The EAT case of Ms Denise Simpson v Intralinks possibly stands as the first jurisdictional claim to be determined in respect of sex discrimination and/or equal pay where a choice of law clause exists in the contract. Ms Simpson’s contract of employment stated that applicable law would be German law and the place of jurisdiction Frankfurt (where she lived and worked). She brought claims of sex discrimination and equal pay in the UK and the ET held, on the face of the contract, that they did not have jurisdiction to hear such claims.
The EAT disagreed. They determined that German law was the applicable law. However, nothing, they said, in the Rome Convention restricts the application of mandatory rules of law. The provisions of the SDA and EqPA (which are mandatory rules) are therefore applicable notwithstanding that the applicable law generally is German. As jurisdiction in respect of the SDA and EqPA is applicable without jurisdictional limit and the provision as to applicable law does not restrict the territorial scope of those provisions, then a UK court has to apply those provisions.
Morale of the tale – if you see a clause referencing foreign law in a contract, don’t assume that UK law cannot apply. It can and, in this case, it did!