Discrimination Overseas - Jurisdiction

The EAT has handed down its decision in the important case of Saggar (&ors.) v Ministry of Defence.

Under the sex and race discrimination legislation, an employee can claim discrimination "unless the employee does his work wholly outside Great Britain". This case considers the position of three army officers who were based outside Great Britain and answers three questions.

1. What is the time at which whether the Applicant works outside Great Britain to be judged?
Burton P. held that one looks at the time of the allegations of discrimination. There is no discrimination at an establishment in Great Britain if the person being discriminated against (abroad) is either someone who used to work in Great Britain, but has not done so for many years, or who is employed under a contract which contemplates he might be employed in Great Britain, but in fact he never was (para. 27)

2. What is work?
In one of the cases, the overseas officer attended training courses in Great Britain during the year. If this was 'work', then she did not do her work 'wholly' outside Great Britain, 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 ther work, its duration and regularity (paras. 36-37)

3. Is there a de minimis exception?

Yes. One of the cases involved an army chaplain who attended a funeral in Great Britain (which was held to be 'work'), whilst based in Germany. The EAT held that a de minimis principle applies, and that "it would offend against the de minimis principle to found jurisdiction on a one day visit" (para. 45).