“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).”
“We confirm that, other than in relation to our client’s application for a sealing order or in relation to your client’s motion to dismiss, our client will undertake not to further prosecute the New York proceedings between now and the combined hearing of the Jurisdiction Application and the Anti-Suit Application.”
“As observed by the Advocate General in point 85 of his opinion, as regards work relationships in the transport sector, the court, in Koelzsch, para 49 and Voogsgeerd[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.”
“39. The position we are in is as follows. The New York court has rejected the challenge to its jurisdiction because of the clear and unambiguous terms of the exclusive New York jurisdiction clause in the bonus agreements. Had we not been concerned with the contracts of employment we should have upheld such a clause as well. But, as it is, our law says that we cannot give effect to it. The claimants can only be sued here. What shall we do? The only choice it seems to me is between an anti-suit injunction or nothing. 40. An anti-suit injunction is not a remedy to be dispensed lightly, particularly where the defendants sought to be restrained have brought proceedings in courts of high repute in a friendly foreign state. The injunction of course is directed at the litigating party and not the court. The premise for the remedy is that this party should not be litigating in that court and so the principles of comity are not offended by granting an injunction which does no more than require that party to comply with his legal obligations and ensure for the claimant that he does so. Although this is the correct analysis, one can understand why not everyone would see the situation in quite this way which is why the court should always be cautious before granting such relief. 41. We were referred to various English cases which have dealt with these problems in the context of commercial disputes where injunctions have been claimed on the basis of an exclusive jurisdiction clause or forum conveniens. But no case was cited to us where the exclusive jurisdiction of the English court was mandated by statute. … 42. … 43. Doing nothing is not an option in my judgment. The New York court cannot give effect to the Regulation and has already decided in accordance with New York law on conventional grounds that it has exclusive jurisdiction. The only way to give effect to the English claimants' statutory rights is to restrain those proceedings. A multinational business must expect to be subject to the employment laws applicable to those they employ in different jurisdictions. Those employed to work in the MM group in London who are domiciled here are entitled to be sued only in the English courts and to be protected if that right is not respected. There is nothing to prevent MMC and GC or any other company in the MM group from enforcing their rights under the bonus agreements here. 44. For these reasons I think we should allow this appeal and grant an anti-suit injunction.”
“…in a case falling within Section 5 of the [Brussels I Recast] Regulation an anti-suit injunction should ordinarily be granted to restrain an employer from bringing proceedings outside the Member States in order to protect the employee’s rights.”
“In my view, there are powerful arguments that ought perhaps to have required closer attention to the balance between the enforcement by anti-suit injunction of a statutory domestic or European employment right on the one hand, and the need, on the other hand, to give effect to the freely agreed exclusive jurisdiction clause conflicting with that statutory right. What if, for example, an employee in Mr Petter's position had expressly agreed that he would not take advantage of the protections in the Regulation when signing up to the Stock Plan and the RSU agreements? Even in our situation, it seems to me that the judge's solution of allowing the two pieces of litigation to continue had some merit. At least, it did not put EMC on the horns of an impossible dilemma between either having to give up its undoubted contractual rights to proceed in Massachusetts or to be in contempt of an English court order. It is not, I think a conclusive answer to this problem to say, as Tuckey LJ did, that the overseas corporation has chosen to employ people in London where the Regulation gives them certain rights, because the employees in question have agreed to be bound by a contract for their own benefit that is in conflict with those rights. The decision is, therefore, in my judgment, rather more nuanced and fact dependent than Samengo-Turner allows.”
“In my view, s.5 of the Regulation reflects and seeks to give expression to a clear public policy to protect employees in relation to litigation relating to their employment, because they are taken to be in a weaker negotiating position by reason of their economic and social status as against employers. The decision in Samengo-Turner gives effect to this public policy, as reflected in the Regulation. In my opinion, it was legitimate for the court in Samengo-Turner to do this.”
“The Explanatory Memorandum says in no fewer than six places that the instrument is intended to 'adopt', 'retain' or 'restate' the protections afforded to consumers (and employees) in the Recast Regulation… It is clear beyond dispute that the intention expressed in the Explanatory Memorandum was one of restatement and retention in domestic law of the consumer protection in the Recast Regulation, following withdrawal…”
“An individual is domiciled in the United Kingdom if and only if— (a) he is resident in the United Kingdom; and (b) the nature and circumstances of this residence indicate that he has a substantial connection with the United Kingdom.”
“I do not think we can assess how wide the impact might be, but I doubt that this case will be a precedent for many others. Even senior managers are usually in a relationship of subordination to their employers. The Appellants had (or, to be more precise, the Respondents have established a good arguable case that they had) an unusually free hand in running the Arcadia Group as their own private fiefdom to the extent of writing their own contracts of employment. I do not think the Judge's Judgment means that any senior manager, or even director, who is given a degree of autonomy as to how he does his job is outside the protection of Art 18(1) ...”