Under
the sex and race discrimination legislation, an employee can claim
discrimination "unless the employee does his work wholly outside Great
Britain", according to a new tribunal ruling.
The
Employment Appeals Tribunal (EAT) handed down its decision in the case of
Saggar (& ors.) v Ministry of Defence, which concerned the position of
three army officers under discrimination law, who were based outside the UK.
Chris
Davis from Halliwell Landau law firm, said the case would help multinational
employers anticipate where discrimination claims would be coming from.
The
court considered three questions:
1. What is the time at which whether the
Applicant works outside Great Britain to be judged?
The
tribunal held that you need to look at the time of the allegations of
discrimination.
There is no discrimination at an
establishment in the UK if the person being discriminated against (abroad) is
either someone who used to work in the UK, but has not done so for many years,
or is employed under a contract that means they might be employed in the UK,
but in fact they never have been
2. What is work?
In
one of the cases, the overseas officer attended training courses in the UK
during the year. If this was ‘work’,
then she did not do her work ‘wholly’ outside the UK, so the tribunal would
have had jurisdiction to hear her complaints.
The
EAT held that attendance at a training course may be work (and, on the facts in
this case, was work) – the important factors being the contractual position,
the content of the work, its duration and regularity
3. Is there a de minimis exception? (ie so
small that’s it’s not going to make any difference in practice)
Yes. One of the cases involved an army chaplain
who attended a funeral in the UK (which was held to be ‘work’), while based in
Germany. The EAT held that a de minimis
principle applied, and that "it would offend against the de minimis
principle to found jurisdiction on a one-day visit"
(Thanks
to Daniel Barnett, 1 Temple Gardens, for case clarification)
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