In a post-pandemic world which has seen significant technological advances, it is increasingly common for team members to work in different jurisdictions and for employees to divide their working time between different locations. However, this can make it difficult to determine where employees are entitled to bring employment claims in the event of a potential dispute.
In this article we consider the legal tests that an employee must satisfy to bring a claim for discrimination in Jersey under the Discrimination (Jersey) Law of 2013 ("DJL") or Guernsey under the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005 ("SDO") and the incoming Prevention from Discrimination (Guernsey) Ordinance, 2022 (the "New Discrimination Ordinance").
Legal Framework
Jersey
The DJL prohibits discrimination on the protected characteristics of race, sex, sexual orientation, gender reassignment, age and disability.
To bring a claim under the DJL the employee must (a) be required to work wholly or mainly in Jersey or (b) the act of discrimination must have been committed in Jersey.
We are not aware of any cases under the DJL that deal with whether an employee is employed wholly or mainly in Jersey. There are a number of cases in which the Jersey Employment and Discrimination Tribunal (the "Jersey Tribunal") has dealt with the equivalent wording under the Employment (Jersey) Law 2003 (Dan Read has appeared in a number of these) and these decisions are likely to be followed by the Jersey Tribunal given the wording in the DJL is identical. The first question is whether the employee was required by the employer to work in Jersey. If not, there is no jurisdiction under this limb. If so, the Jersey Tribunal then moves on to consider whether the employee was wholly or mainly based in Jersey, which depends on the facts.
In relation to the question of whether the act of discrimination was committed in Jersey, the focus for the Jersey Tribunal should normally be where the act was committed. The only case in Jersey to consider this to date involved the provision of services, and not employment, and in that case the Jersey Tribunal focussed first on where the act took place and then the impact of the act. It involved the loading of cars on to the ferry at Poole, which prevented a disabled passenger from being able to access their car on disembarkation in Jersey. Although the act took place outside of Jersey, given the impact of the act actually occurred in Jersey it was held that the Jersey Tribunal had jurisdiction to hear the claim.
Our view is this provision is likely to apply to employees that are based outside of Jersey provided the relevant act can be shown to have been committed in Jersey or the impact of the act is in Jersey.
Guernsey
The SDO prohibits discrimination on the protected grounds of sex, marital status, gender reassignment, pregnancy and maternity. To bring a claim under the SDO in respect of discriminatory recruitment practices, the perpetrator must be employed at 'an establishment in Guernsey', but there is no requirement for the applicant to be in Guernsey. To bring a claim under the SDO in relation to other discriminatory acts or omissions, the employee who has been discriminated against must be employed at 'an establishment in Guernsey', but there is no need for the perpetrator to be working in Guernsey.
We are not aware of any local case law on the interpretation of the phrase 'at an establishment in Guernsey' but the language in the SDO mirrors the wording of the (now repealed) UK Sex Discrimination Act 1975 and Race Relations Act 1976. We therefore expect that the meaning of the phrase 'at an establishment in Great Britain' under those Acts would be highly persuasive, were a case to be brought before the Guernsey Employment & Discrimination Tribunal (the "Guernsey Tribunal"). Based on UK case law, we expect the Guernsey Tribunal would decide that the perpetrator (for acts relating to recruitment) or the victim (for all other acts) would need to work wholly or partly in Guernsey, for the act of discrimination to come within the scope of the SDO. Whether someone is deemed to be working partly in Guernsey would be a question of fact, and the Tribunal would look at all the circumstances. In some cases, an employee may be able to bring a claim in Guernsey even if they do not work wholly or partly in Guernsey if they could show that their employment has a closer connection with Guernsey than with any other jurisdiction.
The New Discrimination Ordinance – which is largely coming into force on 1 October 2023 with some parts to be implemented at a later stage – prohibits discrimination on the protected grounds of carer status, disability, race, religion or belief and sexual orientation. The New Discrimination Ordinance does not expressly limit its scope to a workplace or establishment in Guernsey, and it will therefore be for the Guernsey Tribunal to determine, in any given case, where a claim can be brought.
The UK Equality Act 2010, on which much of the New Discrimination Ordinance is based, is also silent on the question of territorial scope. The test applied by the British employment tribunals, developed through case law, is whether the employee is ordinarily working in Great Britain or whether the connection between the circumstances of the employment and Great Britain and with British employment law is otherwise sufficiently strong. Factors that are often taken into account in determining the strength of the connection with Great Britain include where the work is carried out, where the employee was recruited, where the employment relationship has been managed from an operational or HR perspective and where the employer and employee are based. It remains to be seen whether the Guernsey Tribunal will apply a similar test, and consider similar factors. The States of Guernsey is expected to publish guidance on the New Discrimination Ordinance in the next couple of months. It remains to be seen whether this guidance will provide any clarification regarding territorial scope.
What this means in practice is that until the SDO is merged with the New Discrimination Ordinance, there are potentially different tests based on what protected grounds are involved. It follows that although the Guernsey Tribunal may join claims under the SDO and the New Discrimination Ordinance (where the complaints relate to the same facts or circumstances) parties will be required to consider the jurisdictional implications for each. Unfortunately, this may result in a duplication in efforts or even one claim being admitted and the other rejected.
Conclusion
There is a risk with employees based abroad but managed in Guernsey or Jersey that they might try to jurisdiction shop, i.e. bring a claim in either their home jurisdiction, or Jersey or Guernsey depending on where they think they can claim the most damages. Similarly, employees based in one of the Channel Islands, but managed from another jurisdiction may be able to look to the courts or tribunals in that jurisdiction to bring a claim.
For example, in the case of an employee working mainly in the UK, but managed by a Jersey based manager, if they were considering a claim in respect of being denied a promotion on grounds of race by their Jersey based manager, they could potentially bring the claim under either the DJL or the discrimination laws in the UK.
Similarly, if a business were recruiting a manager for a role based in Guernsey, and received an application from an individual living in Jersey, the applicant could potentially bring a claim under the Guernsey SDO or the DJL if they were refused employment because of their sex or pregnancy.
Employers should be alert to this risk in a global work environment.
Jurisdiction is a complex area, and it depends very heavily on the relevant facts and the law in your jurisdiction. Where there are potential jurisdiction arguments, we recommend legal advice is taken at an early stage in the tribunal proceedings to consider whether the claims can be struck out due to a lack of jurisdiction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
