A tribunal or court can only hear a whistleblowing claim against a British employer from someone working outside Great Britain if there is a stronger connection with Great Britain and British employment law than with the country of work. In Hexagon Sociedad Anonima v Hepburn the Scottish EAT had to decide whether a clause in the employee's contract giving exclusive jurisdiction to the Scottish Courts and Tribunals was relevant to that assessment. It found that it was.
Mr Hepburn worked offshore in the Gulf of Guinea and was paid in US dollars. However, he was a UK citizen and his contract of employment stated that his home location was Scotland. His contract was governed by the laws of Scotland and gave exclusive jurisdiction to the Scottish Courts and Tribunals. When he was dismissed he returned to Scotland and brought a claim of automatic unfair dismissal. The tribunal found that it had jurisdiction to hear his claim on the basis of the stronger connection test.
The EAT upheld the tribunal's decision. The tribunal had concluded that the exclusive jurisdiction clause was a "powerful factor" in favour of a finding of a sufficiently strong connection and the employee had given evidence that he took comfort from the clause. It was correct to rely on the proposition that a term that invokes the jurisdiction of the UK courts creates an expectation that the employer will honour it and that this is relevant to whether there is a sufficiently strong connection between the claim and the UK. In the circumstances the clause demonstrated that the parties to the agreement thought that the employee had a strong connection with Scotland and although this was not determinative, when taken with other factors, the tribunal was correct to conclude that there was a sufficiently strong connection with British employment law for the claim to proceed.
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