Ministry of Defence v Reverend Leonard Farirayi Gandiya
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE |
| Judgment Date | 18 August 2004 |
| Neutral Citation | [2004] EWCA Civ 1171 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 August 2004 |
| Docket Number | A1/2004/1408 |
[2004] EWCA Civ 1171
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Keene
A1/2004/1408
The Applicant appeared on his own behalf
The Respondent did not appear and was not represented
This morning Rev Gandiya seeks permission to appeal against a decision of the Employment Appeal Tribunal dated 10th June 2004, whereby an appeal by the Ministry of Defence, the respondent, against a decision of an Employment Tribunal was allowed. The Employment Tribunal had upheld Rev Gandiya's claim that he had been racially discriminated against.
The issue principally concerns the territorial scope of the discrimination legislation and, in particular, the Race Relations Act 1976 ("the 1976 Act"). The applicant is an army chaplain holding the rank of Captain. He is black and of West African origin. He was commissioned into the army in June 1998, but his complaints of racial discrimination relate to a period from March 1999 to August 2000. During that time he was stationed in Krefeld in Germany, although he was deployed also to Kosovo with his regiment for about five to six months in mid to late 1999. The problem, however, that arose in connection with his claim derives from section 4(1) of the 1976 Act, which makes it unlawful for a person "in relation to employment by him at an establishment in Great Britain, to discriminate against another" in various aspects of employment.
What is meant by employment at an establishment in Great Britain is clarified by section 8(1) of the Act. That in its present form now reads as follows:
"For the purposes of this Part ('the relevant purposes'), employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly outside Great Britain."
I say that the subsection now reads like that because in its original form it included, after the word "wholly", the words "or mainly". That was amended in December 1999 by regulations implementing the European Directive 96/71/EC known as the "Posted Workers Directive". On the face of it, the applicant did his work wholly outside Great Britain at the relevant time, that is to say at the time of the alleged discriminatory acts (see the case of Carver v Saudi Arabian Airlines [1999] ICR 991) he was stationed outside this country.
However, the situation was more complicated than that. During the period in question, the applicant visited this country in a clerical capacity on three occasions. At some point in the year 2000 he took leave of absence and attended, at his own expense, a retreat for black clergy. Secondly, in May/June 2000 he officiated in England, at the relatives' request, at the funeral of a Corporal who had been in the applicant's regiment. The army funded this trip. Thirdly, in August 2000 he officiated at the wedding in Great Britain of Captain Farrimond, who again was a member of the same regiment. The applicant so officiated whilst on annual leave.
The Employment Tribunal, by a majority, decided that these matters which brought him to Great Britain were part of his work and consequently that it could not be said that his work was "wholly outside Great Britain". The Chairman of the Tribunal dissented from this.
The EAT, on appeal by the Ministry of Defence, accepted that Rev Gandiya's officiating at the funeral was part of his duties and that on the day in question he was doing his work in Great Britain. However, it held that neither his attendance at the retreat nor his officiating at the wedding amounted to the doing of such work, since his actions formed no part of his duties. They were not expected of him, said the EAT, and he was on leave at the time.
The EAT then applied its mind to the significance of the one day's presence in this country officiating at the funeral which it had held was part of his work. It concluded that the one day's work in Great Britain did not take the case outside the scope of those words "wholly outside Great Britain". It held that the principle of "de minimis non curat lex"applied as a matter of statutory construction. It was not Parliament's intention, it said, when removing the words "or mainly" from section 8(1) to override that principle. The EAT had regard to the purpose of the European directive, to which I have referred, which it saw as seeking to protect a "posted worker", that is to say someone who for a limited period carried out his work in the territory of a member state other than the state in which he normally worked. That, said Burton J (President), was reinforced by the terms of the explanatory note to the 1999 regulations. Consequently, the EAT concluded in paragraph 45 of its decision, as follows:
"… 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...
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The Territorial Scope of Employment Legislation and Choice of Law
...of the anti-discrimination legislation). The appeal in this case is pending before the SupremeCourt. Cf Ministr y of Defence vGandiya[2004] EWCA Civ 1171 (the employee,a soldier stationedin Germany who had spent one day working in Britain, could not bring a claim of racialdiscrimination).46......