FACTS The claimant, X, is a Muslim, of Moroccan origin, who is a French citizen. Y is her twin sister. They cannot be named because the tribunal made a restricted reporting order as this was a sex discrimination case. We restrict our coverage to X, who began employment with Tradition Securities and Futures (TSF) in October 2001 in Paris. She worked in Paris for three years until October 2004, when she transferred to work in TSF’s London office. She worked in London for a further two years until November 2006. In employment tribunal proceedings lodged in March and May 2007, X alleged that while working in both Paris and London she had been subject to sexual harassment, direct sex discrimination and victimisation.
As a preliminary issue, the employment tribunal had to consider if it had jurisdiction to determine X’s complaints in relation to the alleged discrimination suffered by her while working in Paris. At the relevant time, the Sex Discrimination Act provided protection for a woman “employed at an establishment in Great Britain”. Employment was regarded as being at an establishment in Great Britain unless the employee did her work wholly outside Great Britain.
DECISION The employment tribunal decided that it did have jurisdiction to hear X’s complaints about the alleged discrimination in Paris. The tribunal took the view that the conduct in Paris was potentially part of a continuing act of discrimination extending up to and including X’s period of employment in London. If there was a continuing act rather than a series of unconnected acts – which could only be decided after hearing full evidence – the tribunal believed it did have jurisdiction in relation to both the London and Paris allegations.
But the EAT overturned the tribunal’s decision. The concept of a continuing act is a statutory creation that relates to the time limit for bringing a claim and has no application to the issue of jurisdiction. The appropriate test was to consider whether, at the time of each act of alleged discrimination, X did her work wholly outside Great Britain. At the time of the Paris complaints, X had spent the whole of her employment in France. In relation to those allegations, therefore, she could not be regarded as being “employed at an establishment in Great Britain” and so the tribunal had no jurisdiction to consider those complaints. Evidence relating to the alleged discrimination in Paris may, however, be allowed by the tribunal as background material tending to support or weaken either side’s case as to what occurred later in London.
IMPLICATIONS This decision appears to give hope to employers that it may be possible to avoid UK litigation where alleged incidents of discrimination occur outside Great Britain. This, however, is too simplistic a view. It is increasingly common for patterns and countries of an employment relationship to change regularly and discrimination may be a one-off act in one place, or a number of one-off acts in different places, or may be an act extending over a period in one place or in a number of different places. In such varied circumstances, there are likely to be cases where a UK tribunal could legitimately claim jurisdiction in relation to discriminatory acts occurring overseas. As such, the best approach is for multi-national employers to ensure that in all countries in which their operations are located consistent equal opportunities standards are achieved.
Sandra Wallace, partner, DLA Piper