Former employment
A further question is how Section 5 applies to proceedings brought after the termination of the employment, for example, as a claim against a former employee. No case has held that the Section is inapplicable if there is no longer an employment relationship; and in many cases the claim will be brought by reason of the allegedly wrongful termination of the employment. In litigation with the employer, the former employee should continue to benefit from the jurisdictional rules of Section 5. An employer may be able to dismiss an employee, and the employee may have no real choice but to accept the fait accompli,[1] but this should not call into question the application of Section 5 in subsequent litigation. If the former employee sues the employer, maybe years after the termination of the employment, such as when it becomes clear, long after the event, that a condition such as mesothelioma was contracted during the employment and that the employer was at fault, the Section must in principle apply, though its operation may be awkward in cases in which the original employer has been merged or taken over and dissolved.
Suppose an employee changes his domicile after the termination of the employment: by retiring to Spain, for example. It may seem surprising that he should now have Spain as the Lugano State of his domicile for the purposes of Section 5, with the consequence that claims brought against him by his former employer would have to be brought in Spain, especially where this was not a domicile he ever had as employee. Yet this is the answer given by Article 20: it is not possible to interpret Article 20 as giving jurisdiction in claims against a former employee to the courts of the State in which he was domiciled on the cessation of the employment, even if this might be said to accord more closely with the broad scheme of the Section.
The relationship between the claim and the employment
Whether a matter relates to an individual contract of employment only if it is founded on the relevant contract has been debated, but the answer is clear. Proceedings on a claim formulated by the employee as one in tort committed within the contractual employment relationship - based on an allegation that the employer has breached a statutory duty to maintain a safe system of work, for example - must fall within
Section 5.[2] By the same token, claims by the employer which seek to enforce fiduciary duties, or to restrain the misuse of confidential information by an employee of former employee fall within Section 5. Where it is alleged that an employee has stolen property from the employer, or from another employee within the workplace, and the employer brings legal proceedings which complain of the tort by means of a pleading which may be silent as to the existence of the employment relationship within which the tort was committed, Section 5 will apply. The contrary proposition, that the employer should be able to annul the jurisdictional protection offered by Section 5 by accusing the employee of being a thief or other kind of tortfeasor, is neither sensible nor the law. Indeed, the proposition that the matter does not relate to a contract of employment if the employer can plead out its claim without relying on the contract of employment would echo the weird way in which the common law used to, but does no longer, deal with illegality in contracts. It has no place in the scheme of the Convention.
All this follows from the judgment in Holterman, the relevant extract of which was set out above, that if the claim against the employee fell within the scope of Section 5, which means that it related to the contact of employment, the jurisdictional provisions of Section 5 applied to the exclusion of other possibilities; the provisions of Section 5 were, as has been said over and again, ‘specific but exhaustive’. The simple question is whether the complaint could have been put as a breach of the contract of employment, not whether it has been so framed. The answer follows accordingly. In this respect it is entirely aligned with the reasoning of the Court in Brogsitter v Fabrication de Montres Normandes EURL,™ and entirely in keeping with the idea that Section 5 is designed to protect the employee in litigation.
This is not to say that there will not be difficulties. In Arcadia Petroleum Ltd v Bosworth, the Court of Appeal refused to read Holterman as meaning what it said, appearing to accept the argument that if the jus actionis relied on by the employer could be framed independently of the contract of employment, the claim to enforce it was not within Section 5: to put it crudely, an alleged thief may be sued as a thief, whether or not he is an employee. The court was plainly wrong. But suppose a claim for personal injury by an employee who is knocked off his bicycle by the works bus on the road leading away from the factory? Would it make any difference whether the bus driver was an employee or an independent contractor? What if he was injured while on the works outing? Would it make any difference if the assailant was a fellow employee? The factual variations are, of course, endless.
An alternative argument, but which is no more satisfactory, would seek to draw a distinction between cases in which the employee is acting as employee (when Section 5 would apply) and those in which he is not (when it would not). Something similar animates the principle of vicarious liability for the torts of an employee, in which, perhaps, when the employee ‘has taken off his uniform’ he is, for certain purposes, no longer treated as acting as an employee. The common law in such cases draws the conclusion that the employer is no longer vicariously liable, but domestic case law shows how complicated this line of division can be.[3] Any attempt to replicate this kind of distinction as the fact which determines the scope of Section 5 of Chapter II will give rise to uncertainty which, at the jurisdictional stage of proceedings, would be undesirable.
There are bound to be cases for which the plain, unvarnished language of Article 18 does not work in a wholly predictable way. For the present, however, if the allegation could be presented as a breach of contract by the employee or employer, that should bring it within Section 5 of Title II, no matter how the claim is actually formulated; where this is not so, it will be very much more difficult to bring the proceedings within Section 5.
- [1] Even so, it is hard to believe that, say, a contract by which an employer (still less a separate company, at the request of the employer) leases a car to an employee, as a perk of the job, is a contract of individual employment, even if its purpose is to encourage the employee to stay. 2 Cf Société Générale. London Branch v Geys [2012] UKSC 63, [2013] 1 AC 523. 3 Article 18. But the courts for the Lugano State of the employee’s domicile do not, as such, have jurisdiction in proceedings brought by the employee under Art. 19.
- [2] Either because this is obviously the correct interpretation of Art. 18, or by analogy and application of the reasoning in (the Section 4 case of) C-500/18 AU v Reliantco Investments £/dEU:C:2020:264. 2 Bowmakers Ltd v Barnet Instruments £/
- [3] WM Morrisons Supermarkets Pic v Various Claimants [2020] UK.SC 12, [2020] 2 WLR 960, which brings order, at least for now, to a number of unruly decisions. 2 C-l 11/09 Ceskapodnikatelskäpojistovna as. Vienna Insurance Group v Bilas [2010] ECR 1-4545. 3 Regulation 1215/2012, Art. 26(2). 4 Article 20(1). 5 Article 18(1). 6 Article 19(l)(a). 7 Article 19(1 )(b)(i).
