If not now then when? Tribunal should have identified when jurisdiction established

An employment tribunal only has jurisdiction to hear claims under the Employment Rights Act 1996 and Equality Act 2010 if the claimant has a sufficient connection with Great Britain and British employment law. Many of the key cases in the area relate to claims brought by British citizens working abroad for employers established in Great Britain. In Partners Group (UK) Ltd v Mulumba the EAT considered the question in the context of a non-British citizen who worked in the UK and elsewhere for a US employer under a US employment contract.

Ms Mulumba was a citizen of the Democratic Republic of Congo. Partners Group (USA) Inc offered her a place on its Associate Program, which would last between 12 and 24 months from September 2015 and involve placements in different locations. She was paid in the US in dollars, entitled to US employment benefits and her employment contract was governed by New York law. She initially worked in the US but when her US visa expired she was transferred to Switzerland in July 2016 and then, at her request, to London in March 2017.

She remained employed by the US company on her original US terms, although worked at Partners Group (UK) Ltd. After her Associate Program placement ended in August 2017 Partners Group continued to employ her to assist her with her UK immigration status but did not offer her a permanent role. When her employment terminated in August 2018, she brought claims for unfair dismissal, whistleblowing detriment and discrimination, harassment and victimisation in the employment tribunal. The claims related to periods before she arrived in the UK, while she remained in the UK on the Associate Program and to the final year of her employment.

The tribunal decided that it had jurisdiction to consider claims which post-dated the posting to London because the nature of her employment relationship evolved over time and at some point during her time in the UK statutory employment protection applied. It refused to clarify at what point that occurred, on the basis that it would be artificial to do so. Partners Group appealed.

The EAT found that it was incumbent on the tribunal to identify the point at which Ms Mulumba had a sufficient connection with Great Britain and British employment law to acquire statutory protection. If it failed to do that, it was impossible to determine which claims it had jurisdiction to hear. In addition, the tribunal had not properly taken account of the fact that her contract was governed by New York law. This was a potentially relevant factor when deciding whether there was a sufficiently strong connection with British employment law and the failure to have proper regard to it was an error of law. The claim was remitted to the tribunal to consider whether Ms Mulumba could establish a sufficient connection with Great Britain and, if so, when.

Part of the union - protection against detriment extends to industrial action

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) entitles workers not to be subjected to a detriment on grounds related to union membership or taking part in union activities at an appropriate time. To date, union activities have been interpreted as excluding industrial action, not least because dismissals for taking part in industrial action are dealt with in a separate part of TULRCA. The EAT decision in Mercer v Alternative Future Group Ltd finds that this interpretation is incompatible with the European Convention on Human Rights (ECHR) and that s146 has to be read in a way that protects workers against detriment related to participation in industrial action.

Mrs Mercer was a Unison workplace representative. Her employer suspended her and gave her a first written warning, which was later rescinded, for participating in industrial action that she had also been involved in planning and organising. She claimed that the suspension was a detriment that was designed to prevent her from participating in the activities of an independent trade union at an appropriate time, or to penalise her for doing so. The employment tribunal found that although subjecting a worker to a detriment for participating in industrial action was a breach of the right to freedom of association and assembly under Article 11 of the ECHR, s146 could not be interpreted in a way that was compatible with Article 11. Her claim therefore failed.

On appeal, the EAT upheld the finding that Article 11 of the ECHR entitles workers not to be subjected to a detriment for taking part in industrial action. Any restriction, however minimal, on a worker’s right to participate in union-sanctioned protest or strike action is an interference with their Article 11 rights. As a matter of domestic law, s146 does not extend that far. However, excluding participation in industrial action from the protection offered by s146 is not justified. TULRCA must be read as protecting workers against being subjected to a detriment for taking part in industrial action within working hours. It was clear that failing to pay an employee their normal wages for periods they were engaged in industrial action would not constitute a detriment under domestic law or the ECHR, so failing to pay an employee their normal wages while taking part in industrial action would not give rise to a claim under the expanded provision.

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