Edward Kemp

This Practice Note examines key procedural issues that may arise in the High Court in relation to cross-border litigation in an employment context, including the scope for an injunction to restrain proceedings in other jurisdictions (anti-suit injunction), service of proceedings out of the jurisdiction, and security for costs.

This archived Practice Note considers the question of international jurisdiction in relation to employment disputes instituted before 1 January 2021, ie whose courts and/or tribunals should decide an employment case where either the employee works abroad or there is a foreign employer. It considers the impact of Brexit and IP completion day and provides a summary of the provisions of the Civil Jurisdiction and Judgments Act 1982, which determine jurisdiction for proceedings instituted from 1 January 2021 onwards. It examines the recast Brussels I Regulation (EU) 1215/2012 (Brussels I (recast)), when the employment-specific provisions in Section 5 (Articles 21–23) of Brussels I (recast) apply, how to establish jurisdiction, the domicile test, the habitual place of work test and the place of business test, claims by an employer, where forum is agreed under a jurisdiction clause or jurisdiction agreement and where such agreements will be effective in an employment context. The Jenard test for deciding whether a dispute has arisen for the purposes of the rules on whether a jurisdiction agreement is effective is examined, the effect of the ET Rules, whether there is scope for a stay, parallel proceedings, where Brussels I (recast) does not require or confer jurisdiction. The Practice Note also provides an overview of the Lugano Convention.

This Practice Note has been archived and is not maintained. This Practice Note examines the Posted Workers Directive, 96/71/EC (PWD) in the context of cross-border, international and jurisdictional issues. It considers the impact of Brexit, and outlines the issues to consider as a result when posting workers after 1 January 2021. For historical reference, it explains the effect of the PWD, who is a posted worker for the purposes of the PWD, when the PWD applies and how it is enforced, in particular under the Posted Worker Enforcement Directive, 2014/67/EU (PWED). The Practice Note provides a list of the terms and conditions that must be guaranteed under the PWD. It also considers the Posted Workers (Enforcement of Employment Rights) Regulations 2016.

This Checklist provides an overview of the questions to be asked when determining which system of law is applicable to a contract of employment or employment relationship (applicable law), whose courts and/or tribunals should decide an employment case (jurisdiction) and how the courts and employment tribunals decide what statutory rights, if any, are held by an employee who works abroad and/or has a foreign employer (territorial application or scope of statutory employment rights). It provides links to relevant Practice Notes and Flowcharts.