Saggar v Ministry of Defence

Under Part II of the Race Relations Act 1976, employment is generally treated as being at an establishment in Great Britain unless the employee does work wholly or mainly outside Great Britain. The inquiry is made at the time of the alleged discrimination, but the assessment ordinarily covers the whole employment relationship, not merely the period in which the discriminatory acts occurred. Work outside Great Britain does not itself remove statutory protection. A tribunal must investigate the employment history and apply the statutory test on the facts.

Lt Col Surinder Saggar, an Army medical consultant, complained of racial discrimination by his commanding officer while posted to Akrotiri in Cyprus between September 1998 and December 1999. The employment tribunal held that it had no jurisdiction because he was working wholly outside Great Britain under sections 4(2) and 8(1) of the Race Relations Act 1976.

The Employment Appeal Tribunal dismissed his appeal, treating the relevant period as confined to the period of the alleged discrimination. The Court of Appeal considered whether that approach was an error of law and what period had to be considered when deciding whether the employee worked wholly or mainly outside Great Britain.

Appeal allowed and remitted to a different employment tribunal. Lord Justice Mummery gave the judgment, with Lord Justices Tuckey and Clarke agreeing.

1. Part II of the Race Relations Act 1976 protects employment connected with an establishment in Great Britain. The fact that the employee, employer or alleged discriminatory act was outside Great Britain does not itself remove protection where the employment is regarded as being at such an establishment.
2. Section 8(1) must be construed purposively. Its opening words establish the initial position that employment is to be regarded as being at an establishment in Great Britain. Protection is excluded only if the employee does work wholly or mainly outside Great Britain.
3. The jurisdictional question is addressed at the time of the alleged unlawful discrimination. However, the assessment of whether the employee worked wholly or mainly outside Great Britain normally requires consideration of the employment relationship as a whole. Earlier work at establishments in Great Britain cannot be disregarded merely because the alleged discrimination occurred during a later overseas posting. The tribunal must determine the issue on the relevant facts; the legislation does not provide complete legal certainty for every changing employment relationship.
4. Carver v Saudi Arabian Airlines ([1999] ICR 991) decided that the jurisdictional criteria for sex discrimination differed from those applicable to unfair dismissal. It did not decide the critical question of the relevant period for applying the wholly-or-mainly test and did not require the tribunal to consider only the period of alleged discrimination. Haughton v Olau Line (UK) Ltd ([1986] ICR 357) and Deria v General Council of British Shipping ([1986] ICR 172) did not determine that temporal issue.
5. The tribunals below erred in law by considering only the period of the alleged discrimination and by failing to investigate the applicant’s employment as a whole. The matter was remitted for rehearing of jurisdiction on the basis that the whole period of employment by the Ministry of Defence must be considered.

• Court of Appeal (Civil Division) Allowed the appeal and remitted the jurisdiction issue to a different employment tribunal.
• Employment Appeal Tribunal On 10 June 2004, dismissed the appeal, holding that the relevant period was the period during which the alleged discrimination occurred: UKEAT/1385/01/SM.
• Employment tribunal Held that it had no jurisdiction because the applicant worked wholly outside Great Britain during the period of the alleged discrimination, and dismissed the complaint.