Summary

The Court of Appeal concludes that a person who has not worked in the UK for 7 years can still bring a race discrimination claim here if he worked in the UK for the same employer before he left.

Facts

Lieutenant Colonel Saggar was an Army Officer. He served for 16 years until 1998 in the UK. In 1998 he was posted to Cyprus for 3 years.

Lt. Col. Saggar brought a Tribunal claim in 2000 alleging race discrimination against him in Cyprus between September 1998 and December 1999. He retired in January 2002. The MoD raised the issue of whether or not the Tribunal had jurisdiction to hear the claim under the Race Relations Act 1976 (“the Act”).

Relevant Law

Section 8(1) of the Act provided that “employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly or mainly outside Great Britain”.

Tribunal and Employment Appeal Tribunal decisions

The Employment Tribunal ruled that it had no jurisdiction to hear the complaint on the basis that, at all material times, Lt. Col. Saggar was working wholly outside Great Britain. He was not employed, therefore, at an establishment in Great Britain within the meaning of the relevant sections of the Act.

The EAT dismissed Lt. Col. Saggar’s appeal. The EAT decided that it was bound by the decision of the Court of Appeal in the case of Carver v. Saudi Arabian Airlines [1999]. It held that according to the Carver decision, for the purposes of establishing whether or not a Tribunal has jurisdiction to hear a claim, it is necessary to consider whether, at the time of the alleged discrimination, the Claimant was wholly or mainly working in Great Britain. On this basis, the EAT held that at the time of the alleged discrimination, Lt. Col. Saggar did his work wholly in Cyprus.

Court of Appeal decision

Lt. Col. Saggar appealed to the Court of Appeal. The issue to be determined was: what was the relevant period of time for the Tribunal to take into account in establishing whether or not it had jurisdiction to hear a complaint? Should it be the period to which the alleged acts of discrimination relate or should it be a longer period of the employment?

The Court of Appeal decided that the relevant period for determining whether a Claimant did his work wholly or mainly outside Great Britain is the whole period of employment. This approach was supported by the wording in section 8(1) of the Act. The Court of Appeal held that its decision applied equally to all employees even though a person serving in the Armed Forces is not an employee as there is no contract of service. The matter was remitted to a different Tribunal to determine the issue of jurisdiction in accordance with the Court of Appeal’s Judgment.

It is important to note that this decision relates to the Act. (The Act, as amended on 19 July 2003, broadens the grounds on which employees can bring claims under the Act where the employee works wholly outside Great Britain and the employer has a business establishment in Great Britain).

The decision applies equally to other discrimination legislation, for example, sex, disability, religion/belief and sexual orientation. However, there are differences between the relevant provisions of each Act, which need to be considered. Different jurisdictional criteria apply to unfair dismissal claims.

The decision is of importance to employers with employees who spend or have spent all or part of their working time overseas, whom they may consider are not eligible to bring Tribunal claims in Great Britain. It is important to look at the whole period of employment to determine whether or not an employee has jurisdiction to bring a claim under the Race Relations Act 1976.


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