The competent jurisdiction for international workers: how to find the place where the employee habitually works.

The concept of the “place where the employee habitually works” is an essential concept for determining which employment law is to be applied and which jurisdiction is competent. According to a recent case of the Belgian Supreme Court (Cour de Cassation), this concept should not be interpreted in a purely quantitative way, as in the place where the employee works the majority of his time.

The competent court in the EU is regulated by Brussels Ibis Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. However, the facts of the case date from before the entry into force of this recast Regulation and therefore the judges had to take into account the previous Brussels I Regulation (EC) No 44/2001 of 22 December 2000. Both Regulations provide that an employer can be sued in the country where he is domiciled, or in another Member State if the employee habitually carries out his work there, or in the courts of the last place where he habitually carried out his work, or, if the employee does not habitually carry out his work in the same country, in the courts of the place where the business which engaged the employee is or was situated.

The case at hand concerns a Belgian manager of a British pharmaceutical company established in the United Kingdom. His last employment contract of approximately one year was for a position as vice-president of the company under a UK employment contract. According to the contract, the position is based at the company's headquarters in London. Before this position, he was seconded to Belgium during some years. Following his dismissal, the manager claimed unpaid compensation from the parent company in the UK and from the Belgian branch before the Belgian labour courts.

Both at first instance and on appeal, the Belgian courts declined jurisdiction. In order to ascertain its jurisdiction, the Brussels labour court of appeal looked at the interpretation of "the place where the employee habitually carries out his work" as "the place where or from which the employee actually carries out the essential part of his activities with regard to his employer" in the light of the case law of the Court of Justice of the EU (CJEU 14 September 2017, C-168/16 and C169/16, § 59). In this light, the labour court of appeal considers this to be a purely quantitative criterion by stating, inter alia, the following:

• A secondment to Belgium from January 2007 to 2012, followed by the affectation to the London office from 2012 to 2013, does not affect his usual place of work.
• The employee's place of residence (in Belgium) is purely private and does not affect his work.
• The fact that he has been given an office in Belgium says nothing about his working hours in Belgium.
• According to his A1 statements (social security), in 2012 (during his last job) he worked 30% of his time in Belgium, 20% in the UK and 50% in other countries. In 2013, he worked just more from the UK and slightly less from Belgium.

As it cannot be deduced from these and other cited elements that the employee worked most of his time from Belgium, the labour court of appeal declares itself not competent to decide the merits of the case.

However, the Supreme Court opposes this purely quantitative approach. The labour court of appeal wrongly limited itself to a mere comparison of the working time spent by the employee in the different countries and wrongly excluded as criteria other indications showing his link with Belgium. Therefore, the Supreme Court has not upheld the decision of the Brussels labour court of appeal.

Take aways:

• In case of highly mobile international employees, especially managers, make sure the applicable law and chosen jurisdiction is in line with the provisions of Rome I Regulation (applicable employment law) and the Brussels I Regulation (jurisdiction)
• Even if the working time spent in certain countries does not immediately make it clear which is the habitual place of work, other elements than a purely quantitative one can be used as a criterion to establish the habitual place of work.

Source: Cass. 6 May 2022, S.21.0038.F, www.juportal.be