Neary v Service Children’s Education

“Ordinarily resident” has its natural and ordinary meaning. It refers to an abode voluntarily adopted for a settled purpose as part of the regular order of a person’s life. A person may be ordinarily resident in more than one country at the same time. The inquiry focuses on the position at the statutory date, but requires consideration of the surrounding circumstances and the person’s regular mode of life. A temporary employment abroad may constitute a settled purpose and may establish ordinary residence there. An error in directing the inquiry does not require an appeal to succeed where the evidence permits only one reasonable conclusion.

The claimant applied for a teaching post at a school in Cyprus and alleged disability and age discrimination after he was not shortlisted. The Employment Tribunal held that it had no jurisdiction because he was not ordinarily resident in Great Britain when he applied or when the decision was communicated. His claim was dismissed at a pre-hearing review.

On appeal, he argued that the Tribunal had applied the wrong test, failed to consider concurrent ordinary residence in Germany and Great Britain, and reached a perverse conclusion. The central issue was the meaning and application of “ordinarily resident in Great Britain” under the relevant discrimination legislation.

1. Appeal dismissed. The Employment Tribunal had erred in law by approaching Germany and Great Britain as alternatives and failing to consider whether the claimant could be ordinarily resident in both countries at the same time.
2. “Ordinarily resident” means an abode in a particular place or country voluntarily adopted for settled purposes as part of the regular order of a person’s life, whether for a short or long duration. The residence must be voluntarily adopted and must have a sufficient degree of continuity to constitute a settled purpose. A person may be ordinarily resident in two countries simultaneously.
3. The statutory inquiry is directed to the position when the employee applies for or is offered the employment, or at the relevant time during employment. That focus requires consideration of the broader regular order of the person’s life, including events before and after the statutory date. Employment, business or professional activity may amount to a settled purpose.
4. On the facts found, the claimant had moved to Germany to teach, had lived and worked there for an extended period, had given a German address in his application and subsequent documents, and regarded any return to Great Britain as temporary. His property in Great Britain was let. Those facts established ordinary residence in Germany at the relevant times.
5. Although the Tribunal had applied an erroneous legal approach, the error was immaterial. Applying the correct principles, only one conclusion was reasonably open to it. The challenge on perversity also failed, applying the high threshold identified in Dobie v Burns International Security Services (UK) Limited.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal’s decision that it lacked jurisdiction was upheld, notwithstanding an error in the legal direction.