Working from home and remotely has thrown up a large number of issues for employers, including on this island in particular, where employees may easily split their working time across Northern Ireland and the Republic of Ireland. This can lead to confusion over which law applies if the employer is based in one territory and the employee works in the other.

The Rome Convention

Where the employee’s contract of employment states that a certain law applies e.g. ROI or NI, the Rome Convention upholds this choice of law but the employee will be entitled to rely on any key employment laws (mandatory rules) of the country in which they work. This will apply where those laws are more beneficial to the employee and they ‘habitually’ work in that country (i.e. do the majority of their work there) or they can establish that their contracts as a whole are more closely connected to that country. Mandatory rules are likely to include most statutory employment rights. The benefits of the two territories are often closely aligned so it may not always be obvious which set of rights is more favourable. There is a potential disadvantage to dealing with an employment claim outside the jurisdiction the employer is familiar with.

Where the employee does not habitually work in NI, they may be able to rely on NI statutory rights/mandatory laws where their contract as a whole is more ‘closely connected’ with NI than ROI. Courts can make a wide-ranging enquiry into several factors, including where the employer and/or employee are based, how the employee is paid, how they are managed and where they are managed from.

Territorial Scope

Separate to the position under the Rome Convention, if an employee works partly outside NI and they are relying on an EU-derived right or can establish a sufficiently strong connection to NI, they can rely on certain NI statutory rights (similar but not the same test as the ‘close connection’ test under the Rome Convention). The relevant factors have been established by case law and include the list below. It is a question of degree in each case.

• Where the employee was recruited.
• Where the work is done.
• Where the employee is based.
• The parties' choice of law. 
• What has been said to the employee as to which system of law will apply.
• If the employee has been told that their employment is subject to UK legislation.
• Where the employment relationship has been managed from an operational or HR perspective.
• Where the employee's home is and whether they have accommodation in NI.
• Where the employee gets paid and in what currency.
• Whether the employee is entitled to a Civil Service Pension.
• Where the employee pays tax and makes social security contributions and any steps the employee has taken to influence where they do so.
• Where the employer is registered, or the business is based.
• The nature of the employer, and any connections with UK/ NI or representing it abroad.

Jurisdiction

Employment tribunals in Northern Ireland have jurisdiction to hear claims in any of the following circumstances (Rule 9(2) of The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020):

• a respondent resides or carries on business in Northern Ireland;
• an act or omission complained of took place in Northern Ireland;
• the claim relates to a contract under which work is or has been performed partly in Northern Ireland; or
• the tribunal has jurisdiction to determine the claim by virtue of a connection with Northern Ireland.

It is likely that the tribunals would initially accept the claim if the work is ‘performed partly in Northern Ireland’, if there is an act which takes place in NI or living and working remotely is considered a connection. It will then be up to the employee to establish that either there is a sufficiently close connection, or the right they are relying on is a directly effective right derived from EU Treaties. Employers may consider asking the tribunal for a preliminary hearing on the jurisdiction point.

Conclusion

In the usual way, clarity and record keeping should at least prepare employers to deal with any choice of law points that arise. Employers are advised to review their contractual arrangements, assess which law is likely to apply and update contracts to reflect any changes

'Comparative Employment Law: Northern Ireland, Ireland and Great Britain' can be accessed via the following link: https://www.legal-island.com/articles/uk/features/comparative-employment-law/2022/comparative-employment-law-northern-ireland-ireland-and-great-britain/