Appeal No. UKEAT/0101/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2010
	   Judgment handed down on 17 June 2010

Before
THE HONOURABLE MRS JUSTICE COX
(SITTING ALONE)

MR A D NEARY	APPELLANT

(1) SERVICE CHILDREN’S EDUCATION
(2) MINISTRY OF DEFENCE
(3) ST JOHN’S SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A D NEARY
(The Appellant in Person)	
For the Respondent	MISS HELEN BELL
(of Counsel)
Instructed by:
The Treasury Solicitor
Employment Law Team
One Kemble Street
London
WC2B 4TS	

SUMMARY

DISABILITY DISCRIMINATION – Exclusions/jurisdictions

Was the Claimant “ordinarily resident in Great Britain” for the purposes of section 68(2A)(c) Disability Discrimination Act and regulation 10(2)(c) Employment Equality (Age) Regulations 2006, so as to found jurisdiction to determine his complaints of disability and age discrimination?

Employment Tribunal’s decision that he was not was upheld on the evidence. Notwithstanding a mis-direction as to the test to be applied, the decision was plainly and unarguably right on the evidence and facts found. 

THE HONOURABLE MRS JUSTICE COX

1.	In this case Anthony Neary, the Claimant, is appealing against the judgment of Employment Judge Warren, sitting alone at the London Central Employment Tribunal, that he had no jurisdiction to determine the Claimant’s claim that he had been discriminated against on grounds of his disability and his age.

2.	The complaint was of discrimination in failing to shortlist him for a teaching post at a school in Cyprus, for which he had applied in March 2008.

3.	In his reasoned judgment, promulgated on 6 March 2009, the Judge accepted the Respondents’ argument that at the time the Claimant applied for this post, and at the time he was notified that he had not been short listed, he was not ordinarily resident in Great Britain for the purposes of Section 68(2A)(c) of the Disability Discrimination Act 1995, as amended, and Regulation 10(2)(c) of the Employment Equality (Age) Regulations 2006.  The Claimant contends that he was in error in so finding.

4.	The appeal, therefore, raises the meaning of ordinary residence in Great Britain, for the purposes of the disability and age discrimination legislation.  There is apparently as yet no authority directly on this point.

5.	This ground of appeal alone was permitted to proceed to a full hearing following an earlier hearing before Langstaff J, when other grounds of appeal then being raised by the Claimant were dismissed.

6.	The Claimant has appeared in person before me today, as he did below, and I am grateful both to him and to Ms Bell, appearing for the Respondents, for their helpful submissions.

7.	The hearing below on 23 February 2009 was a Pre-Hearing Review, held to determine only whether there was jurisdiction to determine the Claimant’s claim.  The Claimant had not prepared a witness statement but had presented written submissions raising various matters.  At the hearing he gave evidence on oath and was asked questions by the Judge, directed to those matters which were relevant to the question whether he was ordinarily resident in Great Britain at the relevant time.  His evidence, which was unchallenged, together with the contents of the agreed bundle of documents, led the Employment Judge to find the following facts.

8.	Since January 1991 the Claimant has had various employments abroad, interspersed with returns to the United Kingdom.

9.	In April 2007 the Claimant moved to Germany to teach, where he stayed until November 2008.

10.	The Claimant made an application for the post of head of mathematics at St John’s School in Cyprus on 25 March 2008, and accompanied it with a letter of that date.  In both the application form and the letter he indicated that his then present address was Herder Strasse 21, 65239 Hochhein, Germany.  The school at which he was then working was Eichendorffschule, Lorsbacher Strasse, Kelkhein, 65779, Germany, where he taught mathematics

11.	The Claimant returned to the United Kingdom for a couple of months at the end of 2008 and beginning of 2009, after which he returned to Germany.  At the time of the hearing below he had a full-time teaching post in Germany, which he had taken up as from 1 February 2009.

12.	The Claimant has a house in the United Kingdom which is rented out.  When he returned to the UK in November 2008 he himself rented accommodation until he returned to Germany.

13.	The Employment Judge then dealt with the events which had led to the Claim.

14.	By letter dated 7 August 2008 (sent by email) the Claimant was informed that his application for the post in Cyprus had not been successful and that he had not been included amongst the candidates invited for interview.

15.	By an email response of the same date the Claimant suggested that, as a disabled person, he was entitled to an interview.  He signed off with the words “Yours sincerely from sunny Germany.”

16.	The Respondents’ response was to say that he had not met the minimum criteria for the post and was not therefore entitled to a guaranteed interview

17.	Subsequently the Claimant presented his ET1 to the Tribunal on 15 September 2008, in which he gave his address as “Herder Strasse 21, Hochhein AM Main Hessen, Germany 65239.

18.	In further emails to the Respondents’ solicitors, dated 28 November, he complained of what he considered to be rudeness shown towards him in correspondence, which he said was “one of the main reasons I do not relish ever having to come back that country to work.” (a reference to the UK).  He also referred to himself as someone who had spent “MOST of his adult working life as ‘Johnny foreigner’ abroad” and stated that he was moving back to the United Kingdom only temporarily.

19.	The Employment Judge directed himself to the relevant statutory provisions and correctly identified that protection under the Disability Discrimination Act 1995 and the Age Regulations 2006 applies to applicants for employment “at an establishment in Great Britain.”  In the case of applicants for work overseas or “wholly outside Great Britain,” employment at an establishment in Great Britain is treated as being such, if the conditions in Section 68 (2A)(a)-(c) of the Disability Discrimination Act are fulfilled.  In this case the matter in issue was the requirement at (c), that the employee is “ordinarily resident” in Great Britain at the time when he applies for or is offered that employment.

20.	The Judge pointed out that no guidance as to the interpretation of the phrase “ordinarily resident in Great Britain” is provided by either the Disability Discrimination Act or the Age Regulations.

21.	The Respondents submitted that the phrase should be given its ordinary and natural meaning and that the Judge had to consider “where the Claimant usually or normally lived on 25 March 2008 when he applied for the role of head of mathematics.”

22.	The Claimant argued that he maintained a house in the UK, albeit it was rented out as at 25 March 2008; and that as at August 2008 (when told he was not short-listed) he was on a contract to teach in Germany which was due to expire in November 2008.  He further argued that he had retained his car and his UK driving licence.

23.	The Judge’s decision was as follows:
“… The post of mathematics head was for St John's School which is situated in Cyprus.  The claimant would therefore be an overseas worker falling within section 68(2)(b) of the DDA and regulation 10(1)(b) of the Age Regulations.
21	Was the Claimant ordinarily resident in Great Britain, when he applied for the post or when he was rejected for it?  In my view the Claimant was not ordinarily resident in Great Britain, either at the time of the application on 25 March 2008 or at the time that he was informed that he had not been short listed in 7 August 2008.  [At] both of these times, the Claimant was ordinarily resident in Germany, which is clear from his oral evidence and confirmed by the information given in his application form and accompanying letter, his place of work at the time of making the application, and confirmed in his ET1 in September 2008, that the Claimant was still residing at the address in Hessen, Germany, where he was when he made his application for the position.
22	Having so found, 1 find that the Claimant is not protected by the provisions of the Disability Discrimination Act and the Employment Equality (Age) Regulations, he is therefore unable to bring a claim of disability discrimination and/or age discrimination in respect of the Respondents failure to shortlist the Claimant for the position of Head of Mathematics at St John's School, Episkopi.  His claim can proceed no further and is dismissed.”

The appeal
24.	In his amended grounds of appeal the Claimant makes essentially two points.  He contends, first, that the Employment Judge erred in law in concluding at paragraph 21 that the Claimant was ordinarily resident in Germany, in that (i) he failed to give any consideration to whether the Claimant was, in fact, resident in more than one place at the same time, or whether the Claimant could have been ordinarily resident in two countries at the same time; and (ii) he fell into error in trying to ascertain the Claimant’s one true abode.  The Employment Judge therefore erred in failing to apply the correct test for ordinary residence to the facts he found (paragraph 2(c)-(e) of the Amended Grounds).

25.	Secondly, the Judge’s conclusion that the Claimant was, in fact, ordinarily resident in Germany was perverse (paragraph 2 (a), (b) and (f)-(j) of the Amended Grounds).

The Legislative Framework
26.	The Disability Discrimination Act provides, so far as is relevant, as follows:
“4  Employers: discrimination and harassment
(1)	It is unlawful for an employer to discriminate against a disabled person-
(a)	in the arrangements which he makes for the purpose of determining to whom he should offer employment; …” 
… 
(6)	This section applies only in relation to employment at an establishment in Great Britain.”

27.	In respect of age discrimination the same provisions appear at Regulation 7(i)(a) of the Age Regulations, and I do not need to set them out here.

28.	Employment at an establishment in Great Britain is addressed in Sections 68(2) and (2A) of the Disability Discrimination Act, as amended in 2003, and in Regulation 10(1) and (2) of the Age Regulations.  These provisions are both expressed in precisely the same terms, and I shall set out only the Disability Discrimination Act provisions, as follows:
“(2) Employment (including employment on board a ship to which subsection (2B) applies or on an aircraft or hovercraft to which subsection (2C) applies) is to be regarded as being employment at an establishment in Great Britain if the employee-
(a)	does his work wholly or partly in Great Britain; or	
(b)	does his work wholly outside Great Britain and subsection (2A) applies. 
(2A) This subsection applies if-
(a)	the employer has a place of business at an establishment in Great Britain;
(b)	the work is for the purposes of the business carried on at the establishment; and
(c)	the employee is ordinarily resident in Great Britain-
(i)	at the time when he applies for or is offered the employment, or
(ii)	at any time during the course of the employment.”

29.	There was no dispute that the requirements in ss. (2A) (a) and (b) were satisfied, and that this case turned on the meaning of ss. (2A) (c) (i).

30.	No guidance appears in the legislation itself as to the meaning of the words “ordinarily resident”. There is, however, some guidance to be found in the DTI Explanatory Notes for the 2003 Employment Equality (Sexual Orientation) Regulations and  Employment Equality (Religion or Belief) Regulations, which also contain parallel provisions (at Regulation 9) in respect of employment at an establishment in Great Britain.

31.	Paragraphs 105 and 106 of that guidance state, so far as is relevant, as follows:
“105. If the first two criteria are met, the third criterion then requires, in addition, that the employee is ordinarily resident in Great Britain, either at the time of applying for or being offered the job, or at some time during the course of the employment. Ordinary residence is a question of fact, which needs to be considered on case-by-case basis, taking into account all the relevant circumstances.  To be ordinarily resident in Great Britain means that a person is usually living in and based in Britain, year after year.   The fact that a person goes abroad for long periods at a time may not detract from the fact that they remain ordinarily resident in Britain - for example, if a person keeps their main residence in Britain.  Equally, if a person lives from year to year in another country, he is not ordinarily resident in Britain simply by virtue of working temporarily in Britain for a few weeks or months. 
…
106.	 These criteria are broadly similar to those which apply to the question of whether an employee working wholly outside Great Britain may be liable to pay income tax in Great Britain.  So if an employee pays income tax in Britain because he is ordinarily resident in Britain and works for an employer resident in Britain, that will provide an indication that the employee is probably caught by regulation 9(2).  However, the criteria are not identical, and so income tax liability should not be treated as a conclusive indication.”

32.	Paragraph 106 therefore suggests a broad similarity with the provisions governing liability to pay income tax, where the same phrase appears, albeit that income tax liability will not be a conclusive indication.

33.	DTI guidance to the Age Regulations points out, at paragraph 39, that Regulation 10 of those Regulations is identical in terms to Regulation 9 of the Sexual Orientation and Religion or Belief Regulations.

34.	Clearly the meaning of this phrase is a question of law.  It is obviously important that the same phrase, used in the same context, in different sets of statutory provisions all with the same aim of prohibiting discrimination in the workplace, albeit on different grounds, should be interpreted consistently.  It is therefore helpful to see how the phrase has been interpreted in legislation applying in other areas, starting with income tax.

35.	It is not often that the EAT is referred to decisions on the Income Tax Act 1918, but in this case it has proved beneficial.

36.	In Levene v Commissioners of Inland Revenue [1928] AC 217, the House of Lords considered amongst other matters the meaning of the phrase “ordinary residence”.  Viscount Cave thought that it connoted “residence in a place with some degree of continuity and apart from accidental or temporary absences.”

37.	Lord Warrington said as follows at page 232:
“I do not attempt to give any definition of the word "resident." In my opinion it has no technical or special meaning for the purposes of the Income Tax Act. "Ordinarily resident" also seems to me to have no such technical or special meaning.  In particular it is in my opinion impossible to restrict its connotation to its duration. A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess.	If it has any definite meaning I should say it means according to the way in which a man's life is usually ordered.”

38.	In Commissioners for Inland Revenue v Lysaght [1928] AC 234, Viscount Sumner expressed it in this way:
“My Lords, the word ‘ordinarily’ may be taken first.  The Act on the one hand does not say ‘usually’ or ‘most of the time’ or ‘exclusively’ or ‘principally’ nor does it say on the other hand ‘occasionally’ or ‘exceptionally’ or ‘now and then,’ though in various sections it applies to the word ‘resident,’ with a full sense of choice, adverbs like ‘temporarily’  and ‘ actually.’ I think the converse to ‘ordinarily’ is ‘extraordinarily’ and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not ‘extraordinary.'”

39.	Lord Warrington considered it to be:
“…now settled by authority that the question of residence or ordinary residence is one of degree, that there is no technical or special meaning attached to either expression for the purposes of the Income Tax Act.”

40.	In R v Barnet LBC ex parte Shah [1983] 2 AC 309, the House of Lords were considering the entitlement of overseas students to funding under the Education Acts.  Lord Scarman, giving the lead opinion, rejected the argument that Levene and Lysaght were authority only for a specific meaning limited to the Income Tax Acts, considering that “the converse is the case”.

41.	The following passages at pages 342-346 are of particular relevance in this case:
“I, therefore, accept the two tax cases as authoritative guidance, displaceable only by evidence (which does not exist) of a subsequent change in English usage.  I agree with Lord Denning M.R. that in their natural and ordinary meaning the words mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration.’  The significance of the adverb ‘habitually’ is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght’s case, namely residence adopted voluntarily and for settled purposes.
…
I note that in the 19th century bankruptcy case In re Norris (1888) 4 T.L.R. 452 it was accepted that one person could be ordinarily resident in two countries at the same time. This is, I have no doubt, a significant feature of the words' ordinary meaning for it is an important factor distinguishing ordinary residence from domicile.
…
Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.
…
There are two, and no more than two, respects in which the mind of the ‘propositus’ is important in determining ordinary residence.  The residence must be voluntarily adopted.  Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is.  
And there must be a degree of settled purpose.  The purpose may be one; or there may be several.  It may be specific or general.  All that the law requires is that there is a settled purpose.  This is not to say that the ‘propositus’ intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period.  Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode.  And there may well be many others.  All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
…
.. if there be proved a regular habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.
…
Counsel for the local education authorities recognised, and, indeed, submitted, that it is a necessary consequence of the ‘real home’ test, or its variant, that a man can have only one ordinary residence at any one time.  It was said on behalf of Brent and Barnet that this view was supported by the ‘recoupment’ provisions to which I have already referred.  For the reasons already given I derive no assistance from those provisions.   What is important is to note that the test is wholly inconsistent with the nature and ordinary meaning of the words as construed by this House in the two tax cases.
…
By giving the words their natural and ordinary meaning one helps to prevent the growth and multiplication of refined and subtle distinctions in the law's use of common English words.  Nothing is more confusing and more likely to bring the statute law into disrepute than a proliferation by judicial interpretation of special meanings, when Parliament has not expressly enacted any.”

42.	A convenient summary of all these principles is now to be found in a recent decision of Lewison J in Commissioners of HMRC v Lyle Dicker Grace [2008] EWHC 2708 (CH) at paragraph 3, as follows:
“vii)  ‘Ordinarily resident’ refers to a person's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life, whether of short or long duration: R v Barnet LBC ex p Shah [1983] 2 AC 309, 343;
viii)	  Just as a person may be resident in two countries at the same time, he may be ordinarily resident in two countries at the same time: Re Norris (1888) 4 TLR 452; R v Barnet LBC ex p Shah [1983] 2 AC 309, 342;
ix)	It is wrong to conduct a search for the place where a person has his permanent base or centre adopted for general purposes; or, in other words to look for his ‘real home’: R v Barnet LBC ex p Shah [1983] 2 AC 309, 345 and 348;
x)	There are only two respects in which a person's state of mind is relevant in determining ordinary residence.  First, the residence must be voluntarily adopted; and second, there must be a degree of settled purpose: R v Barnet LBC ex p Shah [1983] 2 AC 309, 344;
…
xii)	The purpose, while settled, may be for a limited period; and the relevant purposes may include education, business or profession as well as a love of a place: R v Barnet LBC ex p Shah [1983] 2 AC 309,344;”

43.	In my judgment there is no logical reason why these principles should not apply equally in deciding whether, for the purposes of discrimination legislation in the employment field, an employee was “ordinarily resident” in Great Britain at the times prescribed, in this case in Section 68(2A)(c)(i) and (ii) of the Disability Discrimination Act and the equivalent provisions in the Age Regulations.  Indeed these authorities clearly demonstrate that they should.

44.	Further, whilst it is clear that the focus of the legislation in paragraph (c) (i) is the situation prevailing at a particular point in time (that is when the employee applies for or is offered the employment), applying those principles requires a broader investigation into the “regular order” of the employee’s life as at that time.  This will naturally involve an inquiry into what was happening either side of the relevant date, so as to set it in context.  Employment Tribunals will also need to bear in mind that someone may be “ordinarily resident” in more than one country at the same time.

45.	In this case the Employment Judge was not referred to these authorities.  The Claimant was representing himself.  I note too that the Respondents presented written submissions, which included a submission that the Claimant was not ordinarily resident in Great Britain “because at that time he was living in Germany.”

46.	In these circumstances, and having regard to his reasoning at paragraph 21, it seems to me that the Employment Judge approached this on the basis that he viewed Germany and Great Britain as alternatives, and did not consider whether the Claimant could be said to be “ordinarily resident” in both countries at the same time.  In that way I find he was in error.

47.	Ms Bell, appearing for the Respondents, fairly and realistically did not seek to persuade me otherwise.  However, she submits that given the unchallenged evidence and the findings of fact, this error had no effect upon his decision that this Claimant was ordinarily resident in Great Britain. She submits that his decision on the evidence was not only not perverse, as alleged by the Claimant, but was plainly and unarguably right (Dobie v Burns International Security Services (UK) Limited [1984] ICR 812 CA).  The Tribunal’s judgment should therefore stand.

48.	Her submissions in this respect are essentially the same as those advanced in response to the Claimant’s second ground of appeal, as follows.

49.	The Judge did not limit his consideration of the position to where the Claimant was residing on 25 March, when he submitted his application, or on 7 August, when he was notified that he had not been short listed.

50.	Correctly he looked at the context.  In fact he looked at what had happened to the Claimant since 1991.  He found that he had moved to Germany to teach in April 2007 and had stayed there until November 2008.  After two months in the UK he had then returned to Germany in 2009 in a full-time teaching post.

51.	In addition, the Judge considered whether the Claimant had retained any links with the UK, finding that his house was rented out and that he himself had rented accommodation when he was in the UK between November 2008 and February 2009.

52.	The Judge had regard to the fact that the Claimant’s teaching contract was to expire in November 2008 and that he had retained his car and his UK driving licence.  However, after his job application was rejected, he had written to both the Tribunal and to the Respondents’ solicitors giving an address in Germany and making statements consistent with his move back to the UK being only temporary, which is what transpired.

53.	In his written particulars in support of this ground of appeal Mr Neary contends that the Judge did not give proper weight to the following: the fact that the Claimant had lived in the UK for seven years prior to moving to work in Germany in March 2007; the reason why the Claimant was, in fact, living and working in Germany from March 2007 onwards; the fact that the Claimant owned a property in Great Britain which was rented out on a short-term let; the amount of time that the Claimant had spent in Germany; the fact that his teaching assignment was temporary; and the fact that he was renting accommodation in a country that he had never worked in before.

54.	The question of weight to be attached to particular factors is of course for the fact-finding Tribunal below, and not for this Appeal Tribunal.  None of these particulars are, in my view, persuasive.  On my reading of his judgment the Employment Judge did look at the history and did acknowledge the Claimant’s previous residence in Great Britain, interspersed with various employments abroad.  It was not necessary for him to inquire further into the Claimant’s reasons for living and working in Germany from the spring of 2007 having found that he moved there to teach, which is one of the examples of “settled purpose” referred to in Shah.

55.	Plainly the Judge had regard to the fact that the Claimant’s property in Great Britain was let and remained let.  He also took into account the fact that his teaching assignment at the time was temporary.  There does not appear to have been any precise evidence before him as to the Claimant’s accommodation arrangements in Germany.

56.	Mr Neary contends that the Judge gave too much weight to the fact that he was living in Germany when the alleged act of discrimination took place.  However, the Judge was right to recognise that the legislation required the focus of the inquiry to be the date when the alleged act occurred.

57.	None of these particulars seem to me to begin to surmount the high threshold which must be crossed in order to sustain a challenge to this judgment on the ground of perversity.  On the contrary I consider that Ms Bell is right. On the facts found by the Employment Judge, even if he had been referred to the legal principles I have set out, there was only one conclusion reasonably open to him on applying them to the facts, namely that this Claimant was ordinarily resident in Germany at the time he put in his application for the post and at the time it was rejected.

58.	In my judgment, the evidence points only one way.  The Respondents clearly rely on exactly the same evidence in submitting that the application of the relevant legal principles would inevitably result in the same decision.  For these reasons, and notwithstanding the error of law identified, the Employment Judge’s decision was plainly and unarguably right.  This appeal must therefore be dismissed.