UK: Discrimination And Unfair Dismissal Territorial Jurisdiction Tests Are The Same

Last Updated: 5 July 2016
Article by Taylor Wessing
Most Read Contributor in UK, January 2017

Hottak v (1) Secretary of State for Foreign and Commonweath Affairs (2) Secretary of State for Defence [2016] EWCA Civ 438

Why care

The Equality Act 2010 does not refer to its territorial scope. The Employment Rights Act 1996 (which includes protection for employees against unfair dismissal) is also silent on territorial scope (following the repeal of section 196 in 1999). Case law has since identified a number of categories of employee who are protected under the Employment Rights Act:

  • Employees who ordinarily work in Great Britain at the time of dismissal
  • Peripatetic employees who move between jurisdictions but have their base in Great Britain at the time of dismissal
  • Expatriate employees posted to another jurisdiction in order to further their British employer's business
  • Employees who, despite not fitting into the categories above, have an "equally strong connection" with Great Britain.

(Serco Limited v Lawson (2006))

These categories are examples, and not exclusive. The question in each case is whether, on the facts, that individual has a sufficiently strong connection with Great Britain (Ravat v Halliburton Manufacturing and Services Limited (2012)).

In this case, the Court of Appeal had to consider whether Afghan nationals working for the UK Armed Forces in Afghanistan were entitled to bring claims under the Equality Act in the UK.

The case

Two Afghan nationals worked as interpreters for the UK Armed Forces in Afghanistan. From 2006 to 2009, they worked under Afghan law contracts of employment, were paid in US dollars, and were provided with identical uniforms to the British soldiers with whom they worked. Although their contracts changed after 2009 and they worked at a different base, they continued to work as military interpreters. They and their families suffered intimidation and death threats because of their work and they left their employment. One was granted asylum in the UK, and one remains in Afghanistan (and his identity is protected by an anonymity order).

Afghan nationals were entitled to benefit from the Intimidation Policy and the Redundancy Policy (together called the Afghan Scheme) which offered financial benefits and relocation opportunities (in limited circumstances, to the UK) to those who qualified (in fact, neither of the Claimants did). They argued that the similar Iraq Scheme which had applied to locally-employed Iraqi staff working for the UK Armed Forces was more generous.

The interpreters argued that they were UK government employees and that the Equality Act should apply. They sought judicial review of a 'failure' by the Secretaries of State to extend to them and other Afghan locally employed staff an assistance scheme like the Iraq Scheme. They alleged that this was because of their nationality and was either direct or indirect discrimination in relation to access to employee benefits or the provision of services in the exercise of a public function.

The High Court rejected their claims, proceeding on the basis that the territorial scope of the Equality Act should be the same as that of the Employment Rights Act. The interpreters did not fall within any of the three principal Lawson categories, leaving only the fourth possibility. Whilst they had a vital role to play supporting British forces, they were locally engaged to provide local support and their only link to Great Britain was the identity of their employer, and it could not be said that they had stronger connections with Great Britain and its law than with Afghanistan. Their position was comparable to that of locally employed staff in a British embassy (as in Bryant v Foreign and Commonwealth Office (2003), where the staff were held to be outside the scope of the Employment Rights Act).

The interpreters appealed to the Court of Appeal, which dismissed the appeal.

The fact that the Equality Act is directed at outlawing discrimination and so concerns matters "going to the very essence of man's humanity to man" does not mean its territorial scope should be looked on with greater sympathy or extended wider than that for unfair dismissal. If Parliament had intended the Equality Act to apply worldwide, it would have said so. Both the Equality Act and the Employment Rights Act are silent as to their territorial scope, and there was no warrant for reading into this "a subtly nuanced variance of legislative intention as between the two types of case".

In this case, the mere fact that the employer was the British government was not sufficient on its own to manifest a sufficient connection with Great Britain and British employment law.

What to take away

The Court of Appeal was clear that the test for territorial jurisdiction should be the same for claims under the Equality Act and the Employment Rights Act.

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.

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