Employment Tribunal Competence: When Your Contract Is Performed in Several Countries

You are an employee in Tinqueux, but your employer regularly sends you on assignment abroad. Or, like this Bangladeshi employed by an international bank, you have worked in Spain and then in France. Is your contract governed by French law? Can you bring a claim before the French employment tribunal if you are dismissed? The question is more common than one might think: every year, thousands of mobile employees wonder which court has jurisdiction. The decision of the Court of Cassation of 13 January 1998 (n° 93-44.339) provides a clear answer, based on the Brussels Convention of 1968. Explanations.

The facts: a story that happens every day

Mr Z, a Bangladeshi national, is employed by BCCI Overseas France, an international bank. He first works in Spain, then from 1985 at the company's Paris headquarters. In November 1990, he is dismissed for gross misconduct. Considering himself unfairly treated, he brings a claim before the Paris employment tribunal to contest his dismissal and claim damages. However, the employer raises a plea of lack of jurisdiction: according to him, since Mr Z worked in several countries, the dispute should fall under Spanish courts or the place of the registered office, which is not in Paris but abroad.

The Paris employment tribunal declares itself competent, and the court of appeal confirms. The case goes up to the Court of Cassation, which must decide a question of private international law: which court has jurisdiction for an employee whose habitual place of work is not unique? The Brussels Convention of 27 September 1968, which governs judicial jurisdiction within the European Union, sets out specific rules. The issue is simple: if the employee cannot bring a claim before a French court, he may have to litigate abroad, at considerable cost and difficulty.

The reasoning of the court — analysed

The Court of Cassation dismisses the employer's appeal and confirms the jurisdiction of the Paris employment tribunal. Its reasoning is based on two key texts.

First, Article 2 of the Brussels Convention lays down the general principle: 'Persons domiciled in the territory of a Contracting State shall, whatever their nationality, be sued in the courts of that State.' In other words, an employer domiciled in France (like BCCI Overseas France) can be sued before the French courts, even if the employee is foreign.

Second, Article 6-1 of the same Convention allows a defendant to be sued before the court of the domicile of one of the co-defendants in the case of multiple defendants. However, here there was only one defendant. The Court mainly uses Article 5-1, which provides for an alternative jurisdiction for the place of performance of the employment contract. Mr Z's contract was mainly performed in Paris from 1985. It does not matter that he previously worked in Spain: the habitual place of work at the time of dismissal was Paris. The Court adds that the fact that the employee was successively assigned to two countries does not change anything, as long as his last effective place of work is in France.

This decision is not a reversal: it confirms consistent case law. French judges protect the employee by allowing him to bring a claim before the court of the place where he habitually performs his work, even if the contract mentions another country. The employer's argument, which attempted to refer the employee to a foreign court, was rejected in the name of protecting the 'weaker party' in the contractual relationship.

What this means for you — in practice

If you are an employee in Épernay, and your employer regularly sends you abroad, you can bring a claim before the employment tribunal of Épernay (or Reims) for any dispute relating to your contract, provided your habitual place of work is there. This is a valuable safeguard: imagine you are dismissed after 10 years in a company based in Tinqueux, but your contract states that the applicable law is Spanish law. Without this case law, you would have to litigate in Spain, with legal and travel costs. Here, the Court of Cassation allows you to stay in France.

For the employer, the lesson is the opposite: he cannot impose a foreign court on an employee who habitually works in France. A contract clause designating a foreign court would be disregarded if it contradicts the actual place of performance of the work. In practice, if you run a SME in Reims and hire a travelling salesperson in Europe, the competent court will be that of Reims as long as their main point of attachment is located there.

A concrete example: did Mr Z obtain damages? The decision does not say, as it only concerns jurisdiction. But if you are in his situation, you can claim up to 12 months' salary for dismissal without real and serious cause (Macron scale). On average, compensation for unfair dismissal in a bank can reach €20,000 to €50,000. Enough to justify fighting on jurisdiction.

Four tips to avoid this type of dispute

• Check your employment contract: if a clause designates a foreign court, know that it can be challenged if your habitual place of work is in France. Keep all your payslips and assignment contracts to prove your connection.
• If you have international mobility, keep a log of your travels: note the dates and places where you worked. This will serve as evidence to determine your habitual place of work.
• If you are dismissed, bring a claim before the employment tribunal within 12 months: the limitation period runs from the notification of dismissal. Do not delay, especially if you first need to contest jurisdiction.
• Consult a lawyer specialising in international employment law: the rules of jurisdiction are complex. An initial analysis can save you from wasting time before an incompetent court.

Further reading: related case law and developments

This decision is part of a protective line. Already in 1993, the Court of Cassation had held (judgment 'Soc. 10 November 1993') that the habitual place of performance of the contract takes precedence over the employer's domicile. More recently, in 2015, the CJEU confirmed that the employee can sue before the court of the place where he performs the majority of his tasks (case 'Koelzsch').

The trend is therefore clear: judges favour the protection of the employee, even in an international context. For the future, the Brussels I Regulation (recast) (2012) has strengthened these rules, by prohibiting jurisdiction clauses in employment contracts. In other words, an employer can no longer impose a foreign court on an employee, unless the employee expressly agrees after the dispute has arisen.

What you absolutely must remember

FAQ:

• Can I bring a claim before the French employment tribunal if my contract is governed by Spanish law? Yes, if your habitual place of work is in France. The applicable law is separate from jurisdictional competence.
• What if my employer contests jurisdiction? Respond by providing evidence of your habitual place of work (payslips, contracts, statements). The case law is in your favour.
• What time limits apply? You have 12 months from dismissal to bring a claim before the employment tribunal, and 2 years for other wage claims.
• How much does a procedure to contest jurisdiction cost? Legal fees vary: expect €1,500 to €3,000 for a first instance, but legal aid may be available if your income is modest.

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