Saggar v Ministry of Defence

The Court of Appeal determined that, for the purpose of establishing protection under Part II of the Race Relations Act 1976, a tribunal must consider the employment relationship as a whole when deciding whether the employee "wholly or mainly" did his work outside Great Britain under section 8(1). The court held that the employment tribunal and the Employment Appeal Tribunal erred in law by restricting the relevant period to the short period during which the alleged discriminatory acts occurred (Akrotiri, Cyprus) and thereby concluding the applicant was excluded from protection.

Key legal principles:

• Part II protection attaches to employment "at an establishment in Great Britain" unless, under section 8(1), the employee did his work wholly or mainly outside Great Britain.
• "Employment" is to be regarded as the whole relationship between employer and employee (section 78(1) is relevant to definitions) and normally the whole period of employment should be considered when assessing whether work was done "wholly or mainly" outside Great Britain.
• Cases such as Carver do not preclude a tribunal from taking the whole employment history into account when answering the "wholly or mainly" question for discrimination claims.

Background and parties: Lt Col Surinder Saggar, an officer of Indian ethnic origin serving as a military consultant anaesthetist in the Royal Army Medical Corps, brought a claim under the Race Relations Act 1976 alleging racial discrimination by officers at Akrotiri, Cyprus, between September 1998 and December 1999. The respondent was the Ministry of Defence.

Procedural history: The employment tribunal ruled it had no territorial jurisdiction, concluding the applicant worked wholly outside Great Britain. The Employment Appeal Tribunal dismissed the appeal, treating the relevant period as that during which the alleged discrimination occurred. Permission to appeal to the Court of Appeal was granted.

Nature of the claim and relief sought: The applicant sought to have his complaint of racial discrimination under Part II of the Race Relations Act 1976 heard by an employment tribunal; the preliminary question was whether the tribunal had jurisdiction.

Issues framed:

• Whether section 8(1) of the Race Relations Act 1976 required the tribunal to assess the whole period of employment or only the period during which the alleged discriminatory acts occurred in deciding whether the employee did his work "wholly or mainly" outside Great Britain.
• Whether earlier authority, in particular Carver v Saudi Arabian Airlines, required a different approach.
• Applicability of Part II to members of the armed forces (section 75(2)) and the meaning of "employment" (section 78(1)).

Court's reasoning and conclusions: The court concluded that the employment tribunal and the Employment Appeal Tribunal had erred in law by confining consideration to the period of alleged discrimination and not the whole employment relationship. The opening words of section 8(1) indicate that employment is to be regarded as at an establishment in Great Britain unless excluded; exclusion arises only if the employee did his work "wholly or mainly" outside Great Britain. The court reasoned that "mainly" presupposes comparison over the whole employment and that earlier employment at establishments in Great Britain may be relevant. Carver was held not to determine that only the short period of alleged discrimination should be considered. The appeal was allowed and the matter remitted to a differently constituted tribunal to determine jurisdiction taking account of the applicant's whole period of employment.

The court noted the status of the Sovereign Base Area at Akrotiri as outside Great Britain and that service in the armed forces falls within Part II by virtue of section 75(2).

Appeal allowed. The Court of Appeal held that the employment tribunal and the Employment Appeal Tribunal erred in law by considering only the period during which the alleged discriminatory acts occurred when deciding whether the employee did his work "wholly or mainly" outside Great Britain under section 8(1) of the Race Relations Act 1976. The correct approach is normally to take the whole period of employment into account. The matter was remitted to a differently constituted tribunal to decide jurisdiction accordingly.

Employment Tribunal: found no jurisdiction (extended reasons dated 11 October 2001). Employment Appeal Tribunal (President Burton J): appeal dismissed on 10 June 2004 (UKEAT/1385/01/SM). Court of Appeal: appeal allowed and matter remitted (27 April 2005) [2005] EWCA Civ 413.