United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the First Appellant, Lt. Col. S N Saggar:	MR PAUL EPSTEIN (of Counsel) Instructed by: Commission for Racial Equality St Dunstan's House 201-211 Borough High Street London SE1 1GZ
For the Second Appellant, Ms S J Lucas:	MR ANDREW HOGARTH QC (of Counsel) Instructed by: Messrs Stephen Rimmer & Co Solicitors 28 Hyde Gardens Eastbourne East Sussex BN21 4PX
For the Third Respondent, Rev. L F Gandiya:	MS AMANDA EILLEDGE (of Counsel) Instructed by: Messrs Fosters Solicitors William House 19 Bank Plain Norwich NR2 4FS
For the Ministry of Defence:	MR TOM LINDEN (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS

SUMMARY

Jurisdiction

3 conjoined cases to determine jurisdiction of English ET to deal with claims of sex or race discrimination abroad. Test is whether, by reference to the period of time when the discrimination occurred (Carver interpreted and applied) Applicant did his or her work wholly abroad. De minimis principle applies so that fleeting or minimal presence in England during relevant period does not found jurisdiction.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of three consolidated appeals, all relating to the same issue and, as it happens, the same employer, the Ministry of Defence, who are Respondents to two of the appeals and Appellant in the third: we shall call them for consistency the Respondent. The three Applicants, Lieutenant Colonel Saggar, Miss Lucas and Rev Gandiya, were all employed by the Respondent and all brought discrimination claims in Employment Tribunals against it, Lt Col Saggar and Rev Gandiya for race discrimination, by reference to the Race Relations Act 1976 ("the 1976 Act") and Miss Lucas for sex discrimination, by reference to the Sex Discrimination Act 1975 ("the 1975 Act"). The common factor in all three appeals is that at the material time all three Applicants were stationed abroad, and the alleged acts of discrimination were all committed abroad. They all contended before the several Employment Tribunals, Rev Gandiya successfully, that they were entitled to pursue such claims in an English employment tribunal. Rev Gandiya's claim was conjoined to a claim by another applicant, a Mr Martin, in respect of whom issues are no longer live. Lt Col Saggar's claim was unanimously dismissed by an Employment Tribunal at Thornaby on Tees, after a hearing on 18 September 2001, by Reasons handed down on 11 October 2001: Miss Lucas's claim was, after two earlier preliminary hearings, unanimously dismissed by an Employment Tribunal at London South on 19 April 2002 by Reasons handed down on that day, and Rev Gandiya's claim was allowed to proceed by the majority decision, the Chairman dissenting, of an Employment Tribunal, also at London South, after a hearing on 30 and 31 July 2002, by Reasons handed down on 16 October 2002. The Respondent has been represented in all three appeals by Tom Linden of Counsel, who only appeared below in the Gandiya case. Lt Col Saggar has been represented before us by Paul Epstein of Counsel, who is not the same Counsel as represented him below: Miss Lucas has been represented before us by Mr Andrew Hogarth QC who, as junior Counsel, represented her below: Rev Gandiya has been represented before us, as he was below, by Amanda Eilledge of Counsel.

The Law

2. The relevant legislation is as follows. There are identical provisions in the 1976 Act and the 1975 Act, ss4(1) and (2) and 8(1) of the former, and ss6(1) and (2) and 10(1) of the latter. We shall restrict ourselves to referring to the relevant sections of the 1976 Act, but it must be assumed at all times that the references and arguments are identical in respect of both Acts, and we shall not be continually referring to both Acts, but only to the sections of the 1976 Act.
3. S4(1) and (2) prescribe what discrimination in the employment field is unlawful, and hence actionable in an employment tribunal. Each of them sets out the particular acts of discrimination which are proscribed, but commencing with the words:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another … in … by …

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee … in … in … by"

4. Section 8(1) reads as follows:

"For the purpose of this Part …, employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly outside Great Britain."

5. In those circumstances, for the purposes of the actionability in a British employment tribunal of an act of discrimination alleged against an employer amenable to be sued in the British courts, an employee is taken to be employed at an establishment in Great Britain unless he does his work wholly outside Great Britain.
6. Two other important matters of legal framework must be set out:

6.1 Both s8(1) of the 1976 and s10(1) of the 1975 Act were identically amended with effect from, i.e. so far as concerned any alleged acts of discrimination after, 16 December 1999, by the Equal Opportunities (Employment Legislation) (Territorial Limits) Regulations 1999 ("the 1999 Regulations"). It is common ground that this resulted from, and was the United Kingdom's method of implementing, what is called the "Posted Workers Directive", namely the European Parliament and Council Directive of 16 December 1996 (96/71/EC), which applied to a "posted worker", namely (by Article 2(1)) "a worker who, for a limited period, carries out his work in the territory of a member state other than the state in which he normally works", and which was intended to ensure that such posted workers were entitled to the same protection from discrimination as was available to workers in the territory to which they were posted. The nature of the amendment was to delete the words "or mainly" from the two subsections. S8(1), which we have set out in paragraph 4 above, previously read (the deleted words being in bold):

"For the purposes of this Part (…), employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly or mainly outside Great Britain."

6.2 The leading case, on the meaning and applicability of the sections (a sex discrimination case thus dealing with the wording of the equivalent sections in the 1975 Act) was the Court of Appeal decision in Carver v Saudi Arabian Airlines [1999] ICR 991. The applicant, recruited in Saudi Arabia as a flight attendant under a contract expressed to be subject to Saudi Arabian law, was, after being employed originally in India for four years, transferred to be based in London, from which all her tours of duty as a flight attendant thereafter commenced, and at which they ended. She complained of unfair dismissal and of sex discrimination. The Court of Appeal dismissed her complaint of unfair dismissal because, by reference to the relevant test at the time for the jurisdiction of UK tribunals in relation to unfair dismissal, she did not ordinarily work in Great Britain. So far as concerned the sex discrimination claim, the applicant's appeal was allowed to the extent that the issue was remitted to a differently constituted tribunal to determine where the applicant wholly or mainly did her work at the relevant time. After considerable and detailed discussion about the unfair dismissal jurisdiction, including consideration of the terms of her contract and the meaning of ordinarily, Mantell LJ, with whom Beldam LJ and Ward LJ agreed, turned concisely to deal with the sex discrimination claim at 1003:

"Here the position was quite different. The Tribunal had to consider where at the time of the alleged discrimination the appellant was "wholly or mainly" working [our underlining]. See Haughton v Olau Line (UK) Ltd [1986] ICR 357 in the Court of Appeal. However, the tribunal decided jurisdiction on where the applicant was ordinarily working. That was impermissible. Insofar as the tribunal purported to make a finding of fact as to where the applicant was wholly or mainly working, it seems to me that it did so without any evidential basis. The tribunal appears to have taken the monthly, minimum, flying time, namely 72 hours, required of the applicant and set it against a notional working week of 40 hours. By such a comparison it would seem that the applicant worked most of her time within Great Britain. But neither the 72 hours minimum flying time nor the notional 40-hour week had any relevance to the question which had to be determined. Consequently I would hold the finding to be without any foundation and as such to amount to an error of law. I would be minded therefore, to remit the question of jurisdiction under the Sex Discrimination Act 1975 to the tribunal, differently constituted, with a direction to determine the question of jurisdiction on the basis of where the applicant wholly or mainly did her work at the relevant time."

It can be seen that at the time of Carver the provisions had not yet been amended so as to delete the words "or mainly".

The Facts

7. Lt Col Saggar was a military consultant anaesthetist, permanently stationed in the Sovereign Base of Akrotiri in Cyprus from September 1998, and still there at the date of his Originating Application in April 2000: indeed according to Mr Epstein's skeleton argument on his behalf, at paragraph 8, he would have expected to have stayed there until retirement in January 2002. An application was made by Mr Epstein to amend the Applicant's Notice of Appeal to introduce reference to facts about his activities during the period he was stationed at Akrotiri. Such matters (i) had not been adduced in evidence at the Tribunal (ii) did not appear in the Notice of Appeal, lodged on 7 June 2002 in an amended form (iii) were not canvassed or brought forward at the preliminary hearing on 1 July 2002, when Mr Epstein represented the Applicant (iv) were not raised before, or at the time when, the original two-day hearing fixed for 6 March 2003 was adjourned (v) were never the subject matter of any application for fresh evidence, either under Paragraph 8 of the EAT Practice Direction 2002 or at all (vi) were never the subject of any particularisation either as to their materiality or credibility nor the subject of any explanation as to why, pursuant to the principles of Ladd v Marshall [1954] 1 WLR 1489, they could not have been at the Tribunal hearing and/or should now be admitted (vii) even now were not accompanied by any such particulars or even by a draft witness statement. We did not grant the application.
8. Leaving such matters aside, the facts were simply that after being "continuously employed by the Ministry of Defence at an establishment based in the UK from 1982 and … continuously stationed in the UK until his posting to Cyprus in September 1998" (paragraph 8 of the Decision) he was then, as it was put in the amended Notice of Appeal "posted to" Cyprus, from September 1998. He complained of acts of discrimination against him in Cyprus during the period 4 September 1998 to 7 December 1999. All the acts of discrimination thus occurred prior to 16 December 1999, when the amendment to s8(1) took effect, such that the requirement for this Applicant, if he was to establish that he was to be regarded as employed at an establishment in Great Britain, was to avoid a finding that he did his work wholly or mainly outside Great Britain. There were a number of other issues raised before the Tribunal, none of which is now live before us, but in respect of this issue the Tribunal, addressing the period of the discrimination between September 1998 and December 1999 had no difficulty in finding that during that period he did his work wholly [the issue of mainly was unnecessary to consider] outside Great Britain, i.e. in Cyprus.
9. Miss Lucas was a Lance Corporal in the Intelligence Corps, stationed in Northern Ireland from 6 October 1998, where she remained until she left the army in September 2000. The Respondent took an initial point as to the alleged invalidity of the Originating Application, by reference to the absence of a prior complaint under the Service Redress Procedure. This was dealt with at a hearing on 28 August 2001, which resulted in the withdrawal of the Applicant's first Originating Application and a concession by the Respondent that the second was valid, albeit that there seems to have been an unresolved issue about a potential stay: but at a second hearing, on 5 April 2002, a further objection by the Respondent was addressed, namely that as s87(2) of the 1975 Act stated that the Act did not extend to Northern Ireland, this was said to be fatal to the Applicant's claim, which should have been brought in Northern Ireland under the Sex Discrimination (Northern Ireland) Order 1976. This was met by the Applicant's reliance on s10 of the 1975 Act, and it was at that stage that the Respondent took the jurisdictional point which is now the subject matter of this appeal, as a result of which the Tribunal first of all found at that hearing on 5 April that "the Tribunal has no jurisdiction to hear the merits of this claim if it is satisfied that the Applicant did her work wholly outside Great Britain at the time of the alleged acts of discrimination against her" and subsequently went on, on 19 April 2002, to resolve that issue, in the event against the Applicant. Mr Hogarth QC alleged in his Notice of Appeal that the Respondent was in some way estopped from taken such jurisdictional point because it had not been taken at the outset, and that one hearing had been held, and had ordered the case to be listed for hearing, and the second hearing fixed, before such jurisdictional point was raised. Substantial difficulties stood in Mr Hogarth QC's way, such as were canvassed in Carter v Ahsan EAT/0907/03 (unreported) 24 February 2004, as set out in paragraph 19.2 of my judgment in that case. But in the event it has not been necessary for those arguments to be run or resolved in this case. Mr Hogarth QC in any event sought to pursue on appeal an application for the wasted costs of the second hearing, by virtue of the late taking of the jurisdiction point, an application which was made to the Tribunal on 5 April 2002, and described by it in paragraph 26 of its Decision, handed down on 8 April 2002, as being made "on the understandable basis that the Treasury Solicitor should have dealt with this matter on 28 August last" [i.e. at the first hearing]. In that paragraph the Tribunal went on in concise terms to reject the allegation of estoppel, and then to conclude "that is not to say that the Respondent's conduct of this litigation so far has been wholly free from criticism and that may be raised again at the conclusion of this case". There does not appear to have been a further application for costs at the close of the third hearing when in the event the Respondent was successful. Mr Linden submitted in his skeleton argument that "the question of costs was raised at the hearing of 5 April 2002 but Mr Hogarth's application was refused on permissible grounds … no application was made at the hearing on 19 April 2002 and there was therefore no error of law on the ET's failure to consider any application". We are satisfied that in the event the Tribunal did not exercise its discretion so as to decide whether or not to order the Respondent to pay the Applicant's costs thrown away. If it did exercise that discretion, such exercise plainly offends against Meek v City of Birmingham DC [1987] IRLR 250 in not setting out its reasons, certainly in a situation in which one would expect that, the application having been made on an "understandable basis", an order for costs might well have been made. We are satisfied that by its conduct the Respondent necessitated a wasted hearing, and that the Tribunal erred in not addressing and allowing the application for costs, which we assess in the sum of £1000 plus VAT, i.e. £1175.
10. The facts, so far as Miss Lucas is concerned, are that she joined the army in September 1997, and, after four months basic training, was assigned to the Intelligence Corps for a trade training, which she completed in September 1998. She was then posted to Belfast, where she arrived on 6 October 1998. That was where she was stationed at all material times. She complains of alleged acts of sex discrimination, all of which took place in Northern Ireland between February and September 2000. During her period in Northern Ireland, apart from her annual leave and seven long weekends a year, all of which she took in Great Britain, she came here to attend at training courses. There was a junior NCO course in Scotland lasting for two weeks in March 1999, and at some unspecified date an adventure training course and leadership course in Germany. During the period February to September 2000 she attended on two courses:

10.1 In March 2000 she assisted in a training course at Chicksands in Bedfordshire, the Intelligence Corps Headquarters, for three or four days.

10.2 In April and May 2000 she attended a three-week course at Chicksands.

So far as her intelligence work is concerned this was done wholly in Northern Ireland.

11. It can be seen that so far as concerned the period of alleged discrimination, it all post-dated the amendment of s8(1), effective from 16 December 1999, such that the relevant words are:

"Employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly outside Great Britain."

12. The Tribunal directed itself by reference to the words of Mantell LJ in Carver, although removing the reference to "or mainly" such that the relevant words of Mantell LJ before the Tribunal were that "the Tribunal had to consider where at the time of the alleged discrimination the appellant was wholly … working", and the Tribunal noted, in paragraph 13 of its Decision, that "the importance of the dicta in Carver is that it restricts the time when we have to consider where the applicant did her work to the time of the discrimination".
13. The Tribunal referred to Mr Hogarth's submission that "everything the Applicant did whilst she was in the army was work" (paragraph 15 of its Decision) and in particular (in paragraph 16) that "even if we did not put the matter as high as that, we should nevertheless find that, because she had been on training courses in Great Britain, she did not work wholly outside Great Britain. So long as she came to Great Britain for any part of her employment, she could not work wholly outside it".
14. The Tribunal unanimously found that it had no jurisdiction, in the first of its conclusory paragraphs:

"We have no doubt that the Applicant worked wholly outside Great Britain. The expression used in s10 is "does his work". In common parlance that means the work that the Applicant was employed to do, and could not cover training and other activities ancillary to that work. In our view if a person works as the Applicant had done from October 1998 until September 2000 at one place outside Great Britain, the fact that she returned to Great Britain for her holidays and had in that two years been on courses for five weeks by her being detached from her work to help on one course for three days could not in our view lead to the conclusion that she did anything else than work wholly outside Great Britain, whatever the conditions of her employment in the Army."

15. Rev Gandiya was an army chaplain stationed in Krefeld, Germany, from October 1998. After attending an induction course in Wiltshire in June 1998, and a course at Sandhurst in September and October 1998, he was allocated to 7 Signal Regiment, which was stationed in Krefeld, although he went with it for a time to Kosovo. He complained of alleged acts of discrimination, all in Germany, between March 1999 and August 2000, although for the purpose of this hearing both parties have concentrated entirely on the period subsequent to 16 December 1999, whereafter the amendment to s8(1) was effective, and the issue became, as it had not been prior to that date, whether it could be said that he did his work wholly outside Great Britain. The only material evidence for this purpose was as follows:

15.1 At an unspecified date in 2000, the Applicant took leave of absence to attend, at his own expense, for a period which Miss Eilledge thought might have been two days, at a Black Clergy Retreat in this country. Miss Eilledge pointed to paragraph 5.278 of the Unit Command, Control and Administration manual which reads:

"All chaplains are entitled to attend on duty annual retreats or equivalent spiritual conferences."

The Tribunal recorded in paragraph 10 of its Decision that this visit was "with leave of absence but being at his own expense" but that "the Black Clergy Retreat [was] part of his job as a clergyman".

15.2 In June 2000 the Respondent attended, and officiated at, the funeral in Great Britain of a soldier who was in the Regiment, and thus under his pastoral care, and who had committed suicide in Germany, but was to be buried in Great Britain. Having been so requested by the relatives of the deceased, he asked for and received permission to attend such funeral, and it is conceded by Mr Linden that the Army funded his trip on this occasion.

15.3 In August 2000 he officiated at the wedding in Great Britain of another soldier. He was at the time on annual leave. He made a "leave and travel" application, describing the "type of leave" as "annual (wedding)", which application was granted.

16. The minority Decision of the Chairman was as follows:

"24. It seems to me that the phrase "does his work" covers work that the Applicant was employed to do. The law would be unjust if for example two applicants had worked outside Great Britain for four years and were alleging discriminatory treatment which took place outside Great Britain. However because one of them, in the course of his employment, had come to the United Kingdom for a few days for training or a disciplinary interview, then that one would have the right to bring a case before a tribunal here but the other would not. I therefore look at the cause of the amendment to the Posted Workers Directive, which gives jurisdiction in respect of workers who are posted to a country. I cannot see that the visits made by the [Applicant] to this country could in any circumstances be described as [a posting]. That to me indicates more than attendance at a course, officiating at a funeral or giving a lecture … I ask myself what is his work? His work is to be Chaplain to the troops in Germany and their families. By analogy could a schoolteacher who was sexually harassed by a male colleague whilst accompanying pupils on the school trip to France for a few days begin proceedings in France? Clearly she could not, she would begin proceedings in Great Britain, because the incident had occurred in connection with the employment at an establishment in Great Britain, and she could not say because of that school trip to France that she did not do her work wholly within Great Britain.

25. It seems to me that Parliament could not possibly have intended to grant rights in Great Britain to people who visited Britain only occasionally, granting them the right to sue their foreign employer in this country. Coming to its logical extent that would mean that a German worker employed by a German firm to work in Germany could bring a case in the British employment tribunals, so long as he had some time, around the time of the discrimination alleged, visited one of his firm's establishment in Great Britain. That clearly cannot be the law. [This Applicant] cannot be said to have been posted to Great Britain at the time.

26. I would therefore hold that the circumstances in which [Rev Gandiya] came to Great Britain were not sufficient to justify the description that [he] did not work wholly outside Great Britain and I would therefore dismiss the case."

17. The members, giving the majority decision, decided as follows:

"21. The Oxford English Dictionary defines wholly as "entirely, fully, perfectly, as a whole, in its entirety, in full, completely, entirely without limitation or diminution, exclusively, solely, only". That meaning is clear and uncompromising and we see no reason to look past it to the Posted Workers Directive. The legislators are free to adopt directives with varying degrees of enthusiasm and the British Parliament decided to use the word wholly. If they had wished to give a lesser effect within the scope of the directive they were clearly free to do so.

22. We have no doubt that the duties of [the Applicant] which brought [him] to Great Britain were part of their work. It could not therefore be said that [he] did [his] work wholly outside Great Britain, and therefore [his case] to the extent that [it refers] to the time following the change in the law [i.e. 16 December 1999] can proceed."

The Issues

18. The issues for our consideration are as follows:

18.1 What is the time at which the jurisdiction to try the discrimination in an employment tribunal in Great Britain falls to be determined? When is it that whether the applicant works wholly outside Great Britain must be judged?

18.2 What for the purpose of the words "the employee does his work wholly outside Great Britain" is work?

18.3 Is there a de minimis consideration in relation to the construction of the word wholly?

19. It is not sought to be suggested by the Respondent that the Employment Tribunal has no jurisdiction in relation to acts of discrimination abroad. Indeed the provisions of s8 make it wholly likely that the discrimination complained of in relation to one who mainly works abroad (but does not wholly work outside Great Britain) will have occurred abroad. But we must have in mind that there is thus an extrusive or exorbitant and extra-territorial jurisdiction, and one which will involve consideration of acts committed in other countries, in other societies and in other cultural contexts: and one which (always assuming that the respondent in question can be sued in this country by way of a presence here being established) may subject to our jurisdiction a respondent with little or no connection with this country, and in relation to acts which may have wholly been committed abroad. Of course this does not apply on the facts in this case, where the Respondent is a government department, but no one suggests that there is any special position for such a respondent, and our decision must and will be of universal application.

(i) The Time Point

20. The words of Mantell LJ (with whose judgment Beldam and Ward LJJ agreed) are very clear:

"The tribunal had to consider where at the time of the alleged discrimination the appellant was "wholly or mainly" working."

Mr Epstein has submitted that such conclusion in Carver was per incuriam. He submits that the basis of the conclusion of Mantell LJ is the decision in Haughton v Olau Line (UK) Ltd [1986] ICR 357, to which he makes express reference ["see Haughton"] immediately after the above statement, and that there was, on the facts of Haughton and in the judgments of the Court of Appeal in that case, no consideration of time. In Haughton the applicant was a cashier on a ship, and it was held that her work was done mainly outside Great Britain. Neill LJ said at 364:

"Thus s10(1) provides in effect that for the purposes of Part II all employment … is to be regarded as being employment at an establishment in Great Britain "unless the employee does his work wholly or mainly outside Great Britain". No account has to be taken therefore of such matters as the nationality of the parties or of the place where the contract was made or of the proper law of the contract or even (as far as this definition is concerned) of the question whether the work is done at an establishment at all. In my judgment the words "is to be regarded as being" are not there to create a statutory presumption but to provide for an all-embracing definition to cover all employment other than that which is excluded specifically."

21. There was not an issue about the time when the question of where the applicant was working fell to be decided in that case, and it did indeed form no part of the Court of Appeal judgments. But it is clear to us that Mantell LJ did not specify that he was expressly following Haughton when he formulated the words quoted above, nor derived any consideration of time from Haughton nor misunderstood Haughton so as to consider that Haughton did lay down any considerations as to time. He simply said "see Haughton", and he formulated, at Court of Appeal level, a concise and simple test for tribunals to follow.
22. Per incuriam is defined by Lord Donaldson MR in Duke v Reliance Systems Ltd [1988] QB 108 at 113 as follows:

"I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the court had this material, it must have reached a contrary decision … I do not understand the doctrine to extend to a case where, if different arguments had been placed before it, or if different material had been placed before it, it might have reached a different conclusion."

25. This passage is criticised by Bennion in Statutory Interpretation (4^th Edition) at 134, as being too restrictive a dictum, but only because it also ought to apply where "it is at least probable that if the information had been known the decision would have been affected by it". However even if it is permissible to extend per incuriam, so as to include a case where the Court of Appeal misunderstands or misapplies the effect of an earlier decision, there is no conceivable basis on which that can be suggested to have occurred here.
26. Mr Epstein also suggested that the words of Mantell LJ were not part of the ratio in the sense that it cannot be said that the other two judges necessarily agreed with his formulation. We disagree. The conclusion on the sex discrimination claim was concise and compact, and it is plain that Beldam LJ and Ward LJ agreed with the judgment on that aspect (on which alone the appeal succeeded). The words of Lord Hoffmann in HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] 1 AER Comm 349 at para 80 come to mind, when he observed that discussion about the effect and nature of the precise words used by law lords in either agreeing, entirely agreeing or concurring in the words of others amounted to an exercise which had "more in common with reading tea leaves than with legal reasoning".
27. The rival contentions to the formulations of Mantell LJ, as suggested by Mr Hogarth QC and Mr Epstein, are the date at which the contract of employment of the person discriminated against was entered into, so as to consider where the work would be carried out under the contract, or the entire period of the contract, as it was in fact performed. These are in our judgment unsustainable:

25.1 In Carver, Mantell LJ dealt at some length, as we have discussed above, with the issues arising on the question of jurisdiction relating to the claim for unfair dismissal, and he canvassed detailed questions relating to the contract of employment and its construction, and the different approaches which might be adopted by reference to what was there called the "contract test" and the "function" test, which effectively are the two rival alternatives discussed above. However when it came to consideration of the sex discrimination claim, Mantell LJ could not have been clearer, namely that "the position was quite different". There is thus, because not per incuriam, binding authority that this kind of question as to the purpose or effect of contracts ought not to and does not arise in relation to the issue of jurisdiction with regard to discrimination. Mr Hogarth QC, although he adumbrated questions relating to contract in his skeleton, did not develop them in argument, and in any event Mr Linden pointed out in his written submissions in response that since Miss Lucas's sex discrimination claim could not be brought in contract, because (by virtue of s62 of the 1975 Act) a claim of unlawful sex discrimination could only be enforced through a claim under the 1975 Act itself, and not in contract, such questions relating to conflict of laws principles were hardly helpful.

25.2 In any event the basis for the contract argument seems to have its origin in the decision of Deria v General Council of British Shipping [1986] ICR 172. This was a Court of Appeal decision in respect of a claim for race discrimination in relation to recruitment, where the applicant never took up employment, and the claim of discrimination related to the refusal to the applicant of employment, or the deliberate omission to offer him that employment, pursuant to s4(1)(b) of the 1976 Act. As the employment never commenced, it was necessary, in order to see whether the discrimination was "in relation to employment by him at an establishment in Great Britain" to look at the putative contract, i.e. as to where it was contemplated that his work would be carried out. The Court of Appeal concluded that (although in fact the ship did subsequently dock, because it was requisitioned for the purposes of the Falklands Emergency, unexpectedly for three hours in Southampton) it was contemplated at the time when the applicant was refused employment that the vessel would not enter British territorial waters in the course of the voyage for which he was seeking to be engaged, and that s8(1) was to be construed for such purposes as if the words "the employee does his work outside Great Britain" read "the employee does or is to do his work wholly outside Great Britain", and therefore gave a negative answer to the issue of jurisdiction. Clearly where no employment ever ensues, the only time at which the question can be tested is at the inception of the contract. Such a test would be plainly of no assistance at all in relation to the question as to whether a person has been discriminated against in relation to employment by him at an establishment in Great Britain if having begun employment in 1982 (as did Lt Col Saggar) with a view to employment in England, he or she were subsequently to work abroad – say in China - permanently from, say, 1985, until the present day and were to suffer discrimination in China in 2003.

25.3 The position is in our judgment no less absurd if the test were by relation to the whole of the period of employment. Once again, if an employee were employed in 1982 and at that stage worked wholly in Great Britain, if at some later stage he were posted wholly abroad, if the whole of the period of the contract of employment were to be looked at there could never be a time which it could be said that during the period of this contract of employment he has worked wholly outside the United Kingdom, simply by virtue of that period at commencement – or indeed a period in the middle of his employment – or at any rate at some stage long prior to the period when, hypothetically in China, he is discriminated against.

28. The background to the elimination of the word mainly was, as set out above, the Posted Workers Directive. At this stage there is no need for consideration of the Explanatory Note, attached to the 1999 Regulations, to which we refer below. But the consequence was in our judgment certainly not intended to be that, by virtue of the deletion of the word mainly, someone who had at any time over a lengthy period was employed in the United Kingdom could thus acquire the right to sue in respect of discrimination abroad, at a time when he was wholly employed abroad. The purpose of the Directive was plainly that if a worker from elsewhere in the European Union were posted to this country, he/she should be entitled to the right to sue in this country's tribunals for discrimination, and should not be met by the argument that although working here he/she was working mainly abroad.
29. There is not, in our judgment, discrimination in relation to employment at an establishment in Great Britain, if the person being now discriminated against (abroad) is either someone who used to work in Great Britain but has not done so at all for many years, or who was employed under an original contract which contemplated that he would or might be employed in Great Britain but in fact never was.
30. The Carver test thus constitutes perfect good sense. Is it operable and has it survived the amendment of ss8 and 10 by the deletion of the word mainly? Mr Epstein has submitted that it is not operable in relation to three out of the four scenarios in respect of which tribunals are likely to face allegations of discrimination. These are:

28.1 Discrimination at the stage when there is not yet a contract, as in Deria. In this context it is conceded that the test must be taken by reference to the putative contract.

28.2 One-off discrimination, such as by way of one act or incident of sexual or racial harassment on a particular day and at a particular time.

28.3 Discrimination taking place over a period.

28.4 Post-employment discrimination, such as is now, within limits which are yet to be worked out, recognised as available by the House of Lords in Rhys-Harper v Relaxion Group plc and Other Cases [2003] ICR 867, i.e. where for example an allegedly discriminatory post-employment reference is given, where there is found to be a substantive connection between the discriminatory conduct and the employment relationship.

31. Mr Epstein submits that the Carver test does not work in respect of three out of those four scenarii. He accepts that in respect of a continuing period of discrimination, such as was in fact the case in relation to all the three appeals before us, the Carver test can operate perfectly satisfactorily in relation to the question where during that period – e.g. in the case of Lt Col Saggar between September 1998 and December 1999 - he was doing his work. But it is conceded not to be applicable in the case of pre-contractual discrimination. So far as post-employment discrimination is concerned, it would not be appropriate to ask the question as to where the employee was doing his work at the time of the discrimination, because by definition he was by then no longer doing such work. As for one-off discrimination, he submits that it is not a sensible question to ask where the applicant was doing his work at the time of such one-off discrimination, or at least that if that question is asked it will end up with an answer which means that the location of the discrimination will determine jurisdiction, because, by definition, at the time and place of a particular act or event of discrimination, the applicant would be wholly working at that place. Indeed, the Carver test would be even less appropriate in respect of such a one-off act of discrimination if the statutory question were still, as it was at the time of Carver, where the applicant was wholly or mainly working.
32. That very last point itself emphasises that the Carver test is both more sensible and less hidebound than Mr Epstein suggests, and that it does in fact offer a perfectly satisfactory solution in most cases. The Court of Appeal in Deria already had to recognise the special question to be asked in relation to pre-contractual discrimination. It is a perfectly apt variation of the Carver test to ask the question where the applicant was to do his work, where he never in fact entered into a contract at all. We have little doubt that there will similarly need to be an adjustment of the test also once, and if, such cases pursuant to the Relaxion principle begin to be dealt with by the tribunals. One can well see a situation in which, if the post-employment discrimination is said to arise out of a reference, the context will determine what question it is appropriate to ask. Thus if the discriminatory reference in relation to an applicant's employment relates to a period of employment when he was working wholly outside Great Britain, then the applicant would presumably fail the Carver test as adjusted. But just as there has been no difficulty in relation to the facts of these three appeals in analysing the relevant period, because in fact the discrimination is alleged to have taken place over a period and it is in relation to that period that the Carver test can be posed and answered, thus we have no doubt that in the event of a case of solitary one-off discrimination the Carver test can be perfectly adequately operated. Indeed it would appear that Carver itself was or may have been an example of one-off discrimination (although the facts are not entirely clear) if indeed the discrimination was a refusal to allow her time off for pregnancy or childbirth. But in any event the period to be looked at will in our judgment depend upon the context. It will not simply be the day upon which the alleged harassment has occurred. Hence the original, unamended, Carver test as to where the employee was wholly or mainly working is shown to be perfectly apt even in relation to a one-off act, as is the amended test. The alleged act will be set into the context of the employment and it ought not to be difficult, depending upon the facts, to identify a relevant period – since the last move or transfer, since the last promotion, or possibly since the commencement of the contract – to which the Carver test can be applied.
33. In those circumstances we are satisfied that the employment tribunals in these cases asked themselves the correct questions, by reference to the period of time in which the question of where the applicants worked should be answered. So far as concerned Lt Col Saggar, the only possible answer was that he wholly worked in Cyprus during the period, and did not wholly work in Great Britain, such that his application was rightly dismissed, as must be his appeal. The result of the other two appeals depends upon consideration of the two further issues we have identified above.

(ii) Work.

34. The issue arises in the Lucas case by reference to the training courses she attended in England during her posting to Northern Ireland, and in the Gandiya case because of his visits to this country for the retreat, the funeral and the wedding. Did any or all of this amount to the relevant Applicant doing his or her work in Great Britain?
35. Lucas. The Respondent submits that attendance at the training courses was not work. On the finding of the Tribunal, she did all her intelligence work in Northern Ireland. Mr Hogarth QC submits that just as for footballers, or indeed, judges, training courses are work, or attending training courses amounts to the doing of work, and it is not even necessary to refer to the fact that it seems that for at least some part of at least any rate one of the courses Miss Lucas was herself taking the role of trainer. He refers to the definition of working time in the Working Time Regulations 1998, Regulation 2, as follows:

""Working time" in relation to a worker, means –

(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties

(b) any period during which he is receiving relevant training, and

(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement."

36. Mr Linden however turns this very point against Mr Hogarth QC by submitting that, without such a definition for the purposes of the Working Time Regulations, it would appear that training would not be working. Mr Hogarth QC points to the content of the three-week course in April and May 2000, as appears from a document dated 31 July 2000, as indicating that the activities were directly related to her employment, and indeed to improving her performance in that employment. It also seems to be common ground that if the training course was not actually compulsory, it was certainly expected that the Applicant should attend, and there was reference, in the 31 July 2000 document, to indications that attendance at the course was a qualification for promotion.
39. Gandiya. There seems no doubt that attendance at the three matters which are relevant for our purposes, the Retreat, the funeral and the wedding, was neither compulsory nor indeed expected. As set out in paragraph 15 above, Rev Gandiya was entitled to attend the Retreat, and had permission to attend the wedding, which he did in his own time by way of taking annual leave. So far as the funeral is concerned, it is conceded that, although he was not required to carry it out, it was right and proper and indeed part of his duties that he should do so, and his travel was funded for the purpose.
40. It seems clear to us that there can be no hard and fast rule that training cannot amount to work – and indeed in the end Mr Linden did not so contend. It must in our judgment depend upon the facts of each case whether, when an applicant goes on a training course, he is doing his work. It is no answer for Mr Hogarth QC to submit that it would be odd if the Applicant were discriminated against during her time on the course (it being recalled of course that in this case such is not suggested, all the discrimination having taken place in Northern Ireland) and could not bring action in relation to it, even though that discrimination would have taken place in Great Britain. But that is of course no answer - not least because such an applicant might then have a claim by reference to s14 of the 1975 Act, which specifically relates to discrimination in relation to the provision of vocational training - to the question as to whether when attending on the training course she was doing her work. It must be borne fully in mind that on that question hangs, or may hang, the issue of jurisdiction. An employee, otherwise wholly employed abroad, who is being discriminated against abroad on racial or sex grounds, may acquire a right of action, which he or she might not otherwise have, in a British employment tribunal if, during the period of that discrimination, he or she carries out some of his or her work in Great Britain by virtue of attending a training course. Indeed that is what is said, so far as concerns Miss Lucas, but it would apply as much to someone with much less connection with this country and, as we have said above, is employed by a foreign company who simply happens to be capable of being sued here.
41. We conclude that there are three questions which it would be helpful for a tribunal to ask in relation to such matters as a training course or attendance at a conference or for the kind of purposes relevant to Rev Gandiya's application:

37.1 What is the contractual position? Is the applicant doing it because he is required to do it under his contract, or expected to do it, or simply because he is permitted to do it – or permitted to do it in his own time or by taking it as time off?

37.2 What is the content of the work?

37.3 What is its duration and its regularity?

42. Applying these questions to the cases of Miss Lucas and Rev Gandiya:

38.1 It is plain to us that the attendance at the training course was probably compulsory (Mr Linden was without express instruction, but we are prepared to assume so, particularly given that in our judgment it would be wholly inappropriate for the matter to be remitted to the tribunal for what would amount to a fourth hearing on a preliminary point): but in any event that it was expected of the Appellant and would have reflected badly upon her if she had not attended. The content of the course was directly relevant to her employment, and indeed can be said to be her work, in that it would be difficult, we suspect, to see any differentiation to see what she did during the course and what she was doing for the rest of her time, except of course that the course would involve simulated as opposed to real activity. The courses lasted for some time and were plainly regular – there were two of them in the relevant period, and there had been one for two weeks a year earlier.

38.2 We are satisfied that the Tribunal erred in law in the approach it took to the question of whether the Applicant did her work in Great Britain by reference to those courses, and that consequently during the period of the alleged discrimination in Northern Ireland she was not doing her work wholly outside Great Britain. Hence Miss Lucas's appeal must be allowed and her application must be permitted to proceed on its merits at the Employment Tribunal.

38.3 With regard to Rev Gandiya, we are satisfied that neither his attendance at the Retreat nor his officiation at the wedding were the doing of his work within Great Britain. He had no contractual obligation to attend either, nor was such expected of him, nor was it any part of his duties. He simply in the one case had an entitlement, and in the other case had permission. However we are satisfied in relation to his officiation at the funeral that it fell within his duties, and that by visiting this country for the day in order to perform them, he was on that day doing his work in Great Britain.

(iii) De Minimis

43. This issue is not suggested to arise in the case of Miss Lucas, but is firmly run by the Respondent in regard to Rev Gandiya, who, as can be seen above, during the relevant period when, while stationed full time in Germany, he complains of discrimination, namely between March 1999 and August 2000, did his work in Great Britain on one day. Does this mean that during that period he cannot be said to have done his work wholly outside Great Britain, simply by reference to this one day? Of course Rev Gandiya is employed by a British entity, a Government Ministry, and at all times until 1998 worked in or from this country, but that is fortuitous. The same question would arise in respect of someone with little or no connection with this country, viz. someone employed by a foreign company (but which can be sued here) at all times since the commencement of his or her employment, against whom there is discrimination abroad, but who is said to be entitled to the jurisdiction of a British employment tribunal, by reference to one business visit during the relevant period.
44. This is submitted by Mr Linden to be absurd, and it is by reference to absurdity that there can, he submits, be resort had to the Explanatory Note to which we referred in paragraph 26 above. He has referred us to R (Confederation of Passenger Transport UK) v Humber Bridge Board [2004] QB 310, in which Clarke LJ, with whom Auld and Jonathan Parker LJJ agreed, concluded that reference to such an Explanatory Note was in appropriate cases permissible. Reference was made to earlier authorities in which, in relation to primary legislation, resort to such Explanatory Notes was permissible, at least where there was said to be ambiguity or obscurity or a construction which would otherwise lead to absurdity. At paragraph 36 Clarke LJ concluded that "the same or very similar principles must apply to statutory instruments". The purpose would be to identify the mischief which the statute or regulation was intended to prevent, and at paragraphs 47-48 and 52 of his judgment Clarke LJ concluded that it was permissible to use such an Explanatory Note as a legitimate extraneous aid to identify the purpose of an Order.
45. It is in this context that the 1999 Regulations, by which the words "or mainly" were omitted from our two relevant sections, are approached. But for the omission of the words "or mainly" there would be no doubt at all that one visit would not clothe an employment tribunal with jurisdiction. It is the fact that one visit may mean that an applicant cannot be said to work wholly outside the United Kingdom which requires, or at any rate entitles, the court, to look at the purpose of the removal of the words or mainly. We have already canvassed, even without the Explanatory Note, the fact that, as is common ground, the purpose was to protect the posted worker, as set out in paragraphs 6.1 and 26 above. The Explanatory Note to the 1999 Regulations reads as follows:

"These Regulations extend the application of the relevant provisions to workers posted to Great Britain by removing the words "or mainly" from those territorial limits so that employment will henceforth be regarded for the purposes of each of the Acts concerned as being at an establishment in Great Britain provided that the employee does at least part of his work within that country. This will apply even where the work is done mainly elsewhere."

46. This Note emphasises the purpose of the Regulations and gives no support for a proposition that one visit to this country by someone who is working, and indeed being discriminated against, elsewhere in the world, is intended to found jurisdiction to adjudicate on such discrimination.
47. Miss Eilledge persuasively draws our attention to the position in the Directive (which led to the need for the amendments, to further the protection of posted workers) whereby a posted worker (whose definition has been set out in paragraph 6.1 above) may, in certain circumstances (a posting of less than a month (Article 3(3) and (4)) or when the amount of work to be done by the posted worker is not significant (Article 3(5))), be given less than full protection – though not in respect of the right not to suffer discrimination. But, in our judgment, this does not relate to the question of whether a 'one day' visitor is to be put into the position of a posted worker at all.
48. We are satisfied that the deletion of the words "or mainly" was not intended to mean that wholly must mean 100%, or that the doctrine of de minimis cannot or does not apply. Such concept does apply to statutory construction (Bennion at 343) "unless the contrary intention appears". The full maxim is, as Bennion there sets out "de minimis non curat lex". In our judgment, the simple use of the word wholly does not amount to the showing of a contrary intention. It would only be if the removal of the words or mainly was intended to have that effect, and we have already indicated that we do not come to that conclusion. All Counsel appearing for the Applicants have emphasised the important principle that discrimination is harmful, and that any Act seeking to remedy such harm should be construed purposively (see per Templeman LJ in Savjani v Inland Revenue Commissioners [1981] QB 458 at 466-7). However this is also a jurisdictional question relating to the exorbitant jurisdiction of this country with regard to acts almost certainly committed abroad. We conclude that the simple fact that this is a discrimination statute should not oust the ordinary presumption that the concept de minimis can apply.
49. Our conclusion is that it would offend against the de minimis principle to found jurisdiction on a one day visit, by reference to a period of discrimination in relation to employment which was otherwise wholly abroad. In those circumstances the majority erred in failing to take account of de minimis (or perhaps in its approach to the construction of the work done by the Applicant if – as is not clear – the majority had in mind more than the funeral itself), such that the decision of the minority should, for the reasons we have given, prevail. In those circumstances, the appeal by the Respondent in the Gandiya case succeeds.
50. For these reasons:

46.1 The Applicant's appeal in Saggar is dismissed.

46.2 The Applicant's appeal in Lucas succeeds: there will be a payment in respect of costs by the Respondent in relation to the wasted second hearing, and the Applicant's substantive discrimination claim will proceed.

46.3 The Respondent's appeal in Gandiya succeeds, and the claim is dismissed for want of jurisdiction.