cross-border disputes is complex and difficult for employers to grapple with. Employers should take legal advice when engaging the services of an employee who is either based abroad, or conducts some element of work abroad, to ensure that risk can be assessed and to put the right contractual documentation in place.