In the case Saggar v Ministry of Defence [2005] , it was held that an overseas based employee of a British business, who was a UK resident when recruited or at any time during the course of the employee's employment, is entitled to bring a discrimination claim in the UK . The claim can be brought even if the employee did no further work in Britain after the move overseas.
After 16 years at a Ministry of Defence base in Britain , Lieutenant Colonel Surinder Nath Saggar was permanently stationed in Cyprus from 1998 and was still there when he made a claim for race discrimination.
The Employment Tribunal decided that Lieutenant Saggar worked wholly outside Britain and could not file a race discrimination claim in Britain . He appealed against this decision to the Employment Appeals Tribunal ("EAT").
The EAT dismissed the appeal and held that:-
In order for Lieutenant Saggar's claim to succeed, the EAT would have to look at the whole of his employment from 1982 onwards, and that would be "absurd";
The EAT was bound by the decision of the Court of Appeal in the case of Carver v Saudi Arabian Airlines [1999] where 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;
Accordingly, at the time of the alleged discrimination, Lieutenant Saggar worked wholly in Cyprus .
The case went to the Court of Appeal and it was decided that: -
The relevant period for determining whether a claimant worked wholly or mainly outside Great Britain is the whole period of employment;
This approach was supported by the wording in s 8(1) of the Race Relations Act 1976; and
This 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.
Comment: This is a significant decision in favour of employees. This means that in many cases where employees are posted abroad they are entitled to bring employment claims in the UK . In practice, as well as complying with the rules of the country where employees are working, it would be sensible for employers to apply English employment law standards as well.
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© RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.
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