In the case of Tradition Securities & Futures SA v X & Y, the Employment Appeal Tribunal clarified the Employment Tribunals’ jurisdiction in sex discrimination cases.
Whilst this case relates to sex discrimination, its implications are relevant to other types of discrimination as well and will be of interest to large multi-national organisations whose employees work in various jrisdictions throughout their employment.
What happened in this case?
Ms X was employed by a French company, Tradition Securities and Futures SA (“Tradition”). She began work with Tradition in Paris in 2001. In 2004 she moved to their London office, where she worked until November 2006. Ms X alleged that she suffered sex discrimination and harassment at both locations, although by different people, during her 5 year period of employment with Tradition.
The Employment Tribunal decided that the Tribunal had jurisdiction to hear Ms X’s complaint in relation to acts done between 2001-2004 during her employment in Paris, in addition to her employment in London. Tradition appealed against this ruling.
The EAT said that the ability to bring a discrimination claim depended on the employee’s situation at the time of the alleged discrimination; the Tribunal would not have jurisdiction if at that time, the employee worked wholly outside Great Britain (ss6(2) and 10(1) Sex Discrimination Act 1976 (SDA))1. The EAT acknowledged that this matter could not be addressed simplistically by saying that because Ms X was working in Paris between 2001 and 2004, she was working wholly outside Great Britain and therefore fell outside of the jurisdiction of the SDA and of the Tribunal. The EAT referred to the leading case of Saggar where it was decided that the relevant period for determining whether the employee did work wholly or partly in Great Britain is the whole period of employment. As the nature of employment and of discrimination is inherently flexible, it would prove necessary to analyse each case individually and to assess the whole period of employment.
As to whether the treatment in France could be taken into account by an English Tribunal, Ms X argued that the discrimination in France and England was “an act extending over a period” (i.e. a continuing act of discrimination), so that the discrimination in France and England would be considered as one act and could therefore come under the Tribunal’s remit (s.76 SDA).
The EAT said that this provision of the SDA dealt with time limits for bringing a claim and could not be used to determine jurisdiction. In the same way that jurisdiction could not be conferred retrospectively, the alleged actions in France could not count as one act with the allegations in England. In particular it was pointed out that during the alleged discrimination in France Ms X was a French national, living and working in France for a French company and therefore had the protection of French law.
For these reasons the EAT held that the Tribunal could only consider allegations of discrimination in England and not those relating to the alleged earlier incidents in Paris. The EAT commented that it would be for the Employment Tribunal to decide what evidence it would admit as background material to the alleged discrimination which occurred later in London.
What does this decision mean for employers?
This decision has implications for employers whose employees work for part of the term of their employment in Britain, and other parts elsewhere (even if foreign nationals). If sex discrimination takes place whilst the employee is employed “wholly or partly in Great Britain”, a claim may be brought. However, according to Tradition, for any part of the employment in which the employee is not so employed, discriminatory treatment suffered during that time may not be taken into account by the Employment Tribunal.
It is important that employers do not become complacent about treatment of their staff abroad. First, as in Tradition, the posted employee may be protected by local laws. Second, each case will be determined on its own facts. At first glance, this judgment appears to indicate that although a Tribunal must look at the whole period of employment to determine its jurisdiction, an employee’s treatment whilst abroad would not be taken into account. However, imagine another scenario where a female employee, Y, begins employment in Britain with a British company and is posted abroad for a number of years. Y suffers harassment in Britain throughout the entire period of her employment, both in Britain and during the posting. Should the Tribunal take into account harassment suffered during the posting abroad? Tradition raises questions as to whether this would be the case. Under the current version of s 10(1) SDA (which was amended in 2005), the Tribunal must decide whether at the time Y was abroad, she worked “wholly or partly in Great Britain”. Applying Saggar and looking at the whole period of employment, the Tribunal may well conclude that she did as, unlike the Claimant in Tradition, Y worked first in Britain. Accordingly the Tribunal will have jurisdiction to consider the treatment suffered whilst abroad and in Britain.
There are therefore many situations in which the facts would not to be as clear cut as those in Tradition (as in the above example) and so employers should be aware that discriminatory acts abroad could still be relevant to the employee’s claim. It appears that each case will turn on its own facts, examining the whole employment relationship and decided on a case by case basis.
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