Mr D Nazarenko v TotalEnergies Gestion Internationale SA and Others: 3303097/2024
EMPLOYMENT TRIBUNALS
Case No 3303097/2024
Between
Mr D NazarenkoClaimantTotalEnergies Gestion Internationale SA and OthersRespondent
Before
Employment Judge Shastri-HurstMs I Ferber KC (instructed by counsel) for claimantMs C Darwin KC (instructed by counsel) for respondentDate 1 April 2026
JUDGMENT
The claims against the second and third respondents are struck out as having no reasonable prospect of success. Approved by JUDGMENT having been handed down to the parties on 24 October 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]The claimant presented his claim to the Tribunal against all seven respondents on 16 March 2024. He went through the ACAS early conciliation process regarding each respondent, however I have only seen the following ACAS EC certificates: 1.1. Against the first, third and fourth respondent: 23 October to 4 December 2023; 1.2. Against the second and fifth respondent: 12 February to 16 February 2024.[2]The claims are as follows: 2.1. Ordinary unfair dismissal; 2.2. Automatic unfair dismissal (whistleblowing); 2.3. Direct sex discrimination; 2.4. Victimisation; 2.5. Protected disclosure detriments; and, 2.6. Failure to pay accrued but untaken holiday pay.[3]The hearing today was the first hearing in this matter, and was listed in order to deal with two preliminary matters: 3.1. Whether the Employment Tribunal has jurisdiction to consider the complaints made by the claimant against the fourth, fifth, sixth and seventh respondent having regard to the provisions contained in the sections 15C and 15D of the Civil Jurisdiction and Judgments Act 1982 (“the International Jurisdiction issue”); and, 3.2. Whether the claims against the second and third respondent should be struck out as having no reasonable prospect of success under r38 of the Employment Tribunal Procedure Rules 2024.[4]The subject matter to which these Written Reasons pertain is the second of these issues, following my decision to strike out the claims against the second and third respondents at this hearing.[5]I was provided with a bundle, including four witness statements from the respondents, skeleton arguments from both the claimant and the various respondents, and a joint authorities bundle.
Findings of fact
[6]The claim was presented against the second and third respondents along with five other respondents by way of a claim form dated 16 March 2024. This claim form presented claims that correspond to matters that occurred between May 2022 and December 2023.[7]The Grounds of Complaint commence with the following opening lines, at paragraph 2 – [55]: “The claimant was employed by the first respondent (and later possibly by the second, third, fourth and/or seventh respondents) from 12 February 2012 until 31 December 2023”.[8]The basis on which the claim is put against the second and third respondents is set out at paragraph 11 of the Grounds of Complaint – [57] “At all times material to this claim, the claimant understands he was employed by the first respondent. If it is subsequently established that a different entity (either the second, third, fourth or seventh respondent, or any Group company) was his employer at the time material to this claim, the claimant will seek the permission of the Employment Tribunal to amend these Grounds, so that the correct entity is referred to”.[9]The claims (regarding liability) are clearly set out within the Grounds of Complaint under the sub-heading of “the Claimant’s Claims”, from paragraph 69 to paragraph 88 – [72-78]. The claim of unfair dismissal is put squarely against the first respondent. There is no mention of the second and third respondents within the details of the claims at paragraphs 69 to 88 in the Grounds of Complaint. As such, technically, there is no claim made against the second and third respondent, and no application before me to amend the claim to present a specific claim against those two parties.[10]Ms Darwin pointed out that the lack of specific pleading in the alternative against the second and third respondent is in stark contrast to the position taken by the claimant in relation to the fourth and seventh respondents. At paragraph 72 of the Grounds of Complaint, the claimant has listed the acts of which he complains in terms of his sex discrimination claim. At paragraph 73, the claimant has pleaded as follows: “In respect of each allegation which is listed in paragraph 72 against the first respondent, the claimant also alleges the same act against the fourth and seventh respondents, each of them as agent for the first respondent (pursuant to s110 of the Equality Act 2010); and/or each of them instructing, causing or inducing the first respondent to act (pursuant to s111 of the Equality Act 2010); and.or each of them helping the first respondent to act (pursuant to s112 of the Equality Act 2010)”.[11]Turning to the first respondent’s position: it has set out plainly in its Grounds of Resistance at paragraph 1 – [94]: “The claimant worked for the first respondent between 12 February 2012 and 31 December 2023”.[12]The period stipulated covers the period that is material to the complaints brought in the claimant’s claim form. Furthermore, I note when responding directly to the legal claims at paragraph 43 onwards, the first respondent does not argue that it was not the employer for the purposes of defending the ordinary or automatic unfair dismissal (or any of the) claims – [104]. It does not even run the argument as an alternative.[13]Furthermore, the first respondent set out to the claimant in a letter dated 6 June 2024 that it is common ground between the first respondent and the claimant that the first respondent was the employer at all material times – [243]. This letter also sets out that there is no pleaded claim against the second and third respondents, and invites the claimant to withdraw the claim against them accordingly.[14]The second and third respondents’ position is that, on the pleaded case, there is no claim against them. Ms Darwin cites the Civil Procedural Rules 1998, specifically CPR 3.4 which deals with strike out; specifically, CPR 3.4(2)(a): “The court may strike out a statement of case if it appears to the court – (a) That the statement of case discloses no reasonable grounds for bringing or defending the claim”.[15]Therefore, Ms Darwin submits that the claim displays no reasonable grounds for bringing a claim against the second and third respondents.[16]Ms Ferber’s position is that, although the claimant has not sought to assert a positive case that his employer was the second or third respondent, his position is that there is a question mark around the identity of his employer. This is based on his reading of several documents as set out by Ms Ferber in her skeleton argument at paragraphs 15 and 16. Those documents are at [295], [297], [298], [311-312], [313-330], [331], [338/359], [373] and [374] (regarding the second respondent) and [376/379], [100], [381-389] (regarding the third respondent). I have looked at all of these documents.[17]The main documents the claimant relies upon and that Ms Ferber specifically took me to are tax returns and documents relating to the claimant’s Visa application: 17.1. The tax returns for 2023 and 2024 – [338/359]; and, 17.2. The Visa application documents, specifically the certificates of sponsorship documents – [376/379].[18]The tax returns at [338] and [359] (and throughout the tax returns) record “full name of employer” as the second respondent. These tax returns were completed by Deloitte Aberdeen LLP on behalf of the claimant.[19]The sponsorship certificates at [376/379] record that the third respondent is the “Sponsor Name” for the purposes of the claimant’s Visa application. The claimant submits that the sponsor for the purposes of a Visa application is typically the employer.[20]The claimant’s position therefore is that, despite the common position that the first respondent was the claimant’s employer, there is evidence upon which the Tribunal may reach an alternative conclusion and find that the second or third respondent was in fact the claimant’s employer. Therefore, he says, in relation to the strike out application, that there is a dispute of key facts as to the identity of the employer which needs to be resolved following hearing evidence at a final hearing, meaning that this case cannot be struck out at this stage. Ms Ferber said that: “[The identity of the employer] is a factual question that needs to be resolved after an investigation of the facts. It is not enough for the first respondent to say “we accept that we are the employer” as, on the facts, it may turn out that the employer was someone else”.[21]The claimant’s position therefore is that it is not appropriate to strike out the claims against the second and third respondents. Law[22]The second and third respondents apply to strike out the claimant’s claim against them under r38(1)(a) of the Employment Tribunal Procedural Rules 2024, which provides as follows: “The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds – (a) That it is scandalous or vexatious or has no reasonable prospect of success; ...”[23]Generally, this power to strike out should only be used in rare circumstances – Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755. It is understood that, as a general rule of thumb, claims should not be struck out where there is a dispute of facts that go to the core of the claim – Ezsias v North Glamorgan NHS Trust [2007] IRLR 603.[24]I am also assisted by the case of Balls v Downham Market High School and College [2011] IRLR 217, in which Lady Smith held: “When strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success, the structure of the exercise that the tribunal has to carry out is the same; the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word “no” because it shows that the test is not whether the claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.”[25]Only in exceptional circumstances will a claim with contested facts be struck out – Ezsias. This has been repeated recently in Twist DX Limited v Armes [2024] EAT 45: “Applications to strike out are most suited to situations in which it is clear from the pleaded case that there is a knockout blow, which generally only requires consideration of a very limited number of documents”.[26]However, there are some caveats to the general approach of caution towards strike out applications. For example, when: 26.1. “It is instantly demonstrable that the central facts in the claim are untrue” – Tayside; 26.2. There is no real substance to the factual assertions the claimant makes, particularly in light of contradictory contemporaneous documentary evidence – ED & F Man Liquid Products v Patel [2003] EWCA Civ 472; 26.3. There are no reasonable prospects of the facts needed to find liability being established. This is caveated by the need to be aware of the danger of reaching that conclusion without having heard all the evidence – Ahir v British Airways plc [2017] EWCA Civ 1392 CA; 26.4. When considering an application to strike out, a claimant’s claim must be taken at its highest, as it is set out in the ET1, “unless contradicted by plainly inconsistent documents” – Ukegheson v London Borough of Haringey [2015] ICR 1285.
Conclusions
[27]Technically, I agree with the respondents, that there is no live claim against the second and third respondents. Furthermore, technically, there is no live application to amend the claim to include those two respondents, despite the claimant’s knowledge that the respondents’ strike out application is made on the ground that there is no claim against them.[28]However, I do not agree with Ms Darwin’s submission that this is analogous to a case in the County Court, ruled by the CPR, demonstrating no reasonable grounds for bringing a claim. I consider that the claimant has effectively pleaded the claim protectively and/or in the alternative against the second and third respondents in the event that they are found to be the employer, as per paragraph 11 of the Grounds of Complaint. I accept the claimant’s submission that, in pleading such a case, he either had to plead an unfair dismissal claim against more than one employer, and therefore be at risk of a strike out application (given a claimant can only have one employer liable for an unfair dismissal claim); or he had to do what the claimant did here, and bring the claim against one respondent with reference to other possible employers in the alternative and risk a strike out application such as he faces today. In other words, a claimant in such a position is at risk of respondents’ making strike out applications whichever way they plead their case. I am therefore not overly concerned as to whether there is a live claim technically against the two respondents or not: this could be rectified by an application to amend if considered necessary.[29]The more pertinent point in my view is that, as at the time of this application, both the claimant and the first respondent, on the face of their respective pleadings, agree that the first respondent was the claimant’s employer at the material time. Moreover, neither side has attempted to step back from that (apparently agreed) position, and place the second or third respondent in the role of employer.[30]As set out above, the claimant’s position is that, in light of certain documents, a tribunal may reach the conclusion that the second or third respondent was the claimant’s employer at the relevant time.[31]I understand that the documents cited above at paragraphs 16 and 17 may have caused some confusion. However, none of the documents that the claimant has drawn to my attention categorically disproves the factual assertion that the first respondent was the claimant’s employer. It is not the case that the claimant is positively asserting that the second or third respondent was his employer on the basis of the documents. The claimant’s position is that he says these documents lead to confusion, and may mean that someone somewhere has misrepresented the position to HMRC and the Home Office. That issue (as to misrepresentation and therefore credibility) is a matter which, if relevant to the issues in the claims, can be properly explored at the final hearing in due course.[32]The claimant’s position is, as set out above, that there is a dispute of fact as to the identity of the employer, meaning that this case cannot be struck out at this stage. I do not agree with this interpretation of the position we find ourselves in. The first respondent positively asserts that it was the claimant’s employer throughout the relevant period. The claimant has not positively asserted anything different, but in fact in his pleadings positively asserts that the first respondent was his employer. He has named the second and third respondents protectively in case his interpretation is incorrect.[33]In that circumstance, a tribunal would have no need to go behind the position stated by the first respondent, that it was the employer when that position is not disputed by the claimant. There is no disputed issue as to the identity of the employer.[34]The tribunal only need make findings of fact that are relevant to the issues before it. The issue of employer identity is not something that is being actively disputed. I therefore see no reason at all for the Employment Tribunal to engage with facts on the issue of identity and come to a decision as to the identity of the employer, beyond accepting the position as positively asserted by both the claimant and the first respondent in their respective pleadings.[35]I understand the claimant’s concerns that, if questions of credibility are put to respondent witnesses at a final hearing, it may be that a respondent witness seeks independently to resile from the position that the first respondent was at all material times the employer.[36]Firstly, striking out the claims against the second and third respondent does not prevent the claimant from asking questions pertinent to credibility to any witnesses who attend on behalf of any remaining respondents.[37]Secondly, if any evidence from a respondent witness did lead to the position in which the first respondent sought to resile from its concession that it was at all material times the claimant’s employer, that would evidently be a matter that would have to be determined by the Tribunal hearing the final hearing. If an application to resile were to be determined in favour of the first respondent and that admission was retracted, then at that stage it would evidently be appropriate to add in the second or third respondent as the employer in the alternative. Therefore, the claimant does not lose the right to pursue his claim against his employer, even if at some stage down the line the first respondent seeks to resile from its declared position today that it was the claimant’s employer.[38]Thirdly, I should make it clear, whilst obviously not binding any future tribunal, that, given the first respondent’s application today is predicated almost entirely on the fact it accepts that it was the claimant’s employer, and its pleaded case reflects that position, I am sure it would not be surprising to it if any application to resile from that position was to be met with a dim view indeed.[39]The claim against the second and third respondents, such as it is, is brought in the alternative if the first respondent is not the employer. In other words, those two respondents are only said to be liable by the claimant to the extent that they were the employer at the relevant time. Given that the identity of the employer will not be a question which the Tribunal need to determine, I find that there is no reasonable prospect of the second or third respondent’s being found to be the employer. Therefore, I consider that there are no reasonable prospects of a claim against the second and third respondent, on the basis of either of them being the employer, succeeding.[40]As such I strike out the claim against the second and third respondents. Approved by
The Hearing
[41]Ms Darwin disagrees. She argues for the respondents that Prahl is decided wrongly in that Article 8 of the Recast Regulation was not imported into the CJJA82 and the EAT cannot presume this was other than deliberate, and that the decision in Prahl does not extinguish the need for a jurisdictional gateway, the only gateway being the CJJA82.[42]As far as there is any dispute between the parties, I accept that the decision in Prahl is directly relevant to this case and I must apply it in reaching my decision. Whether the decision is wrong is not a matter I have taken into consideration.[43]I have also specifically taken into consideration the reasoning of Kerr J in Bhatti, approved in Prahl, set out at paragraphs [65-71]. 65…I can accept that domestic statutes which have territorial application to a claim do themselves confer international jurisdiction, but only if that jurisdiction is not displaced by the Brussels Regulation or some other principle of private international law with force equal to that of primary domestic legislation, such as the relevant provisions of the 1982 Act; cf. in Stena Drilling Pte Limited v Smith, per Lord Fairley at [13]-[14].66. The judge was therefore right to go on to consider the Brussels Regulation. He did so starting at [196]ff. He quoted recitals (4), (6) and (21). He noted their purpose of ensuring uniformity and avoiding jurisdictional disputes as between member states of the EU, within the EU. He concluded that the Regulation applied to resolve competing jurisdictional claims of EU member states. Where there were no such competing claims, for example because the respondent is domiciled outside the EU, the national rules of jurisdiction of the court seised of the case would generally apply.67. That was indicated by recital (14) and given effect to by article 6(1), but those provisions are supplemented by others intended to protect employees and consumers who are generally the weaker party in a dispute. In the case of employees, articles 21 and 20 are potentially relevant. The judge decided (see the judgment at [200]-[204]) that these could be relied on to assist an employee but could not be used to work injustice by ousting national rules of jurisdiction to the detriment of an employee, depriving her of any remedy.68. In my judgment, the judge was correct in that interpretation of the relevant provisions of the Brussels Regulation. Article 21(2), read with (1)(b), provides that an employer not domiciled in an EU member state – such as, in this case, the respondent – may be sued in a court of the member state where she habitually worked or last habitually worked; or, if she does not or did not habitually work in any one country, in the courts of the place where the business which engaged her is or was situated.69. Like the judge below, I can see no reason to interpret that as an exclusive jurisdiction clause limiting jurisdiction to the court or courts mentioned in the article. That could make article 21 an instrument of injustice, contrary to the objective of protecting employees. The better view is that if the requirements of article 21(2) and (1)(b) are not met, the employee can sue in the court of a member state whose national rules of jurisdiction would, aside from the Brussels Regulation, be applicable to the claim and would confer jurisdiction over the claim.70. I would interpret article 20 in the same way. Article 20(1) states that in matters relating to individual employment contracts, “jurisdiction shall be determined by this Section, without prejudice to Article 6 ….”. Article 6(1) expresses the general rule that for defendants domiciled outside the EU, jurisdiction of each member state shall be determined by the law of that member state. Without prejudice to that general rule, article 20(2) then creates, in addition, a deemed EU state domicile for disputes arising out of the operations of a branch, agency or other establishment in that state. This may give the employee an additional option but I do not think it is an exclusive jurisdiction provision.71. I therefore consider that the judge was right to decide that the Brussels Regulation does not assist the respondent. It does not confer on a non-EU domiciled defendant the right to be sued exclusively in the courts of its nonEU domicile, even if the dispute does not arise out of the operations of a branch, etc, located within an EU member state. It follows that there was nothing in this case to prevent the primary legislation provisions applicable to the claimant’s claims from also conferring international jurisdiction on the English tribunal to determine them.[44]All parties agree that the employment tribunal has international jurisdiction in respect of R1. The claimant seeks to bring a claim of sex discrimination against Rs4-7 under ss110-112 Equality Act 2010. Prahl was, similarly, a situation where the claimant sought to bring claims under s110 Equality Act 2010 against the respondents.[45]Applying the decision in Prahl, in which Bhatti was upheld, it is not necessary for the claimant to establish a route to international jurisdiction under s15C where he has another route. I need only consider whether there is anything in s15C, which precludes a claim being brought in the employment tribunal against respondents R4-7. There is not and therefore I agree with the claimant that where the tribunal has international jurisdiction in relation to R1 it also has international jurisdiction in relation to Rs4-7 where a claim is brought against those respondents under ss110-112 Equality Act 2010. Claimant’s alternative argument[46]As it was made clear to me in the hearing that a decision against the respondents would likely result in an appeal, I have gone on to consider the claimant’s second argument which is that if it is necessary to establish a specific gateway to international jurisdiction through s15A-E CJJA82, the claimant has done that. I find as follows: The claimant has a good arguable case based on plausible evidence that, 46.1. For the purposes of s15A (1)(b) and s15C(1) the claims relate to an individual contract of employment. 46.2. For the purposes of s15A (2) the proceedings are within the scope of Article 1 of the Recast Regulation. 46.3. For the purposes of s15C(2)(b) there is a good arguable case that the Rs4-7 were employers of the claimant and that the claimant habitually carried out his work from the United Kingdom.[47]My reasoning for this decision is as follows.[48]It is the clear ratio in Prahl that the provisions of the CJJA82 at ss15AE were intended to continue to maintain the approach of the Recast Regulations. That approach, is set out in the explanatory memorandum and quoted in Prahl:65. It is also abundantly clear that the intention of the amendments to the 1982 Act made by the 2019 Regulations was to continue to maintain that approach to claims in the employment sphere. As the explanatory memorandum puts it at paragraph 2.6: “The rules continue the particular protections offered to consumers and employees domiciled in the UK by the Brussels Ia Regulation, including a right to be sued in relation to a consumer, or employment, dispute only in the part of the UK in which they are domiciled (regardless of the domicile of the other party), and a right to sue the other party in such a dispute in parts of the UK with relevant connections – all of which largely obviates the need for the consumer, or employee, to sue abroad in such cases (with the attendant expense and difficulty for this category of economically weaker parties which having to sue outside their own forum brings).”66. At paragraph 7.1 the memorandum says that the instrument “retains and restates” rules contained in the Brussels Recast Regulation in cases brought “by employees who work or have worked in the UK”; and at 7.19 it is stated: “The rationale for retaining and restating the approach to jurisdiction in consumer and employment cases contained in the Brussels Ia Regulation (as described above) reflects the protective nature of these rules towards parties who are traditionally seen as economically weaker and perhaps less legally aware than their opponents (so, suppliers and sellers, and employers). The rules ensure that the consumer or employee should in general not have to sue, or be sued, in a jurisdiction which is unfamiliar to him in terms of, for example, language. These rules applied not only to suppliers or sellers, and employers, domiciled in the EU, but also those who were not so domiciled, and this approach is continued. These protective rules are not available in the common law and statutory provision of England and Wales and Northern Ireland, and only to a more limited extent in Scotland, apart from the Brussels regime, and so the Government has chosen to retain them.”[49]HHJ Auerbach goes on to state that: 67. The new section 15C effectively replicates Article 21 of the Brussels Recast Regulation, including its references to “employer” and “employee”. It is true that the amendments introduced do not include a further provision replicating Article 8(1), which provided that a person domiciled in a member state may be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. But it is clear, I think, from the explanatory memorandum, that the purpose of these provisions was to ensure the continued avoidance of multiplicity of claims in cases brought against more than one party arising out of the same circumstances; and there is no sign that it was the intention of Parliament deliberately to introduce new provisions that are more restrictive, and require claimants to have to bring separate claims against some respondents in another state.[50]Both counsel agreed that the claimant has the burden of proof of showing that he has a ‘good arguable case’ that he meets the requirements under s15C such that it could presumed that the employment tribunal has international jurisdiction in relation to Rs4-7. The three limbs to establishing a good arguable case were set out in Brownlie v Four Seasons Holdings Inc [2018] WLR 192 at paragraph 7: “What is meant is(i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway;(ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the Court must take a view on the material available if it can reliably do so; but(iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.”[51]Ms Darwin for the respondents said that the material before the tribunal was not so limited that no reliable assessment could be made and that the tribunal must take a view on it. Ms Ferber for the claimant disagreed, referring to the case of Kalo v Bankmead Sal [2024] IL Pr 7 in which a more liberal approach was taken on whether it was incumbent on the tribunal to make findings of fact in a preliminary hearing.[52]I agree with Ms Ferber that I am not bound to make findings of fact and note particularly that I must avoid making findings which would be relevant to the substance of the claims, and, as I am not deciding territorial jurisdiction, should not make findings that would be determinative in that decision. I have therefore considered whether there is a plausible evidential basis that the claimant has a gateway to international jurisdiction in relation to Rs 4-7. The limited facts I have found and applied are set out above. Is each respondent an employer?[53]The parties agree that when considering the definition of employer for the purposes of s15C(2)(b), it is the definition that has been arrived at in European law cases that is relevant. This matter was also considered by EJ Adkin in the first instance decision in Prahl (Lapinski v Triton Investment Advisors LLP ET 2206435/2022 paragraph 98) who set out and relied upon the following passages in Petter: [12] The proper approach to the judge's decision It was common ground before the judge and before us that a claimant will establish that the court has jurisdiction if he can show 'a good arguable case' to that effect. In the present case that means a good arguable case that the court has jurisdiction under Section 5 of the Regulation. For these purposes it is accepted that 'a good arguable case' means 'having much the better of the argument' or 'a much better argument than the defendant' on the basis of the material before the court. In the present case the facts were not significantly in issue and the question therefore ultimately turned on the meaning of the words 'employee', 'employer' and 'contract of employment' in Section 5 of the Regulation. … [17] In WPP Holdings Italy SRL v Benatti [2006] EWHC 1641 (Comm), [2007] 1 All ER (Comm) 208 Field J identified three characteristics of a contract of employment for the purposes of Section 5 of the Regulation. They were:(i) the provision of services by one party over a period of time for which remuneration is paid;(ii) control and direction over the provision of the services by the counterparty; and(iii) integration to some extent of the provider of the services within the organisational framework of the counterparty. Those indicia were derived from such authority as existed on the distinction between contracts of employment and contracts for the provision of services. In my view they are helpful, but it is of equal importance to have regard to the judge's exhortation to bear in mind that the underlying policy of Section 5 is to protect employees because they are considered from a socio-economic point of view to be the weaker parties to the contract. This has recently been reaffirmed by the Court of Justice in Mahamdia v Algeria, at paragraphs 46 and 60. [18] Mr Bloch [for EMC] accepted that the expressions 'employer' and 'employee' might have to be construed more broadly than they would be in domestic law, but he submitted that there was nothing to suggest that they should be construed so broadly as to encompass a situation in which there was no contractual relationship between the parties of the kind envisaged in WPP v Benatti. In my view, however, there is no reason to make what is no more than an assumption based on domestic law views of what is required for the relationship of employer and employee to exist. When seeking to interpret European legislation it is important to ascertain the purpose which it is designed to achieve, since that is likely to provide a surer guide to its meaning than a close scrutiny of the words used. In the present case the purpose of Section 5 is identified in recitals 18 and 19, which state as follows: '18. In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules. … [19] These two recitals make it clear that even a principle as important as party autonomy is required to give way to prescriptive rules in favour of the protection of employees as the weaker parties in disputes relating to contracts of employment. In those circumstances it is necessary to interpret the whole of Section 5 in a way that will most effectively afford employees the degree of protection which those who framed the Regulation intended them to receive. That is most likely to be achieved by looking at the substance of the relationship rather than the legal structure within which it sits." [Emphasis added][54]It is evident that in Petter too, the clear view of the deciding judge, MooreBick LJ was that the underlying policy of the legislation was to protect the weaker party, and that was a matter to be considered when determining whether the respective respondents were employers, or there was an employment contract. EJ Adkin went on to find in Prahl that the three respondents, LLP members, were employers of the claimant, despite there being no contract between the claimant and any of the respondents, on a purposive reading of the definitions as suggested in Petter. HHJ Auerbach upheld that decision at paragraphs 70 to 74 of the EAT judgment.[55]In relation to whether or not any of the four respondents in this case were employers of the claimant, I was referred to Samengo Turner v J&H Marsh & McLennan (Services) Ltd [2008] ICR 18, a court of appeal case also quoted in Prahl. At paragraph 71 HHJ Auerbach concludes that the same approach should be taken in determining whether or not a respondent was an employer as would have been taken under the Recast Regulation, i.e. to protect the weaker party and avoid multiplicity of proceedings.[56]I have taken the same approach as that taken by EJ Adkin and upheld by HHJ Auerbach but have still considered the matter separately in relation to each of the four respondents.[57]R4 is the parent company of the Total group. The vice president of E& P was employed by R4. The project on which the claimant worked (Tilenga) was a project which came under the purview of E&P. R4 set policies for the whole of the group and gave budgetary approval to projects which subsidiaries wished to run. At the time of commencement of employment R4 made the offer of a job and said it would ask R1 to issue a contract [352]. Documentation was provided indicating that R4 had significant influence in terms of roles offered [357-358]. The claimant though working on the Tilenga Project was part of the E&P group, which operated across the group but was headquartered at R4.[58]R7 was the entity to which the claimant provided his services while working on the Tilenga project. He was, for the purposes of that project, integrated into the organisational structure of R7. R7 reimbursed his wages to R1. He was subject to the line management of others who were integrated into the organisational structure of R7.[59]Though the facts are not exactly aligned, both Petter and Samengo Turner involved claims against companies in a group which were not the companies with which the claimant had an employment contract. In both cases a decision was made that the other companies were to be treated as employers for the purposes of the Recast Regulation.[60]It is my decision that the claimant has a good arguable case based on plausible evidence that R4 and R7 were his employers for the purpose of s15C CJJA82, where that statute is interpreted in accordance with s15E CJJA82.[61]As regards R5 and R6, some points were made in cross examination about the difference in direct line management of the claimant by R5 as opposed to the less frequent direct management by R6, but for the purposes of the decision I need to make I did not find that this distinction was operative. Both R5 and R6 had control over the work carried out by the claimant on the Tilenga project.[62]While I accept much of what Ms Darwin sets out in her skeleton argument at paragraphs 46 to 49 and 51, being that R5 and R6 were exercising control for R7, not themselves, and they were not liable to remunerate the claimant, this does not address the clear finding in Prahl that s15C and the concepts of employer and employee as defined in European Law should be interpreted purposively in line with the approach taken in the Recast Regulation, i.e. the protection of the weaker party and the avoidance of the multiplicity of proceedings.[63]I do not accept Ms Darwin’s submission that where consumer and employment contracts are deliberately singled out for particular protection under the Recast Regulation and the CJJA82 on the grounds that employees and consumers are generally the weaker party, that protection should be extended to R5 and R6 as employees, in this situation. That was not the stated intention of that legislation. It clearly addresses proceedings being brought by employees and consumers.[64]In summarising his approach in Prahl to whether three LLP members could be construed as employers for the purposes of determining whether the employment tribunal had international jurisdiction in claims brought against them, HHJ Auerbach states:[74]However, the judge [EJ Adkin at first instance] properly saw the guidance in these authorities as informing the general approach to be taken by him. Section 5 of the Brussels Recast Regulation applied, as provided by Article 20(1), to “matters relating to contracts of employment”. In Petter Moore-Bick LJ observed at [19] that the objective of section 5, to protect employees as the weaker parties, was “most likely to be achieved by looking at the substance of the relationship rather than the legal structure within which it sits”. That properly informed the approach taken by the present employment judge. Moore-Bick LJ also observed at [20] that a dispute may relate to a contract of employment “even though the claim itself sounds in tort”. I consider that the complaints against these appellants are properly viewed as raising “matters relating to” what is to be regarded as a contract of employment. 65. Applying this reasoning I conclude that the claimant has a good arguable case based on plausible evidence that R5 and R6 were his employers for the purpose of s15C CJJA82, where that statute is interpreted in accordance with s15E CJJA82. Did the claimant habitually work in the UK? 66. The claimant must also show a good arguable case that the United Kingdom is the place from where he habitually carried out his work for his employer or last did so. 67. Ms Darwin cross examined the claimant at length on this matter and argues on behalf of the respondents that the claimant was working from the UK for a short period of time (less than a year) on the Tilenga project. He was not carrying out work for the Total Energies group after he was removed from the Tilenga project although he was not dismissed until 31 December 2023. It was not his habitual place of work as he had worked in many other countries over the tenure of his 10 years of employment with Total Group as was the nature of the work, he was paid in Swiss francs and, when he applied for a visa to work in the UK he gave his country of residence as France. Ms Darwin did not refer me to any case law. 68. Ms Ferber said that the claimant was demobilised after 25 July 2022. He was looking for a new role in the Total Energies group and was off sick. It could not be the case that the claimant would lose his claim that the employment tribunal had international jurisdiction because he was unwell and had not been given a new post. The wording of s15C(2)(b) CJJA82 did not just refer to habitual place of work. Applying Nogueira and others v Crewlink Ireland Ltd [2018] I.C.R. 344 the claimant habitually worked in the UK. 69. I was also provided with the judgment in Gagliardi v Evolution Capital Management LLC [2023] EWHC 1608(Comm) in which the decision in Nogueira is applied, as follows: 29 As to issue (2), on the question of where an employee habitually works, I was referred by Mr Oudkerk KC to the decision of the Court of Justice in Nogueira v Crewlink Ireland Ltd (Joined Cases C-168/16 and C-169/16) [2018] ICR 344, para 63: As observed by the Advocate General in point 85 of his opinion, as regards work relationships in the transport sector, the court, in Koelzsch [v Grand Duchy of Luxembourg (Case C-29/10) [2012] ICR 112; [2012] QB 210], para 49 and Voogsgeerd [v Navimer SA (Case C-384/10)] [2011] ECR I-13275, paras 38—41, mentioned several indicia that might be taken into consideration by the national courts. Those courts must, in particular, determine in which member state is situated(i) the place from which the employee carries out his transport-related tasks,(ii) the place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and(iii) the place where his work tools are to be found. 30 Most of the CJEU case law on this issue has arisen where employees undertake their work from more than one place. Ugljesa Grusic in The European Private International Law of Employment (2015), p 110, suggests that the habitual place of work is easily identifiable where the work is performed in one place . 31 I have read the evidence of Mr Lerch, Mr Chisholm and Mr Brindle filed for Evolution carefully. That evidence does not suggest that Mr Gagliardi s physical location when doing what he did for Evolution was anywhere other than London. I am satisfied that the habitual place of Mr Gagliardi’s work for the period of nearly one year prior to his termination is not affected by the disputed evidence led by Evolution that it was always intended that the place of that habitual work would at some point, and perhaps at some point soon, become a place of work somewhere in the United States. Taken at face value, the effect of that evidence is that Mr Gagliardi was planning to relocate to the US, or was going to live in or move back to the US, but had yet to make the move. Implicit in those statements is an acceptance that, for nearly one year, he was working in London, without yet having made the allegedly anticipated move. It is noteworthy that Los Angeles, Miami and New York are all identified by Evolution’s witnesses as cities under consideration for the relocation, but none was ever committed to. 32 By contrast, Mr Brindle, Evolution’s CFO, confirms that office space in the Fulham Road was rented by a related company so that Mr Gagliardi could work there and his evidence is that Mr Gagliardi attended that office around three times a week. That is more than sufficient to establish a good arguable case as to the application of section 15C(2)(b). 70. Applying the reasoning in Gagliardi and the wording of s15C(2)(b), the matters to be taken into account are actual physical presence in terms of where the claimant resided, and where he carried out his work at the relevant time, rather than how he was paid or taxed. As the claimant was living with his family in London from August 2021 until the end of his employment with the Total Energies group and worked out of an office in Feltham until he was removed from the Tilenga project, I find that he has shown that he has a good arguable case based on plausible evidence that the United Kingdom is the place from where he habitually carried out his work for his employer or last did so. 71. For these reasons I find that on an application of s15 CJJA82, the tribunal has international jurisdiction in relation to the claims against Rs4-7. Approved by:
The Law
[80]In cases of type(a) there will be territorial jurisdiction. In cases of type(b) the presumption is against jurisdiction unless there is something which puts the case in an exceptional category, such that the employment has much stronger connections both with Great Britain and British employment law than with any other system of law. That is a question of fact and degree. A non-exhaustive range of factors could be relevant. In cases of type(c) the case does not have to be “truly exceptional” for territorial jurisdiction to be established; and the comparative exercise called for in a type (b) case is not required. There merely needs to be a sufficiently strong connection with Great Britain and British law.” (my underlined emphasis) 43. Ms Ferber submits, and I agree, that the reference to “the relevant time or during the relevant period” is a reference to the relevant time for the purposes of the complaint to the Tribunal. 44. Ms Darwin accepted Ms Ferber’s analysis on the relevant time, but further noted, and I also accept, that the position may be more nuanced where the employee was absent through illness at the relevant time, in which case a broader analysis of the factual background is required. That point was made in Hunt v United Airlines Inc [2008] ICR 934 at paragraphs 37-39, and in particular at paragraph 37: … there may be many situations in which the employee is not actually working at the date of the dismissal; and in such a case, in my judgment, the tribunal must look more broadly at the facts in evaluating where the employees base was rather than simply asking where the employee was working at that date. The Relevance of Geographical Location 45. In determining territorial jurisdiction, Lord Hoffman, in Lawson at paragraphs 25-27 considered the importance of the geographical location of the employee to the territorial jurisdiction of the Tribunal: [25]… [T]he standard, normal or paradigm case of the application of section 94(1) was the employee who was working in Great Britain. … [27] Since 1971 there has been a radical change in the attitude of Parliament and the courts to the employment relationship and I think that the application of section 94(1) should now depend upon whether the employee was working in Great Britain at the time of his dismissal, rather than upon what was contemplated at the time, perhaps many years earlier, when the contract was made. I would therefore expect Mrs Carver's case to be decided differently if it came before the courts today. The terms of the contract and the prior history of the contractual relationship may be relevant to whether the employee is really working in Great Britain or whether he is merely on a casual visit (for example, in the course of peripatetic duties based elsewhere) but ordinarily the question should simply be whether he is working in Great Britain at the time when he is dismissed… 46. These observations are in line with Lord Hoffman’s observation in Lawson at paragraph 11: … [W]hen Parliament created the new remedy in 1971, it thought that the sole criterion delimiting its territorial scope should be the place where the employee worked. If he ordinarily worked in Great Britain, he should be entitled to protection. If not, then he should not. It attached no significance to such matters as the places where he was engaged, from which he was managed or his employer resided. The repeal of section 196 means that the courts are no longer rigidly confined to this single litmus test. Nevertheless, the importance which parliament attached to the place of work is a relevant historical fact which retains persuasive force. 47. Lord Hoffman did observe that the matter may be different and more difficult for expatriate employees when, at paragraph 36 of Lawson, he held: The circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation. But I think that there are some who do. 48. Lord Hoffman also went on to “try, without drafting a definition, to identify the characteristics which such exceptional cases will ordinarily have”: 37. First, I think that it would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain. But that would not be enough. Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was "rooted and forged" in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary. 38. Something more may be provided by the fact that the employee is posted abroad by a British employer for the purposes of a business carried on in Great Britain. He is not working for a business conducted in a foreign country which belongs to British owners or is a branch of a British business, but as representative of a business conducted at home. I have in mind, for example, a foreign correspondent on the staff of a British newspaper, who is posted to Rome or Peking and may remain for years living in Italy or China but remains nevertheless a permanent employee of the newspaper who could be posted to some other country. He would in my opinion fall within the scope of section 94(1). The distinction is illustrated by Financial Times Ltd v Bishop [2003] UKEAT 0147, a decision of the Employment Appeal Tribunal delivered by Judge Burke QC. Mr Bishop was originally a sales executive working for the Financial Times in London. At the time of his dismissal in 2002 he had been working for three years in San Francisco selling advertising space. The Employment Tribunal accepted jurisdiction on the ground that under European rules it had personal jurisdiction over the Financial Times: see article 19 of Regulation EC 44/2201. But that was not a sufficient ground: the Regulation assumes that the employee has a claim to enforce, whereas the question was whether section 94(1) gave Mr Bishop a substantive claim. Having set aside this decision, the EAT was in my opinion right in saying that the findings of fact were inadequate to enable it to give its own decision. The question was whether Mr Bishop was selling advertising space in San Francisco as a part of the business which the Financial Times conducted in London or whether he was working for a business which the Financial Times or an associated company was conducting in the United States: for example, by selling advertising in the Financial Times American edition. In the latter case, section 94 would not in my view apply. (Compare Jackson v Ghost Ltd [2003] IRLR 824, which was a clear case of employment in a foreign business). 39. Another example is an expatriate employee of a British employer who is operating within what amounts for practical purposes to an extra-territorial British enclave in a foreign country. This was the position of Mr Botham working in a military base in Germany. And I think, although the case is not quite so strong, that the same is true of Mr Lawson at the RAF base on Ascension Island. While it is true that Mr Lawson was there in a support role, employed by a private firm to provide security on the base, I think it would be unrealistic to regard him as having taken up employment in a foreign community in the same way as if Serco Ltd were providing security services for a hospital in Berlin. I have no doubt that Bryant v Foreign and Commonwealth Office [2003] UKEAT 174, in which it was held that section 94(1) did not apply to a British national locally engaged to work in the British Embassy in Rome, was rightly decided. But on Ascension there was no local community. In practice, as opposed to constitutional theory, the base was a British outpost in the South Atlantic. Although there was a local system of law, the connection between the employment relationship and the United Kingdom were overwhelmingly stronger. 49. Lord Hoffman also observed, at paragraph 41, that … [I]n the case of expatriate employees, it is quite possible that they will be entitled to make claims under both the local law and section 94(1). … Obviously there cannot be double recovery and any compensation paid under the foreign system would have to be taken into account by an Employment Tribunal. 50. Whilst both parties agreed that Lawson is still good law, both parties also agreed the law has developed since Lawson. 51. In Ravat v Halliburton [2012] ICR 389 at paragraphs 27, Lord Hope held: Mr Cavanagh drew attention to Lord Hoffmanns comment in Lawson v Serco Ltd [2006] ICR 250, para 37, that the fact that the relationship was rooted and forged in Great Britain because the employee happened to be British and he was recruited in Great Britain by a British company ought not to be sufficient in itself to take the case out of the general rule. Those factors will never be unimportant, but I agree that the starting point needs to be more precisely identified. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. … 52. In Bates van Winkelhof v Clyde and Co [2012] IRLR 992 at paragraph 98, Lord Justice Elias, with reference to Lord Hope’s judgment in Ravat, contrasted a case where an applicant is employed wholly abroad with one where an applicant lives and/or works for at least part of the time in Great Britain: The comparative exercise will be appropriate where the applicant is employed wholly abroad. There is then a strong connection with that other jurisdiction and Parliament can be assumed to have intended that in the usual case that jurisdiction, rather than Great Britain, should provide the appropriate system of law. In those circumstances it is necessary to identify factors which are sufficiently powerful to displace the territorial pull of the place of work, and some comparison and evaluation of the connections between the two systems will typically be required to demonstrate why the displacing factors set up a sufficiently strong counter-force. However, as para 29 of Lord Hope DPSC s judgment makes plain, that is not necessary where the applicant lives and/or works for at least part of the time in Great Britain, as is the case here. The territorial attraction is then far from being all one way and the circumstances need not be truly exceptional before the connection with the system of law in Great Britain can be identified. All that is required is that the tribunal should satisfy itself that the connection is, to use Lord Hope DPSC’s words: “sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim.” 53. As such, in the case of working wholly abroad, there is a strong connection with the jurisdiction abroad, and Parliament can be assumed to have intended in the usual case that that jurisdiction, rather than that of Great Britain, should provide the appropriate system of law. In such circumstances it is necessary to identify factors which are sufficiently powerful to displace the territorial pull of the place of work abroad (see also Olsen v Gearbulk Services Ltd [2015] IRLR 818 at paragraph 24). I would also pause to note the obverse must be true and where the Claimant is employed wholly in Great Britain that can be contrasted with a case where they live and work for part of their time outside of Great Britain. 54. In Fuller v United Healthcare Services and Radkiewicz [2014] All ER(d) (D) 41 at paragraph 18, Lady Stacey approved the observations of the Employment Judge below who considered that whilst geographical location would be important, it was not determinative. At paragraph 42, Lady Stacey confirmed the wider analysis which is required: It is clear from Ravat that all the circumstances of the individual must be considered. These include, but are not limited to, the terms of the contract, the applicable law, the place of performance of the work, and the living arrangements of the employee. Only once these facts have been ascertained can the ET stand back and consider what connection if any there is to Great Britain, and importantly, with British employment law. Only then can the ET decide if Parliament can reasonably be said to have intended the territorial scope of the legislation to include the situation of the claimant. 55. I would observe that the observations in Fuller, informed by Ravat, are made in the context of the facts of the case, neither of which involved a Claimant who was at the relevant time wholly living and working in Great Britain and that, in my view, care should be taken in stepping away from the importance of geographical location at the relevant time, per Lawson and Bates van Winkelhof. 56. The most recent case to which I was referred on territorial jurisdiction was Cable News International Inc v Bhatti [2025] EAT 63. It was one of the few cases which were brought to my attention where the Claimant was living and working in the UK at the relevant time. Ms Bhatti, was a journalist and a British national who was returning to the UK and had only been back in the UK for 3 months (having returned on medical leave) when she was dismissed. In that 3 month period she had worked a single day. In terms of her contract, the governing law was that of Atlanta, USA. She was paid monthly even when not working, including when on “medical leave”. In a decision which was upheld by the Employment Appeal Tribunal, the Tribunal determined that the territorial pull of the UK had displaced the last place she had been residing, Bangkok. In my view, that decision speaks to the importance of geographical location at the relevant time to the determination of territorial pull. 57. The above said, both Ms Ferber and Ms Darwin submitted, correctly in my view, that whilst geographical location will be important, it is not the only consideration in determining territorial jurisdiction. The Relevance of the Employment Right 58. The right which is being asserted can also be relevant. Conceptually, one can see the difference between exercising a breach of contract claim before the Employment Tribunal and exercising statutory rights. As Mr Justice Langstaff held in Olsen at paragraph 39: To focus on the connection which an employee has not just to Great Britain but also to British employment law moves away from attaching sole importance to the place where an employee habitually, physically works. The need to consider British employment law as well as connections with Great Britain originates at paragraph 40 in the speech of Lord Hoffmann in Lawson. It was taken up by Lord Hope in Ravat (see, eg, paragraph 29) and began to occupy centre stage in Fuller. It may be that the nature of the employment law right being asserted is also of significance. The enquiry before me is as to the territorial extent of the Employment Rights Act 1996. There is an analogous question of jurisdiction which arises under the Equality Act 2010. There may be a stronger case for supposing that Parliament intended peripatetic workers with an international role in a global business to be governed by the law which they had agreed to adopt as to their contract, and, hence, dismissal from contract, and therefore those rights which related centrally to the contract, as opposed to matters which more obviously involve the assertion of a fundamental civil wrong, in which society more generally has an interest, such as the elimination of discrimination. The Relevance of the Employment Contract 59. As noted by Lady Hale in Duncombe at paragraph 16; “The law of unfair dismissal does not form part of the contractual terms and conditions of employment.” The same point is made in Jeffery v British Council [2019] ICR at paragraph 61; “contractual rights and statutory rights are quite different creatures, but that does not mean that the choice of law governing the former may not be relevant to the question of the territorial scope of the latter.” In my view, the same can be said of law arising out of the Equality Act 2010. 60. The choice of governing law in the employment contract is nonetheless relevant, but not determinative. It is also the relevant that the choice of law in the contract may be given less weight where the Claimant had no opportunity to negotiate that term and it is a standard term which must be accepted and neither party specifically negotiated for that term. That point was made in Jeffery at paragraph 132: We are concerned with the different question of assessing the degree of connection that the contract has with Great Britain. I can see nothing wrong with treating a specifically-negotiated provision as having greater strength in that connection than the inclusion of a provision which neither of the parties had consciously sought to include and which appears only because of the use of a standard form which can be shown in other respects to be positively inapt. Different Conclusions for Different Respondents 61. I am also conscious, as Ms Darwin submits and I accept, that a finding that the Tribunal has territorial jurisdiction to consider the Claimant’s complaint against one respondent, does not automatically mean it has territorial jurisdiction to consider the Claimant’s complaint against another. That point was confirmed in Bamieh v Foreign and Commonwealth Office and others [2020] ICR 465 at paragraphs 70-72. Discussion and Decision 62. I start by noting and accepting Ms Ferber’s point that there are few cases considering territorial jurisdiction which reach the appellate Courts where the Claimants are persons living and working solely in Great Britain at the relevant time. I also generally accept her point that that is illustrative of the territorial pull (but not as a determinative factor) of living and working solely in Great Britain. Bhatti is an exception, and I note Ms Bhatti only lived in the UK for 3 months and worked for 1 day before she was dismissed, and perhaps tellingly, the Tribunal (upheld by the EAT) found it had territorial jurisdiction for the period in which she was living in the UK. Despite this observation, the relatively long list of authorities are in my view of assistance in determining the question of territorial jurisdiction in Mr Nazarenko’s case and the exercise I must undertake to so determine. 63. In my view a period of 2 years, 4 months, and 15 days (16 August 2021 to 31 December 2023) is a significant period of deployment to Great Britain. As Mr Nazarenko had a number of deployments outside the UK before his time working for the R1 in UK, and as it was anticipated that he would be working in the UK for at least 24 months before starting a new deployment in Uganda, I am willing to accept that Mr Nazarenko was an expatriate worker, with an employer based in Switzerland, but it is clear that the employer did have operations in the UK, with at least 40 staff working in the UK at the Feltham office as part of the TILENGA project. 64. Mr Nazarenko’s time living and working in the UK comfortably covers the periods over which he makes his complaints to this Tribunal (per paragraph 72 of his grounds of claim), namely 6 May 2022 to 31 December 2023 (“the relevant time”). Thus, in my view an important (for the purposes of the decision I have to make) finding I make is that for the entire relevant time, whilst Mr Nazarenko was an expatriate employee, he was living and working in Great Britain. 65. I do note that of that period of almost 2 ½ years, for a large part of it, from 1 October 2022 until he was dismissed on 31 December 2023 (1 year 2 months), Mr Nazarenko was at first, under the instruction of his employer searching for alternative roles within the company group (“on standby”) and thereafter, from 24 December 2022, he was ill and not working. As a result of these facts, and in particular a lengthy period of illness, taking into account the guidance of the Employment Appeal Tribunal in Hunt v United Airlines [2008] ICR 934 and YKK Europe Ltd v Heneghan [2010] IRLR 563 611, I am content that it is appropriate to undertake a broad factual enquiry. 66. In undertaking a broad factual enquiry, I take notice of the following relevant facts / findings I make: a) When Mr Nazarenko was deployed to the UK it was intended that he work there for at least 24 months (a not inconsiderable period), in the full knowledge that time period could (and likely would) be extended if the project in Uganda was delayed. b) For deployments, the Respondent conceptually siloed each deployment by geographical location because upon each deployment either a new employment contract was put in place or an addendum to the contract was added. This suggests, in my view, that it was intended there will be a discrete employment relationship grounded in and specific to the geographical location of the deployment. c) For the period of his deployment to the UK, Mr Nazarenko was assigned to a single place of work for the entire time he was deployed to the UK, which was the office in Feltham. d) The working arrangements in Feltham were such that during the engineering and procurement phases of the TILENGA project, his employer required him and at least 40 other employees to work out of the Feltham office as that was where the contractor for the project operated, over some of whom Mr Nazarenko had oversight. Mr Nazarenko had no choice of location. e) Mr Nazarenko lived in London for the entire period he was deployed to the UK and never left the UK in that time. He had no home outside of the UK. f) Mr Nazarenko family moved to live with him in London for the entire period he was deployed to the UK. He had no ties outside of the UK. g) His financial affairs were based in the UK, with him being paid into a UK bank account and, further, he was paying tax in the UK. h) Right up to the period of absence, I find, Mr Nazarenko had was ordinarily working and living in Great Britain and had a strong connection with Great Britain. i) After beig placed on standby and before he went on sick leave Mr Nazarenko worked with Ms Ponci and Mr Foucaud to try and identify new roles when on standby (as confirmed in his evidence and in a number of emails which formed part of the bundle), and which Ms Ponci accepted in oral evidence. He did this whilst continuing to reside in Great Britain with his family and there was no suggestion that he was to be redeployed in this time or required to undertake that search from anywhere other than Great Britain. This suggests a continuing employment relationship when Mr Nazaarenko was removed from the TILENGA project which continued to be based in Great Britain. j) Mr Nazarenko was absent from work on the grounds illness for the period 24 December 2022 to 31 December 2023, which was accepted by his employer and it took the decision to extend his contract accordingly (albeit it did so to comply with its obligations under Swiss law). The employment relationship continued over the absence period and that was acknowledged by the employer when it extended Mr Nazarenko’s contract. k) Mr Nazarenko stayed in regular contact with Ms Ponci (his HR contact) and Mr Foucaud (his talent developer) when he was on sick leave (which Ms Ponci confirmed in oral evidence), suggesting a continuing employment relationship over the period of absence. l) Thus, importantly, in my view, Mr Nazarenko retained and continued in the employment relationship in Great Britain whilst he was absent. 67. I should add that the actions and support provided by the employer during periods of illness absence and in supporting to identify new roles are not to be criticised. They are marks of a good employer. Those actions do, however, in my view, strengthen the argument that there was an ongoing employment relationship grounded in Great Britain and in employment law in Great Britain. 68. Having undertaken a broad enquiry of the facts, in my view, Mr Nazarenko had an established and continuing employment relationship in Great Britain for the entire period over which he was deployed by R1 in London, namely from 16 August 2021 to 31 December 2023. 69. Ultimately, in my view, that Mr Nazarenko was living and working in the UK for a lengthy period, and over which the employment relationship continued. This I consider is the magnetic factor in his case which draws me to the conclusion that the jurisdiction with which he had the strongest connection at the relevant time of the events which give rise to Mr Nazarenko’s complaints, was Great Britain (per Lawson, Ravat, and Bates van Winklehof). 70. Further, as reflected in my broader factual enquiry, my conclusion that Mr Nazarenko’s living and working solely in the Great Britain is the magnetic factor is supported by the wider arrangements in place and actions taken by the parties. It is clear, in my view, based upon my findings at paragraph 66 above that Mr Nazarenko lived and worked in Great Britain across the relevant time and indeed for a substantial period before the relevant time and that doing so was his only option for the period of deployment. He maintained an employee / employer relationship in Great Britain across the relevant time, including when ill or stood down. It was clearly anticipated that different contractual arrangements would be in place depending on the country to which Mr Nazarenko was deployed, suggesting an employment relationship rooted in that country for that period. 71. Another factor which draws towards the territorial pull of Great Britain is the rights which Mr Nazarenko seeks to invoke. He relies upon rights based in the 1996 Act and the 2010 Act, which in my view, being statutory rights which are fundamentally related to civil wrongs alleged to have taken place in Great Britain, weighs in favour of a determination that the stronger connection is with Great British law (per Olsen at paragraph 39). I do not say this would be a decisive factor, but it does weigh in favour. 72. I do note Ms Darwin’s submission that weight should be given to the fact that Mr Nazarenko’s contract suggested that the basis of the contractual agreement, the governing law, and for the determination of any disputes under the contract, Swiss law would be applicable. I accept that this point weighs against my determination, but in my view not significantly. In forming that view I am mindful of the guidance in Jeffery that whilst the employment contract is relevant, it is not determinative; and it is even less relevant if the choice of law term is merely part of a standard form contract, and neither party specifically negotiated for that term. That is the case in Mr Nazarenko’s case, as was confirmed by Mr Edouard and Ms Ponci in their oral evidence. 73. I also note Ms Darwin’s submission that Mr Nazarenko benefitted from the effects of Swiss law when his contract was extended as a result of his illness, despite having initially been dismissed on 30 December 2022. Whilst I accept that also weighs against my determination, I do not consider that point determinative or capable of being given significant weight, especially in light of Lord Hoffman’s observations at paragraph 41 of Lawson that an employee may be entitled to avail themselves of the protections of the law in two states. 74. Finally, I also note Ms Darwin’s submission that Mr Nazarenko’s tax returns referred to his role being a “secondment” and the UK a “temporary workplace”. However, I also note and accept Ms Nazarenko’s evidence that this was prepared by Deloitte with the specific purpose of optimising tax arrangements for Mr Nazarenko and his employer. He does not say he will live permanently in the UK and he agrees it was intended he would eventually move to Uganda. Again, whilst I accept as part of a broader factual enquiry the tax arrangements may suggest territorial pull away from Great Britain, it has in my view the same pull as the factual point that Mr Nazarneko did not intend to live permanently in the UK. I do not consider that point to have sufficient pull away from the factors I have above found have the greater magnetic effect. 75. I would observe, whilst noting that each case turns on its facts, that the above facts (see paragraph 66 above) suggest to me a much stronger, indeed sufficiently stronger connection with Great Britain than in number of the cases on which Ms Darwn relied. For example, in Olsen, the Claimant, like Mr Nazarenko, was employed by a non-UK company and his contract specified Swiss law as the operative law. He too had the benefit of optimised tax arrangements. However, in Olsen, the Claimant split his time between the UK and other location, only spending half of time working in the UK, and he maintained a home outside the UK. Due to his seniority in the business he was able to choose his location of work. The same can be said for the case of Fuller, where the claimant was employed by an American company and only spent half his working time in Great Britain, and maintained a home in the USA. These cases are in contrast to Mr Nazarenko, who was obliged for the relevant time to be working in the Feltham office and he did not leave the UK in that period. The facts in Fuller and Olsen, in my view, lead to a different conclusion and can be distinguished from the present case. 76. I am conscious that the discussion within my judgment so far has been principally focused on R1 and I note that, following Bamieh, that territorial jurisdiction against one respondent does not equate to territorial jurisdiction against all. However, in this case, I find that the actions of the other remaining respondents are inextricably linked to the actions which form the centre of Mr Nazarenko’s complaints. 77. I agree with Ms Ferber’s submission that the Claimant’s relationship with R4- R7 is closely connected with his relationship with R1. I agree that R1, R4 and R7 are all in the same group of companies and were all were directly involved, working together, in the Claimant’s work on the TILENGA project and his attempts to find a new role thereafter. In respect of the individual Respondents, R5 and R6, their direct connections with the Claimant (as his line manager and his line manager’s line manager) are, I agree, clearly described in the Grounds of Claim and their alleged actions, which are part of the subject matter of the Claimant’s claim, are the actions which arose out of their direct control over the Claimant’s employment. I agree with Ms Ferber that there is no real difference between the Tribunal’s territorial jurisdiction in respect of the Claimant’s employer, R1, and in respect of the Claimant’s line managers, R5 and R6. Conclusion 78. In conclusion, I am satisfied that and I find that the Employment Tribunal has territorial jurisdiction in relation to Mr Nazarenko’s complaints against each of the remaining respondents. Approved by: