English employment tribunals can only hear claims by employees who work in Great Britain. So what protection is there for people who work abroad? The employment appeal tribunal (EAT) has just decided in two of three conjoined cases - Saggar v Ministry of Defence; Lucas v Ministry of Defence; Ministry of Defence v Gandiya (IDS, 763) - that they have to work more than a minimal amount of time in GB to be eligible.

What is the relevant legislation?

Both the Sex Discrimination Act 1975 and the Race Relations Act 1976 state that it is unlawful for an employer to discriminate against an employee who works 'at an establishment in Great Britain', even if the employee works some of the time outside Great Britain. It is only if they work 'wholly outside' it that they lose the protection.

However, prior to 16 December 1999 the legislation was more restrictive and said that an employee was to be regarded as being employed at an establishment in Great Britain, unless he or she worked 'wholly or mainly outside' GB.

What were the basic facts?

Saggar: After sixteen years at an MOD base in the UK, Lt Col Saggar had been permanently stationed in Cyprus from 1998 and was still there when he made his claim of race discrimination. The tribunal decided that he worked wholly outside GB.

Lucas: Ms Lucas was stationed in Northern Ireland and complained of alleged acts of sex discrimination from February to September 2000. She was stationed in the province for the whole time, and only left to take annual leave and to attend a number of training courses in England. All her intelligence work was done in Northern Ireland. Again, the tribunal found that she worked wholly outside GB.

Gandiya: The Rev Gandiya was an army chaplain stationed in Germany from 1998. He complained of acts of discrimination between March 1999 and August 2000. He spent all his time outside GB except for attending a retreat, a funeral and a wedding in GB in 2000. The tribunal decided that these visits were part of his work.

What did the EAT decide?

The EAT said it had to answer three basic questions: 

  1.  What point in time should the tribunal use to decide if the applicant works wholly outside GB? 
  2.  What constitutes work? 
  3.  Is there a minimum consideration in relation to the word 'wholly'?

Time: The EAT dismissed Mr Saggar's appeal because it said that it would have to look at the whole of his employment from 1982 onwards for his claim to succeed, and that would be absurd. The tribunal said that the law cannot protect someone alleging discrimination while working abroad, if that person is either someone who used to work in Great Britain but has not done so for many years, or someone who was employed under an original contract that contemplated that he or she would or might be employed in Great Britain but in fact never was.

Work: The EAT said that tribunals should ask themselves three questions to decide whether an activity constitutes work: 

  • Is the applicant required to do the work under their contract? 
  • What is the content of the work? 
  • How regular is the work and how long does it last for?

The EAT decided that by attending training courses in England during her time in Northern Ireland, Ms Lucas was not doing her work wholly outside GB.

Her appeal was therefore allowed. With regard to Rev Gandiya, it said that his officiation at the funeral fell within his duties, and that by visiting this country to perform them he was working in Great Britain for that day.

De Minimis: However, the MOD's appeal against Rev Gandiya was ultimately successful because the EAT went on to say that it would be absurd to establish jurisdiction on the basis of a one day visit, when the rest of his employment was 'otherwise wholly abroad'.