- the legislation is primarily a UK concept (such as unfair dismissal), in which case the Serco analysis applies; or,
- the legislation derives from EU legislation with direct effect, such as (in this case) the Working Time Regulations 1998.
And on a frivolous note, it's time to launch the 2008 Silliest Names competition. This case starts the ball rolling with the fabulously named 'Dr Frankenstein' (see para. 10 of the judgment). All entries welcome...
Anyway, back to the law. The EAT stated that where UK legislation derives from EU legislation which has direct effect, the UK approach to territorial jurisdiction should be read subject to the assumption that the courts should strive to give effect to EU legislation. In other words, where a claim is based on EU legislation, a weaker link with the UK may suffice to bring the case within the jurisdiction of tribunals.
The facts of this case concerned a German lorry driver who worked throughout mainland Europe (but never the UK). However, his contract of employment was with a company registered in England and his contract provided that English law applied. The EAT held that, applying Serco, he was not able to bring claims for unfair dismissal or an unauthorised deduction from wages. However, he would be permitted to proceed with his claim under the Working Time Regulations, as UK courts must interpret legislation in a way which gives effect to EU obligations and nothing within the Working Time Regulations expressly prohibited this case going forward (see para. 57).
[Thanks to Naomi Ling of CMS Cameron McKenna for telling me about this case]