Prähl v Lapinski: Gaps and Uncertainties in the Regulation of Jurisdiction in Employment Matters in Post-Brexit UK

Following Brexit, the Brussels I bis Regulation ceased to apply in the UK. The regulation’s rules of jurisdiction in consumer and employment matters (Chapter II, Sections 4 and 5, Articles 17-23) were replaced by Sections 15A-15E of the Civil Jurisdiction and Judgments Act 1982.

The Explanatory Memorandum to the amendments to the 1982 Act introducing these provisions explains that their purpose was to ‘continue the particular protections offered to consumers and employees domiciled in the UK by the Brussels Ia Regulation’ (para 2.6) and that, since these protections ‘are not available in the common law and statutory provision of England and Wales and Northern Ireland, and only to a more limited extent in Scotland, apart from the Brussels regime, and so the Government has chosen to retain them’ (para 7.1).

The Brussels I bis protections, in a nutshell, consist of:

(1) limiting the number of jurisdictional bases on which the stronger party (supplier/seller/employer) can rely if it wants to sue the weaker party (consumer/employee) – the weaker party can usually only be sued in their domicile;

(2) enabling the weaker party to rely on multiple jurisdictional bases if they want to sue the stronger party, potentially opening multiple forums from which to choose when commencing proceedings;

(3) restraining party autonomy;

(4) finally, while Brussels I bis was in force in the UK, the doctrine of forum non conveniens did not apply.

Post-Brexit, several questions arise. Do Sections 15A-15E of the 1982 Act lay down all jurisdictional bases available in covered consumer and employment disputes, or is there any space left for the operation of traditional jurisdictional bases? Should the concepts used in the 1982 Act be interpreted in light of EU law or domestic law? Does forum non conveniens have any role to play?

Some of these questions were addressed by the Employment Appeal Tribunal (Auerbach J) on 12 June 2025 in Prähl v Lapinski [2025] EAT 77.

Facts

Mr Lapinski was formerly a member of a limited liability partnership. He commenced proceedings against the partnership and several individual defendants, as the employees or agents of the partnership, under the Equality Act 2010, alleging discrimination on the basis of a disability.

The parties agreed that the claim was of a nature that employment tribunals were empowered to consider under Sections 2 and 3 of the  Employment Tribunals Act 1996 (so-called ‘cause of action jurisdiction’). They further agreed that the claim fell within the territorial scope of the 2010 Act (so-called ‘territorial jurisdiction’).

However, some defendants were domiciled and present in Sweden. This raised the question of whether the tribunal had ‘international jurisdiction’ over those defendants. The defendants argued that the claimant ought to have obtained permission to serve them out of the jurisdiction (a traditional common law requirement for absent defendants) and that, in any event, the tribunal was forum non conveniens (a traditional common law power allowing English courts to refuse to exercise jurisdiction).

Judgment

The tribunal decided the case in favour of the claimant.

First, it held that, when Sections 15A-15E of the 1982 Act apply and point to the jurisdiction of an English tribunal, permission to serve out is not required ([68]).

Second, although the claimant did not have a contract of employment with the partnership in the sense of domestic English law, the tribunal held that this was an employment claim for the purposes of the 1982 Act. To reach this conclusion, the tribunal relied on the wide definition of ‘employee’, ‘employer’ and ‘matters relating to a contract of employment’ in the context of Brussels I bis ([70]-[74]).

Third, although the rule of jurisdiction over co-defendants in Article 8(1) of Brussels I bis is not specifically included in Sections 15A-15E of the 1982 Act, the tribunal held that the claimant should be able to rely on this jurisdictional basis, as his position could not be worse after Brexit, given the purpose of these provisions ([67], [76]-[79]).

Fourth, the tribunal held that, when Sections 15A-15E of the 1982 Act apply, forum non conveniens does not ([68]).

Comment

While the purpose of Sections 15A-15E of the 1982 Act is clear, it has not been implemented in the best possible way. Prähl v Lapinski reveals several shortcomings.

It is unclear whether Sections 15A-15E of the 1982 Act constitute a complete and self-contained ‘code’ of jurisdictional rules when a case falls within their scope. Under Brussels I bis, the weaker party is precluded from invoking domestic jurisdictional rules, even if they would be better-off under those rules. This principle applies equally to EU-domiciled (Case C‑462/06 Glaxosmithkline v Rouard EU:C:2008:299) and non-EU-domiciled defendants (Case C-604/20 ROI Land Investments Ltd v FD ECLI:EU:C:2022:807). With this in mind, the decision that, when Sections 15A-15E of the 1982 Act apply and point to the jurisdiction of an English tribunal, permission to serve out is not required is correct.

Similarly, the interpretation of Sections 15A-15E of the 1982 Act by with regard to concepts developed by the Court of Justice of the EU before Brexit is required by Section 15E(2). Therefore, the tribunal’s wide interpretation of the concepts of ‘employee’, ‘employer’ and ‘matters relating to a contract of employment’ is also correct.

However, the tribunal’s decisions regarding the availability of a rule of jurisdiction over co-defendants, despite Article 8(1) of Brussels I bis not being specifically included in Sections 15A-15E of the 1982 Act, and the unavailability of forum non conveniens are not beyond reproach.

It may be speculated that the reason why Article 8(1) of Brussels I bis is not specifically included in Sections 15A-15E of the 1982 Act is because its application in employment disputes within the EU is preserved by Article 20(1) of the regulation and not Article 21, which lists all other available jurisdictional bases when an employee sues the employer, while Section 15C(2), which sets out available jurisdictional bases when an employee sues the employer in the UK, only replicates the bases found in Article 21 of the regulation. Nevertheless, invoking a jurisdictional basis that is not included in the 1982 Act, requires more justification than merely noting its availability before Brexit and the reason behind the amendments to the 1982 Act. Ultimately, the tribunal’s decision on this point seems to be obiter, since the employee’s habitual place of work was in England, so there was arguably no need to rely on the rule of jurisdiction over co-defendants. This significantly weakens the persuasiveness of the tribunal’s decision on this point.

Finally, the tribunal failed to mention that the 1982 Act contains the following provision in Section 49 (‘Saving for powers to stay, sist, strike out or dismiss proceedings’):

Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with Hague Convention.

While the availability of forum non conveniens would undermine the purpose of Sections 15A-15E, the tribunal’s policy-based argument can hardly override what appears to be a clear statutory instruction in Section 49.