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Bossa v. Nordstress Ltd & others


Employment Appeal Tribunal

Appeal by employee from an industrial tribunal decision dismissing his complaint of unlawful discrimination on the ground of race contrary to s.4 Race Relations Act 1976. The appellant ('B') applied for a job as cabin crew with Alitalia but was refused the chance of employment due to the fact that he was an Italian citizen. B had been refused a job interview by the defendants who recruited for Alitalia because the Italian authorities did not allow the company to take employees of Italian nationality back to Italy. The applicant's application had been dismissed on the ground that s.8(1) Race Relations Act 1976 applies to employment at an establishment in Great Britain and not to work wholly or mainly outside Great Britain. B submitted in the appeal that he had a good claim under Art.48 of the Treaty of Rome and that he should have been allowed to proceed with that claim in the industrial tribunal because the Race Relations Act 1976 failed to give supremacy to Art.48 of the Treaty. B secondly submitted in the appeal that that the jurisdictional provision in s.8 of the Employment Rights Act 1996 would have a disproportionate impact upon migrant workers as opposed to non-migrant workers.
HELD: (1) Art.48 of the EC Treaty provided for freedom of movement of workers within the Community and this entailed the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment. The effect of s.8(1) of the 1976 Act was to deprive the industrial tribunal of jurisdiction to adjudicate on the appellant's complaint as the appellant would have performed none of his duties in Great Britain if he had been engaged. But Art.48 had direct effect in the United Kingdom and could be relied upon directly by individuals. The proposition that Art.48 did not apply to an Italian national seeking work in Italy was absurd. (2) Had B secured the advertised job his base would have been in Italy. (3) It was the duty of the tribunal to override any provision in race discrimination legislation which conflicted with Art.48. (4) The tribunal derived jurisdiction to hear B's complaint under s.54 of the 1996 Act. (5) There was no evidential basis for B's second submission (see above). (6) The case was remitted to the industrial tribunal for hearing on the merits.
Appeal allowed.

[1998] ICR 694,[1998] IRLR 284

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