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Employment Law – Claims for Overseas Worker

employment lawIn 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.