No jurisdiction over French discrimination

Tradition Securities and Futures SA v X and Y (Employment Appeal Tribunal - 22 July 2008)

X, who was French, was employed by the respondent company in Paris between 2001 and 2004. She then moved to the respondent's London office and worked there until 2006. Y, X's twin sister, was employed only in the London office from 2004 to 2006. Both brought claims in the Employment Tribunal in 2007 alleging sex discrimination. The ET decided that: (i) it had jurisdiction to hear the claim by X in relation to her time in Paris; (ii) the claimants had not waived privilege in respect of notes of meetings with their solicitors which they had referred to in their statements; and (iii) the trial period for oral evidence was limited to eight weeks. The respondent appealed.

The Employment Appeal Tribunal allowed the respondent's appeal on the jurisdiction point. The ET had no jurisdiction to consider X's claim in relation to her time working in France. Notwithstanding this, the ET could, if it chose, allow evidence in relation to the employment in France to be admitted as background material. X argued that the alleged discrimination over the whole period of her employment between 2001 and 2006, partly in France and partly in the UK, amounted to "an act extending over a period", giving the ET jurisdiction over the whole. The EAT rejected this argument. Such a view could result in retrospective jurisdiction being conferred over an act (which was part of a series of acts extending over a period of time) which was not unlawful when it was done. The first claimant, X, argued that the alleged discrimination in France was unlawful under European law at the time it happened. The EAT also rejected this. The French court had jurisdiction over alleged discrimination in Paris.

In relation to (ii), the EAT dismissed the appeal. When the claimants referred to meetings with their lawyers, they did so to indicate their states of mind. They did not describe the contents of the communications. The claimants did not therefore waive the privilege which attaches to such communications. In respect of (iii), the appeal was dismissed. The length of the hearing was a discretionary case management decision for the ET and it had not erred in the exercise of this discretion.

Comment

This case assists in clarifying the ambit of territorial jurisdiction in sex discrimination claims. Where the claimant alleged discrimination in France and again within the UK, the allegations abroad were not justiciable in the English Employment Tribunal. Malcolm Keen, BLM London.

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