The Court Of Public Opinion

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. Please contact us for more information: enquiries@rtcoopers.com

? 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.

Full service commercial law firm based in the City of London specialising in Employment Law, Employment Lawyers, Dismissals, Redundancies, Suspensions, Grievance and Disciplinary Procedures, Workplace Disuptes, Wrongful Dismissals, Breach of Contract, Business Secrets/Confidential Information, Contract Disputes, Drafting and Advising on Compromise Agreements, Drafting and Advising on Employment Contracts or Terms of Employment, Drafting and Advising on Staff Handbook and other Policy Documents, Employment Tribunal Claims, Employment Termination, Employee Benefits and Incentives, Equal Pay Disputes, Restructuring and Re-organisations, Senior Executive Appointments and Service Agreements, Sex Discrimination, Sexual Harassment, Sexual Orientation Issues, TUPE Transfers

If you have an employment question, please contact Rosanna at enquiries@rtcoopers.com. We have a number of employment legal uodates on our website at: http://www.rtcoopers.com/practiceemployment.php

The case of Webster v Brunel University [2004, was recently decided by the Employment Appeal Tribunal (‘EAT’). The applicant, Webster, was employed by Brunel University as a helpdesk officer providing Information Technology support to the administrative staff of the respondent, Brunel University. The applicant brought proceedings in the employment tribunal against the respondent, claiming racial discrimination.

The tribunal dismissed her complaints. The applicant appealed in respect of the dismissal of one of her complaints, namely that whilst she was giving advice over the telephone she heard laughter in the background and the word ‘Paki’ was mentioned. She claimed racial discrimination and contended that Brunel University was vicariously liable.

Section 54A (1) of the Race Relations Act provides:

‘This section applies where a complaint is presented under s 54 and the complaint is that the respondent (a) has committed an act of discrimination, on grounds of race … which is unlawful (2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent (a) has committed such an act of discrimination against the complainant the tribunal shall uphold the complaint unless the respondent proves that he did not commit that act’.

The applicant claimed the following:

Once the tribunal had found that the word ‘Paki’ was used, it had erred in leaving the onus on the applicant, to establish that there had been unfavourable treatment on grounds of race;

Further, the tribunal having left the onus on the applicant to establish unfavourable treatment and by looking at all the facts had simply decided that she had not proved her case;

That the tribunal should at least have considered transferring the onus of proof to the respondent;

That the tribunal ought to have concluded that there could have been discriminatory treatment by Brunel University because the alleged treatment could have been by an employee of the University. Once it concluded discriminatory treatment the tribunal should have transferred the onus from the applicant to the respondent.

The University contended that before the onus of proof could transfer to the respondent:

It was necessary for the applicant to establish that there was unfavourable treatment by the respondent; and Only then could inferences be drawn that that treatment was discriminatory on grounds of sex or race. The EAT allowed the appeal. The EAT ruled that the onus of proof transferred to the respondent once the applicant had established a prima facie case that there had been a discriminatory act by the respondent.

The EAT held that in future tribunals should apply the same prima facie test as applied to all questions relating to race and sex discrimination. In particular, where the treatment complained of by an applicant, amounted to sexual or racial discrimination and, was carried out by an employee of the respondent.

The Tribunals should in future direct themselves that once the facts had been found on the balance of probabilities, from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed such an act, then the tribunal would uphold the complaint unless the respondent proved that it had not committed the act or, that the respondent was not vicariously liable for the employee that had committed the act.

The case was remitted to a fresh tribunal to consider:

Whether there was a prima facie case of unfavourable treatment by the respondent by someone for whom the respondent was vicariously liable; and If so, upon the burden of proof passing from the applicant to the respondent, whether the respondent could establish that there was no unfavourable treatment, significantly influenced by race, of the applicant, by one of its employees.

If you require further information contact us.

Email: enquiries@rtcoopers.com

? 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.

Employment solicitors, employment law, employment lawyers, employment law firm, Redundancies, Unfair Dismissals, Breach of Contract, Workplace Disputes, TUPE Transfers, Drafting Employment Contracts, Grievance Procedures, Disciplinary Procedures, Maternity Rights,Discrimination, Employment Disputes, suspensions, wrongful dismissal,Equal Pay, Media Copyright.

For further advice email us at enquiries@rtcoopers.com or visit our website at http://www.rtcoopers.com/practiceemployment.php

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 employees 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 Saggars 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 Appeals 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. Please contact us for more information: enquiries@rtcoopers.com

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.

More articles at articles on database

In October 2006, the case of Letherbarrow v Kindergarten UK Ltd [2006 came before the Employment Tribunal. An employee and his wife had both been directors and co-owners of the employer company. The employees wife was the majority shareholder, although she was an employee as well.

The employees marriage with his wife broke down. He was summarily dismissed for gross misconduct on 10 September 2005. A number of issues relating to his conduct were complained of, the most material of which was the allegation that on 7 September he had taken the sum of 600 from the employers safe without consent. He appealed against his dismissal but was unsuccessful. The employee then began Tribunal proceeding on the grounds that he had been unfairly and wrongfully dismissed.

At a pre-hearing review, the Tribunal struck out the employees two claims on the grounds that they had no reasonable prospect of success. From the answers given to the Tribunal by the employee, the Tribunal adduced that he had in fact taken the 600, an act which clearly amounted to gross misconduct, and that therefore his dismissal had been within the reasonable range of responses available to the employer. The employee appealed to the Employment Appeals Tribunal (EAT).

The employee argued that the Tribunal had erred in taking for granted the employers reason for his dismissal, especially as the employee had disputed its genuineness. He had made it clear that the allegations leading to his dismissal had been linked to the breakdown of his marriage. In such circumstances the Tribunal should have adopted a different procedure.

The appeal was allowed. The EAT ruled:-

* that the Tribunal had not heard evidence from the parties before reaching its decision.

* As the employee had made allegations concerning the impropriety of the proceedings brought by the employer, the case was not suitable for the summary procedure used by the Tribunal.

* The tribunal should have considered that even though the taking of the sum of 600 from the safe could have amounted to gross misconduct, the employee may not have needed permission to do so as he was a director of the employer company.

* Furthermore, the Tribunal had neglected to consider the procedural fairness of the dismissal.

Under the above circumstances, the Tribunal had erred in striking out the employees claim. The EAT ruled that the should be heard before a fresh tribunal for reconsideration.

RT COOPERS, 2006. 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.

More articles at articles database