01.07.2010

Helen Bell successful in EAT disability and age discrimination claim

In the case of Mr Anthony Neary v (1) Special Children’s Education (2) MOD and (3) St John’s School the EAT provided guidance as to the circumstances in which an individual was “ordinarily resident” in Great Britain for the purposes of section 68 (2A) of the Disability Discrimination Act and equivalent provisions in the Employment Equality (Age) Regulations 2006 so as to give the tribunal jurisdiction to consider that individual’s claim for direct discrimination on grounds of disability and/or age.

Since January 1991 Mr Neary had had various employments abroad, interspersed with returns to the UK. In March 2008 he applied for the post of Head of Mathematics at St John’s School in Cyprus. At the time he applied for the post and at the time when he was informed that he had not been shortlisted for that post in August 2008 he was living in Germany, having move there to teach in April 2007. He returned to the UK for a couple of months at the end of 2008, before returning to Germany to take up a full-time teaching post in February 2009. Whilst he had retained ownership of a house in the UK, that house was rented out and when he returned to the UK in November 2008 he himself rented accommodation until he returned to Germany. Mr Neary alleged that the Respondents’ decision not to shortlist him for the post of Head of Mathematics at St John’s School was directly discriminatory on grounds of disability and/or age.

At a Pre-hearing Review the Tribunal held that in the circumstances the Claimant was not “ordinarily resident” in Great Britain for the purposes of section 68 (2A) of the Disability Discrimination Act and equivalent provisions in the Employment Equality (Age) Regulations 2006 at the relevant time. Accordingly, the Tribunal held it lacked jurisdiction to deal with his claim.

Upon appeal, the EAT held that although the Tribunal had made an error of law in failing to consider whether the Claimant could be “ordinarily resident” in more than one place at the relevant time, the Tribunal’s decision was plainly and unarguably right on the facts.

After noting that no guidance appeared in the legislation itself as to the meaning of the phrase “ordinarily resident” the EAT went on to state that there was no logical reason why principles developed in the context of the Income Tax Acts and the Education Acts should not equally apply in the employment field. A convenient summary of those principles was to be found in Commissioners of HMRC v Lyle Dicker Grace [2008] EWHC 2708. As a result, it was therefore necessary for Tribunals to bear in mind that someone may be “ordinarily resident” in more than one country at the same time.

Furthermore, the EAT noted that whilst it was clear that the focus of section 68 (2A) (c) (i) (and the equivalent provision in the Age Regulations) was the situation prevailing at a particular point in time (that is when the employee applies for or is offered the employment) applying those principles required a broader investigation into the “regular order” of the individual’s life at that time. This would naturally involve an inquiry into what was happening either side of the relevant date, so as to set it in context. The EAT was satisfied that this was in fact what the Tribunal had done in Mr Neary’s case.