18 Jul 2016

The Court of Appeal has confirmed that the territorial scope of UK discrimination legislation is no wider than that applicable to unfair dismissal cases. Consequently, it declined to accept discrimination claims made by two British Army interpreters employed in Afghanistan.

The Court of Appeal has confirmed that the territorial scope of UK discrimination legislation is no wider than that applicable to unfair dismissal cases. Consequently, it declined to accept discrimination claims made by two British Army interpreters employed in Afghanistan.

Background

The law regarding the territorial scope of unfair dismissal protection is well established. An employee will typically qualify for such protection against unfair dismissal if their employment has a ‘sufficiently strong connection’ with Great Britain. In addition to employees who ordinarily work in Great Britain, this might include employees who, for example:

  • are ‘peripatetic employees’ – that is, they move between jurisdictions but are based in Great Britain;
  • are ‘expatriate employees’ – that is, they are posted abroad by a British employer to further the business of that employer; or
  • otherwise have an equally strong connection with Great Britain.

However, the territorial scope of discrimination protection under the Equality Act 2010 (EqA 2010) has not been heavily scrutinised.

In R (on the application of Hottak & AL) v The Secretary of State for Foreign and Commonwealth Affairs, the Court was asked to determine whether the territorial scope of discrimination law under EqA 2010 should be applied more widely than the rules which apply to unfair dismissal law.

Mr Hottak and one other anonymous claimant (the Claimants) were employed as interpreters by the British Government in Afghanistan from 2006. They both left their employment at some point before December 2012, after they received death threats by reason of their work.

After leaving their posts, the Government introduced an assistance and relocation scheme, under which Afghan interpreters would be considered for certain pay and benefits. One of the conditions of the scheme was that the interpreters were in employment on 19 December 2012. As the Claimants had already left their employment by this date, they received no benefits.

The Claimants sought to argue that the assistance and relocation scheme was discriminatory on the basis that it was less favourable than a comparable scheme made available to interpreters working in Iraq. It was alleged that the British Government had discriminated against the Claimants on the grounds of their nationality.

The High Court rejected the claims, ruling that the same territorial scope applies to both discrimination and unfair dismissal claims.

In this case, the only connection that the interpreters had to Great Britain was the identity of their employer. Their place of work was in Afghanistan, their employment contracts were governed by Afghan law and they were subject to US tax. These factors all pointed away from the employment relationship having a sufficiently close connection with Great Britain.

The Claimants appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal dismissed the appeal. It confirmed that the territorial scope of English discrimination law was the same as that which applies to unfair dismissal law.

The Claimants argued that, due to the fundamental nature of the rights granted under the EqA 2010, they should be applied with a much wider territorial scope than that applied in unfair dismissal cases. The Court of Appeal rejected this argument and found no evidence to suggest that Parliament intended the EqA 2010 to have a wider territorial reach than other employment laws.

Comment

This decision provides welcome clarification for UK employers who engage employees overseas. In particular, having certainty in this area will allow employers to take better informed decisions around the way their overseas engagements are structured and administrated, with less risk of unforeseen discrimination claims from individuals based in workplaces abroad.

Of course, each case will turn on its facts but it is clear that having a British-based employer is not enough in itself. Something more is needed. The lack of any territorial scope provisions in our discrimination legislation has proved problematic. However, it is now apparent that a ‘sufficiently close connection’ with Great Britain and British employment law is needed, such that Parliament would have regarded it as appropriate for UK-based employment tribunals to deal with a discrimination claim.