Prahl v Lapinski – a liberal approach to international jurisdiction in the ET?

In Prahl & ors v Lapinski [2025] EAT 77, the Employment Appeal Tribunal (“EAT”) confirmed that the Employment Tribunal (“ET”) had jurisdiction to hear the Claimant’s discrimination claims against individual Respondents domiciled in Sweden.

In practice, it is not uncommon for a Claimant to bring claims against multiple Respondents when pursuing a whistleblowing claim or claims under the Equality Act 2010 (“EqA 2010”). For example, sections 110-112 EqA 2010 impose liability on individuals who are employees/agents of the employer or to third parties who are found to have instructed, caused, induced or aided a basic contravention of the EqA 2010. What this means is that an individual domiciled abroad may end up becoming a named Respondent in an ET claim, particularly where the Claimant had worked for a multinational employer and/or was a peripatetic worker and/or habitually worked outside of Great Britain.

The Lapinski decision is significant as it provides a comprehensive overview of how the ET should approach questions of international jurisdiction (when dealing with individual Respondents domiciled abroad) in light of the Recast Brussels Regulation (“the Brussels Regulation”) ceasing to have effect on 31 December 2020 (as a result of Brexit).

This article will set out: (i) an overview of the Lapinski decision; and (ii) its implications.

Facts of Lapinski

The Claimant brought claims under the EqA against an LLP of which he was formerly a member and a number of individual Respondents, including three individuals domiciled in Sweden (“the Swedish Respondents”).

In Lapinski, it was not disputed that the ET had territorial jurisdiction over C’s complaints and that there were no jurisdictional obstacles to the claims against any of the Respondents domiciled in the UK.

However, the Swedish Respondents argued that the ET lacked international jurisdiction to hear claims against them. The ET dismissed such argument.

What is the difference between international and territorial jurisdiction?

When dealing with cross-border claims (eg where a Claimant habitually works outside of Great Britain or is bringing a claim against an employer who is domiciled abroad), the ET has to determine two separate issues of jurisdiction:

• Does the ET have the international jurisdiction to hear a claim? Prior to 31 December 2020, issues of jurisdiction were determined by the Brussels Regulation where the employer was domiciled in the UK or in the EU or the Claimant habitually worked in the UK or in the EU or was engaged there. Following 31 December 2020, the Brussels Regulation ceased to have effect, and jurisdictional issues are now determined by Civil Jurisdiction and Judgments Act 1982 (“CJJA 1982”). Section 15C(1)-(3) CJJA 1982 states:

1. “This section applies in relation to proceedings whose subject-matter is a matter relating to an individual contract of employment.
2. The employer may be sued by the employee—

1. where the employer is domiciled in the United Kingdom, in the courts for the part of the United Kingdom in which the employer is domiciled,
2. in the courts for the place in the United Kingdom where or from where the employee habitually carries out the employee's work or last did so (regardless of the domicile of the employer), or
3. if the employee does not or did not habitually carry out the employee's work in any one part of the United Kingdom or any one overseas country, in the courts for the place in the United Kingdom where the business which engaged the employee is or was situated (regardless of the domicile of the employer).

  3.  If the employee is domiciled in the United Kingdom, the employer may only sue the employee in the part of the United Kingdom in which the       employee is domiciled (regardless of the domicile of the employer).”

• Is the Claimant seeking to bring a claim entitled to rely on the statutory provisions in question, based on the territorial scope of the legislation (“territorial jurisdiction”)? Lord Hoffmann observed in Lawson v Serco [2006] ICR 250 that UK legislation is prima facie territorial, as Parliament rarely purports to legislate for the whole world. As such, employment rights are subject to territorial limits. If there is no territorial jurisdiction, the Claimant is unable to enforce their statutory employment rights in the ET. The general rule is that the Claimant’s place of employment is decisive, although there are circumstances where a peripatetic worker (or a worker who habitually worked outside of Great Britain) can enforce their statutory employment rights in the ET, provided that it can be shown that there is a sufficiently strong connection between Great Britain and the employment relationship in question. 

The ET decision

The Claimant’s solicitors instituted an ET claim on his behalf against all the Respondents in August 2022. For the Swedish Respondents, the Claimant’s solicitors gave in the claim form a postal address in their usual business address in Sweden.

The ET posted the notice of claim and claim form for each of the Swedish Respondents to that address. It was not disputed that the Swedish Respondents had in fact received the notice of claim and claim form.

The Swedish Respondents argued that the ET lacked international jurisdiction to hear claims against them for the following reasons:

• They were not present in the UK at the time that the claim was issued or served;
• The claim was not served personally on them in the UK;
• The claim was not sent by post to an address in the UK at which they were present; and
• The Swedish Respondents have not submitted to the jurisdiction of the ET.

The ET dismissed the Swedish Respondents’ jurisdictional challenge. It held that:

• There was no failure to properly serve the Swedish Respondents. In the context of the ET Rules of Procedure 2013 (“ET Rules”) (the then current rules), what “service” meant is that the ET sends the notice of claim, together with the claim form, to the given Respondent at the address given for them in the claim form. The rules as to service in the Civil Procedure Rules (“CPR”) do not apply in the ET. Indeed, the ET Rules did not provide for any special requirements for serving overseas parties.

• In the alternative, the Claimant had a good arguable case that section 15C CJJA 1982 was satisfied. In this case, the Claimant’s contract with the LLP fell to be treated as a contract of employment and the provisions of section 15C applied to the Swedish Respondents as employees or agents of the LLP. Furthermore, England & Wales was the forum with the closest connection with the dispute and the ET observed that it was desirable to ensure that the litigation against all Respondents were heard in the same forum.

The Swedish Respondents appealed to the EAT. In a nutshell, they argued that the ET had made an error of law when concluding that it had international jurisdiction to hear the Claimant’s claims against them.

The EAT decision

The EAT dismissed the appeal, upholding the ET’s decision. In summary, HHJ Auerbach held that:

1. The ET Rules form a “complete code” on service requirements in the ET and do not contain any requirement to obtain permission to deliver or serve an ET claim on a Respondent at an address outside of the UK.
2. Section 15C CJJA 1982 is intended to provide continuity of protection following the provisions of the Brussels Regulation ceasing to have effect. Section 15E CJJA 1982 confirms that the case law under the Brussels Regulation continues to be of relevance when determining jurisdictional issues under section 15C. 
3. Although a LLP member is not an employee of the LLP, case law under the Brussels Regulation confirms that a “contract of employment” is meant to be construed broadly and can therefore cover a Claimant who is a partner of a LLP, since the courts look at the substance of the relationship between the Claimant and the Respondent as opposed to solely focusing on the legal structure within which it sits. In particular, a court or tribunal looks at whether the Claimant was subjected to a necessary degree of subordination when determining whether their relationship can be construed as a contract of employment; see Petter v EMC Europe Limited [2015] EWCA Civ 828 (a case concerning the Brussels Regulation). As such, the Claimant in Lapinski could avail himself of section 15C CJJA 1982.
4. Although the Swedish Respondents were not the Claimant’s employers, the Court of Appeal in Samengo-Turner v J&H Marsh & McLennan Limited [2007] EWCA Civ 723 (another case concerning the Brussels Regulation) states that there should be a “degree of elasticity” in the definition of an employer.
5. The Brussels Regulation recognised that in relation to employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules. Section 15C CJJA 1982 also adopts a similar Claimant-friendly approach to jurisdiction in the context of employment disputes. HHJ Auerbach observed that the Explanatory Memorandum of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (which introduced section 15C CJJA 1982) make clear that the purpose of section 15C is to avoid multiplicity of claims in cases brought against more than one party arising out of the same circumstances, and there is no sign that Parliament had intended for section 15C to be far more restrictive than how courts approached employment disputes under the Brussels Regulation.
6. HHJ Auerbach held that the EAT should be “slow to infer that Parliament had intended positively to remove or curtail the right of a claimant to bring a claim against a respondent for which it had earlier provided that a remedy should be available, in a case where territorial jurisdiction was established, except by the clearest of words”.

Comment

The Lapinski decision is significant as it is one of the first appellate decisions (post-Brussels Regulation) where the EAT comprehensively examines how the ET should approach issues of international jurisdiction when dealing with individual Respondents domiciled abroad. 

What the Lapinski decision illustrates is that the ET should approach issues of international jurisdiction in a far more flexible and liberal approach than the civil courts applying the Civil Procedure Rules. This is unsurprising, given that the ET Rules provides a comprehensive code as to how the ET should approach service and does not contain any special rules when serving the notice of claim and claim form to a Respondent domiciled abroad.

The outcome in Lapinski is also supported by academic commentary. Professor Louise Merrett in her article “International Employment Cases Post-Brexit: Choice of Law, Territorial Scope, Jurisdiction and Enforcement” 50 Industrial Law Journal 343 stated that “because employment rights are often expressly or impliedly mandatory rules [of private international law], they can be applied without consideration of the normal choice of law rules and often the only issue is whether the claimant falls within the territorial scope of the relevant rule” and that in “international employment cases, the nature of the claim will determine which jurisdiction rules apply”. This is consistent with the EAT decision in Lapinski.

This approach must be right. After all, if the ET has international and territorial jurisdiction to hear a claim against the employer, then it should readily accept jurisdiction over any individual Respondent joined to the claim to avoid multiplicity of proceedings across various forums. In addition, as observed by HHJ Auerbach, it would be remarkable if Parliament had legislated for individuals to be protected by certain statutory rights but suddenly be deprived of a remedy due to issues of international jurisdiction (notwithstanding the ET having territorial jurisdiction in the first place).

In practice, what this means is that a lawyer advising an individual Respondent domiciled abroad should only seriously consider a jurisdictional challenge if it can be argued that there is no territorial jurisdiction in the first place. 

Lucas Nacif is an employment and business disputes barrister at 42BR Barristers. Lucas welcomes instructions on issues of private international law / jurisdiction in the Employment Tribunal and the High Court. Please contact Lucas’ clerks at 42BR Barristers ([email protected] or [email protected])  should you wish to instruct him.

23rd Jun 2025

Lucas Nacif

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