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Territoriality and Recognition

Territoriality issues seems to crop up all over employment law, probably a reflection of the increasingly international way in which businesses operate.  Trade union recognition is the latest eruption of territorial controversy.

In Netjets v CAC [2012] EWHC 2685 (Admin) the employer sought to overturn the ruling of the CAC that the statutory regime relating to recognition could be invoked by the pilots of a company operating business jets.

In support of its challenge to the CAC’s determination, John Bowers QC,  representing Netjets, pointed out that all of the pilots lived across  Europe, were paid in local currencies and were managed by individuals  based in Portugal.

It was also argued that the test propounded by Lord Hope in the most recent Supreme Court decision of Ravat required the CAC to undertake an exercise in comparison between English law and Portuguese law as the system of law with which the employees had “the stronger connection.”

Supperstone J rejected this reading of Ravat and ruled that no such comparison was required.  The question, the judge held, was whether the connection between the circumstances of the employment and Great Britain, and with British employment law, was sufficiently strong.

This is the second case in the past two weeks in which the it has been argued that a comparison is required.  In Clyde & Co v Bates Van Winkelhof, the same point was urged upon the Court of Appeal by Andrew Stafford QC in relation to claims under the Equality Act 2010.  Elias LJ rejected the argument on that occasion too.

Thus far, the point has been raised as an exercise in construing the somewhat Delphic words of Lord Hope in Ravat, the decision which was binding on the parties to each of these cases.  However, it may be argued with some conviction that an exercise in comparison has validity.  Perhaps the Supreme Court will have to re-visit the issue, for the third time in two years.
Andrew Stafford QC
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