Littleton Chambers

This Practice Note examines how to determine which system of law is applicable to a contract of employment or employment relationship. It provides an overview of the Rome Convention and Rome I, which are now assimilated EU law. It then examines the key employment-specific provisions in Rome I, now Assimilated Rome I, how to determine which mandatory law applies, the ‘habitual place of work’ test, the ‘closer connection’ test, non-derogable provisions, overriding mandatory provisions, public policy issues and who should apply the applicable law. It also provides an overview of Rome II, now Assimilated Rome II, and its application in the employment context.

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 Practice Note considers the question of international jurisdiction in relation to employment disputes, 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 considers the provisions of the Civil Jurisdiction and Judgments Act 1982 (CJJA 1982), which determine the question of international jurisdiction in relation to employment proceedings instituted on or after 1 January 2021. The Practice Note examines the scheme and application of CJJA 1982 in relation to employment cases, the gateways for claims brought by employee: employer domiciled in the UK, employee habitually carrying out work in the UK, and the place in the UK where the business engaged the employee. Co-defendants and claims by employers are considered. The issue of submission to the jurisdiction, jurisdiction agreements, stay of proceedings and anti-suit injunctions are also explained.

This Practice Note explores the role of judicial mediation as a form of alternative dispute resolution (ADR) for employment tribunal claims and incorporates the relevant aspects of the Presidential Guidance on ADR dealing with judicial mediation. It looks the mechanics of the process of judicial mediation as well as offering practical guidance on issues of strategy and on how best to maximise chances of reaching a settlement. It covers the stage at which judicial mediation is considered, the impact of judicial mediation on the employment tribunal proceedings, logistical preparation for a judicial mediation (eg documents and agreeing levels of authority), what happens on the day of the judicial mediation, the role of the Employment Judge as mediator, special considerations for judicial mediations conducted remotely, how to record the outcome of a successful mediation, next steps following an unsuccessful mediation, the types of claims most suitable for judicial mediation, the advantages and disadvantages of judicial mediation, tips on strategic preparation for a successful judicial mediation, how to build an attractive settlement package and the role of lawyers in judicial mediations.

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 Practice Note considers the legal issues that may arise in a team move, where two or more partners of the same partnership or members of the same limited liability partnership (LLP) leave that entity and either set up in business on their own account, or join one of the partnership or LLP’s competitors. The Practice Note examines the unlawful conduct that may arise and the nature of the legal duties owed by partners and members, which may arise under the Partnership Act 1890 (PA 1890), the Limited Liability Partnerships Act 2000 (LLPA 2000) and the default provisions of the Limited Liability Partnerships Regulations 2001, SI 2001/1090 (LLPR 2001). The importance of express terms in partnership deeds and LLP agreement is explained. Practical issues are outlined and issues relating to garden leave and post-termination restrictions, which may apply in relation to competition, solicitation or poaching of clients and/or other employees, are explained. Finally, remedies are examined, including springboard relief.

This Practice Note examines the territorial extent and application (or scope) of the Equality Act 2010 (EqA 2010). It considers the provisions of EqA 2010 in relation to territorial extent, territorial scope, ships, hovercraft, seafarers and to offshore work. It also examines the relevant principles in relation to scope, including Lawson v Serco and Bleuse, and other relevant case law.

This Practice Note examines the territorial application, scope or reach of relevant applicable or mandatory law, ie how the courts and employment tribunals decide what statutory rights (if any) an employee who works abroad and/or has a foreign employer has. It considers the principles in Lawson v Serco and Bleuse, including the sufficiency or strength of the connection test (between the circumstances of the employment and Great Britain and British employment law), the background to those principles and how they are applied. It also considers the Posted Workers Directive.