Mr. Michel Lee v Ubs Ag — 2020

Mr. Michel Lee brought unfair dismissal and sex discrimination claims against UBS AG. The tribunal heard evidence about his long service, his London recruitment in 1993, later assignments to Japan and Hong Kong, his continued English-law contract, UK pension membership, and his dismissal on 24 July 2018. The preliminary issue was whether an English employment tribunal had territorial jurisdiction to hear the claims.

Applying the territorial scope authorities, the tribunal found a very strong territorial pull for Hong Kong. At dismissal the claimant had lived and worked outside Great Britain for 23 years, was paid in Hong Kong, paid tax there, and was fully integrated into the APAC region. Although his contract, pension, and disciplinary arrangements retained links with London, those factors were not strong enough to displace the general rule that the place of work was decisive for a truly expatriate worker.

The tribunal rejected the contention that the claimant was working for the London business of equity derivatives rather than for APAC. It found that his work, appraisals, reporting lines, and management responsibilities showed that he was part of the APAC regional business, contributing to that region's profitability, rather than being part of the London branch business. The tribunal also said that the respondent's revenue-transfer arrangements did not show that London was the real locus of the claimant's employment.

On the EU law argument, the tribunal considered the authorities on the territorial scope of Directives and held that there was no sufficiently close link with EU law to extend jurisdiction to employment in Hong Kong. It declined to refer the point to the Court of Justice because it was not acte clair. The result was that both the unfair dismissal and sex discrimination claims were dismissed for want of territorial jurisdiction.