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Territorial Jurisdiction

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The Court of Appeal has, today, overturned the EAT's decision in Saggar v Ministry of Defence.

Lt. Col. Saggar was an army officer. He served between 1982 and 1998 (16 years) in the UK. He was then posted to Cyprus for just over three years. During the first year of that posting, he was (allegedly) subjected to acts of race discrimination.

The employment tribunal (and, subsequently, the EAT) held that Lt. Col. Saggar's employment was, at the relevant time, "wholly or mainly outside Great Britain" and therefore the tribunal had no jurisdiction to hear the substantive complaint of race discrimination because of s8 of the Race Relations Act 1976.

The Court of Appeal has overturned this ruling. Mummery LJ (giving the only judgment) held that the correct approach is to look at where the employee is based for his entire period of employment (in this case, 19 years). In that light, the tribunal should then ask, 'was the employment wholly or mainly outside Great Britain?' It has remitted the question to a different tribunal, with a fairly clear steer that a period of three years abroad out of 19 years total service could not be said to be employment 'wholly or mainly' outside Great Britain.

Note that the test for territorial jurisdiction has now changed (see the new s8 of the Race Relations Act 1976, post July 2003). The test is now whether work is done "wholly or partly" in Great Britain (with an additional proviso granting jurisdiction if the employer carries on business in Great Britain and the employee was ordinarily resident in Great Britain when obtaining employment or at any time during employment). Nevertheless, the Saggar decision remains important, as tribunals will need to look at the entire employment period when deciding whether the employee did work 'wholly or partly' in Great Britain.

Saggar v Ministry of Defence