In the recent case of R (Hottak and another) v The Secretary of State for Foreign and Commonwealth Affairs and another [2015] EWHC 1853 (Admin) ("Hottak"), the Court of Appeal found that the territorial jurisdiction of the Equality Act 2010 (the "EA") is the same as that for unfair dismissal.

BACKGROUND

The EA is silent on its jurisdiction limits and there has been a degree of uncertainty as to whether its jurisdictional limits are the same as those for unfair dismissal. In claims for unfair dismissal, the jurisdictional limits have been the subject of a number of judicial decisions. In the leading case, Lawson v Serco [2006] UKHL 3 ("Lawson"), for employees who do not ordinarily work in the UK, "something more" than simply having an employer based in Great Britain is required. Lawson set out certain categories of employees, outside of those that normally work in the UK, that may qualify for protection, namely (i) expatriate employees, (ii) peripatetic employees who have their base in the UK, and (iii) those employees who have an "equally strong connection" with Great Britain. Two later Supreme Court cases (Duncombe v Secretary of State for Childrens Schools and Families (No 2) [2011] ICR 1312 and Ravat v Halliburton [2012] UKSC 1) expanded upon that latter category holding that (i) it was necessary to look at whether there was a stronger connection with Great Britain and British employment law over any other system of law, and (ii) that the connection with Great Britain would have to be sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim.

FACTS

In Hottak, the claimants were Afghan nationals who were interpreters with the British armed forces in Afghanistan. They worked for the British government as locally employed staff ("LES"). They claimed that certain schemes applicable to the Afghani LES subjected the Afghani LES to unlawful discriminatory detriment, contrary to the EA, as they were less generous in comparison to the schemes in place for LES in Iraq.

The key question in the case was whether the English court had jurisdiction to hear it: did the EA extend to Afghan LES?

COURT OF APPEAL DECISION

The Court of Appeal, upholding the decision of the Divisional Court, stated that the reach of the EA should be the same as that in relation to unfair dismissal. The Court of Appeal rejected submissions that because these are discrimination claims, the court should look upon the territoriality issue with greater sympathy than if they were simply unfair dismissal claims. There was no suggestion that anything other than Afghan law applied to the Afghani LES and their contracts. They had no physical connection or contact with Great Britain at all; their only connection to Great Britain was that their employer was the UK Government. Their connection to Afghanistan and Afghan employment law was strongest and therefore the EA did not apply to them.

COMMENT

Hottak provides helpful confirmation that the jurisdictional limits of the EA and unfair dismissal are the same. The case also provides a useful summary of when employees, who do not ordinarily work in the UK, may be able to get protection from UK employment law rules.