Which laws apply: where an employee works or where the company's based?Posted in : Seamus Says - Employment Law Discussion on 5 January 2018
Q. "We are a Northern Ireland-based company with employees in the Republic of Ireland and England. Do we follow Northern Ireland law as we are based here, or do we need to follow the laws applicable to where the employees live in the republic and over in England?"
Keywords: Jurisdiction; Practice and Procedure
Seamus: Essentially, it's about where the employees are. We've covered this slightly before in another podcast, but essentially, it's about where they're conducting the work and what their contract provides for. There's lots of employees in Northern Ireland that work for English companies, but they don't work under English law, they work under Northern Irish law because they're based and they work here. That's the applicable jurisdiction.
Sometimes, you'll get employees that will be particularly in around sales rules. They will be employed by an English company. Their terms and conditions will be English. They will travel. They'll do sales in England. They'll do sales in Northern Ireland and in the south as well. But if the contract of primarily their work is English-based, their terms and conditions should be English-based. The trickiest one that I had was someone that worked on an oil rig in between Northern Ireland and Scotland and we were trying to figure out where exactly their jurisdiction was.
So we had to take a route and try and measure where they were. We were able to get it eventually and determined they were actually Scottish-based rather than Northern Irish-based. Jurisdictional points, sometimes I will see contracts that should be Northern Irish-based and should contain Northern Irish legislation. In fact, when you look at the contract, they're English and they're wrong. Really, that question comes down to whatever the employee said, the employee has to bring tribunal proceedings and you're wondering what's the correct jurisdiction? Do we bring it in our tribunal here in Northern Ireland?
Scott: Or Dublin.
Seamus: Or where it is. I did have a case a number of years ago where the case was brought in the wrong jurisdiction and our tribunal here held that it was out of time and they weren't able to bring the case going forward because it was out of time. So, it's an important point, but the bottom line is where you work and where the engagement of your employment takes place is where your employment jurisdiction is.
Scott: There are some on the margins or some who are sent abroad for a limited period of time or whatever, they may confuse it, but generally speaking, it's wherever you're normally working.
Seamus: The employment contract can afford mobility clauses and things like that for an employee to move to a different jurisdiction for a period of time, but the contract should be very clear about that.
Note: Legal-Island, alongside the Labour Relations Agency and Ciara Fulton, have put together a useful Comparative Employment Law: Northern Ireland, Ireland and Great Britain table to highlight the similarities and differences between the jurisdictions.
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