UK prevails over Germany

June 27th, 2012 by James Goudie KC

Denise Simpson lived in Frankfurt.  She worked from there.  She had a written contract of employment (which began before the Rome 11 Regulation came into effect).  The contract gave her address, correctly, as Frankfurt.  It stated that her place of work was Frankfurt, as indeed it was.  It stated that she could be transferred to other offices or places in Germany.  It stated that of the two language versions of the contract the German would prevail.  It stated that any disputes were to be governed and construed exclusively in accordance with German law.  It provided that the place of jurisdiction was Frankfurt. 

There were some connections with the UK.  She could be required under the contract to travel outside Germany.  She occasionally did come to the UK.  The employer’s registered office was in London.  The contract of employment was written in English as well as German.

Notwithstanding the tenuous nature of the UK connections, and the cumulative weight of the German factors, the President of the EAT, Langstaff J, held, in Simpson v Intralinks, UKEAT/0593/11/RN, that an Employment Tribunal in the UK had jurisdiction over claims under the Equal Pay Act 1970 and the Sex Discrimination Act 1975.  How did this come about?  It was the effect of the employer being registered in the UK and the Brussels 1 Regulation.  German law, however, remained applicable, under the Rome Convention.  It would be for the ET to determine the German law, as a matter of fact.  Nonetheless the UK statutes would be applicable. German law would not apply on any issue upon which the provisions of the UK statutes are mandatory.

Langstaff J said, at para 58:

 “Though it may seem at first blush counter-intuitive that where parties agree both that the law which will govern their employment relationship is foreign, and that the courts in which any employment dispute are to be heard are also foreign, nonetheless the employee is permitted to choose to litigate the issues in the United Kingdom.  Once, however, the policy of the international conventions is understood to be that employees need protection, as being generally in a weaker position than employers when negotiating their contracts of employment, such that the law should redress the imbalance by providing the employee with a choice of which otherwise the unequal terms of a contract would deprive him, then the consequence (in general) is not counter-intuitive, but may be seen as (in general) tending to justice.”