A Supreme Court decision about a British teacher at a European School in Germany leaves the way open for workers abroad to bring discrimination claims against British-based employers, even if they have been outside the country for the duration of their employment. It also decided that Mr Duncombe’s employment had sufficient connection with Britain for him to bring proceedings for unfair dismissal in this county.
The factual and legal background to Mr Duncombe's case is very unusual, and, contrary to expectations, it has not provided definitive guidance on the territorial scope of British discrimination law. However, the Supreme Court has endorsed the view that where a claimant's rights are derived from underlying EU law, a mechanism needs to be found to ensure that these rights can be effectively enforced in the case of expatriate workers.
Similar issues were raised in another recent case, this time heard by the Court of Appeal. It was brought by two wives of British serviceman working for the MOD in continental Europe. They were allowed to bring both unfair dismissal and sex discrimination claims, even though they had never worked in Britain. This decision was reached despite the fact that the express wording of the Sex Discrimination Act appeared to rule out their sex discrimination claims.
Since the vast majority of our domestic discrimination law is underpinned by a corresponding EU directive, employers need to be aware that actions taken in relation to British workers abroad – particularly in the EU – may give rise to claims being brought against them in Britain.