Tribunal jurisdiction where employee has service overseas
26th August 2008
The Employment Appeal Tribunal has found that where an employee of French nationality worked for a French registered company in Paris for 3 years followed by a further 2 years in London and alleged a course of sex discrimination extending across the whole 5 year period, the Employment Tribunal in the UK ought not to have heard the aspects of the claim relating to the French employment.
The Sex Discrimination Act 1975 provides that it is unlawful for an employer to discriminate against a woman employed by them at an establishment in Great Britain. The Act further specifies that employment is to be regarded as being at an establishment in Great Britain unless the employee does work wholly outside Great Britain. A common sense reading of the legislation would suggest that the employer could only be liable before an Employment Tribunal in the UK in respect of the period of employment in London.
The complicating factor in this case was the Claimant’s assertions that the discriminatory acts were a series of incidents that started in Paris and continued in London. Her argument was that the legislation ought to enable all of these discriminatory acts to be considered as a continuous series and that the French acts ought therefore to be capable of being decided upon in the UK Employment Tribunal.
The EAT decided that the concept of a continuing act extending over a period of time could not enable the incidents in France to be considered before the Employment Tribunal in the UK and so the Tribunal had no jurisdiction to decide upon the events in France.
Tradition Securities and Futures SA v X and another UKEAT/0202/08
For more information click here
What we think
This is a common sense decision that addresses the issue of whether allegations of discrimination in a foreign jurisdiction are capable of being presented at Employment Tribunals in the UK.
The decision makes clear that the concept of a “continuing act” of discrimination as detailed in section 76 of the Sex Discrimination Act 1975 deals with timing issues and not jurisdictional ones and accordingly it cannot be advanced by Claimants to introduce evidence from another jurisdiction.
The decision makes it clear that the right to bring a discrimination claim before an Employment Tribunal has to be addressed by reference to the Claimant’s situation at the time of the alleged unlawful discrimination.
The decision will be of particular importance to large multi national organisations where employment relationships are increasingly complex, flexible and dynamic and where employment can be for varying length across different jurisdictions.
For more information, please contact:
Glasgow: Paul Brown or Michael McLaughlin - tel: 0141 228 8000
Edinburgh: Alan Strain - tel: 0131 226 5541
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.