The Employment Appeal Tribunal has ruled that wives of service men working for the MOD in continental Europe were entitled to bring sex discrimination claims in England, even though the express wording of the Sex Discrimination Act ruled that out. This decision, which came out at the end of July, has not received the attention it deserves, being overshadowed by the publicity surrounding the abolition of the default retirement age and the implementation of the Equality Act.
Why did the EAT come to such a surprising conclusion? The answer lies in the principle established by the European Court of Justice which requires our courts to interpret domestic legislation in a way that ensures the rights conferred by EU directives are effective. In this case that meant ignoring a provision of the Sex Discrimination Act which says that workers abroad must have been ordinarily resident in Great Britain, at least when applying for the job, in order to bring claims under the Act. The EAT reasoned that otherwise the two women involved, who were employed under English law contracts in posts reserved for spouses of army personnel working abroad, would be unable to bring claims.