Employment Update: Sexual harassment/jurisdiction

16 September 2008

Where should an employee who works in different countries for a multi-national employer, bring a harassment claim?

In the recent case of Tradition Securities and Futures SA v X & Y the EAT had to consider a harassment claim under the Sex Discrimination Act 1975 (SDA).

The employees, who were French nationals, had worked for the same employer first for 3 years in Paris and then for 2 years in London. They alleged that they had been the victims of acts of sexual harassment first in Paris and then in London.

The employment tribunal decided that they could bring a claim in a UK tribunal alleging a ‘continuing act’ of harassment extending over the entire period of their employment.

On the wording of the SDA at the time (which has since changed) the employer's appeal was allowed. The claimants could only claim for acts done while employed 'at an establishment in Great Britain'. Even though sexual harassment might be an 'act extending over a period', in this case the claimants could not base their claim at all on events that had occurred in Paris. They could only refer to some of those allegations as background to their claims against the UK company.

Points to note –

  • On the new (since October 2005) wording of the SDA, it may be easier for employees to bring claims based on incidents that occurred in other countries. The employment will be regarded as being ‘at an establishment in Great Britain’ if the employee ‘does his work wholly or partly in Great Britain’.

  • Where employees work entirely outside Great Britain before a transfer here, they will generally be unable to bring a discrimination claim here about events that pre-date their British employment.