In R (Hottak and another) v Secretary of State for Foreign and Commonwealth Affairs and another the High Court held that the territorial scope of the Equality Act 2010 did not extend to interpreters employed by the British Government and working with the British Army in Afghanistan.
The starting point for determining the territorial scope of the Equality Act 2010 (Act) is the Equality and Human Rights Commission's Employment Statutory Code of Practice, which states that the Act applies when there is a: "sufficiently close link between the employment relationship and Great Britain".
The case law on the jurisdictional reach of the Employment Rights Act 1996 (ERA) provides guidance on the potential scope of the Act itself. Serco Ltd v Lawson and other cases (Lawson) identified the following categories of employees who would be protected by the ERA:
- employees ordinarily working in the UK at the time of dismissal;
- employees who move between jurisdictions due to their work but are based in the UK at the time of dismissal; employees who are posted abroad by a British employer to further its business; and
- any other employees not fitting into those categories but with an "equally strong" connection to Great Britain.
Later cases such as Duncombe v Secretary of State for Children, Schools and Families (No 2)(Duncombe) and Ravat v Halliburton Manufacturing and Services Ltd confirmed that the above categories were not exclusive. Duncombe, for example, held that British teachers employed by the British government at European schools in international enclaves and under UK law contracts were entitled to protection under the Act as their contracts had no connection with the countries in which they were working.
Also relevant to this case is the Public Sector Equality Duty, enacted by s.149 of the Act, which requires public authorities such as the British government to have due regard to the need to advance equality of opportunity and to foster good relations between people who share a protected characteristic and people who do not.
The Claimants were Afghan nationals employed by the British government as interpreters working alongside the British army in Afghanistan. Their contracts of employment were governed by Afghan law and they were paid in US dollars. They worked alongside British soldiers and wore the same uniform as them. After a few years they left their jobs because of intimidation and death threats from the local population due to their work.
They brought judicial review proceedings in respect of a benefits package put in place in 2012 for Afghan nationals working with the British army in Afghanistan. Among the benefits provided were relocation assistance. Although neither of the Claimants had benefitted from the scheme as they had left before it was put in place, the basis of their legal challenge was that a more generous scheme had been put in place for equivalent roles in Iraq. They contended that this was direct or, in the alternative, indirect discrimination based on nationality, in contravention of the Act, claiming that the Act protected them as employees of the British government. They also argued that the British government had failed to have due regard to the Public Sector Equality Duty in putting together the scheme and had not carried out an equality assessment under s.149 of the Act before implementing it.
The High Court found that the claimants did not have a sufficient connection to the UK for protection by the Act. They never visited or reported to the UK for the purposes of their employment but worked locally under local contracts. What was more, they had always worked locally; they had not been posted abroad or instructed to move around jurisdictions. They clearly did not fit into any of the Lawson categories. Their only connection with the UK was the fact that they were employed by a British public body. They certainly did not have more of a connection to the UK or UK laws than to Afghanistan and its local law.
The Claimants' position was different to that of the teachers in Duncombe, as those teachers had been employed under UK law contracts and in international enclaves governed by international laws. The teachers had not paid taxes in the countries where they worked. They had more connection to UK laws than the Claimants in this case.
Finally, it was not likely that the ERA was applicable to an employment relationship where the employee was engaged in a foreign country, exclusively to work in a foreign country.
Helpfully, the Court clarified that the territorial scope of the Act was likely to be the same as that of the ERA, and proceeded on this basis. It made sense that they should be aligned as they are both within an Employment Tribunal's jurisdiction, and claims under the two are often brought together. As the scope of the Act was no wider than that of the ERA, and the Claimants would not have qualified for protection under the ERA, the aspects of the claim relying on the Act could not succeed.
However, the Court held that the territorial rules applying to the Act did not extend to the Public Sector Equality Duty, as the duty did not refer specifically to conduct prohibited under the Act, but applied to the functions of public bodies in the places they are carried out. The Government was, therefore, in breach of this duty by not conducting an equality assessment when implementing the benefit scheme inAfghanistan. However, the only remedy available to the Claimants was a declaration confirming the breach.
This case offers useful confirmation that having a British employer cannot, in and of itself, afford employees protection under the Act. There must be more of a connection with the UK and with UK laws e.g. an employment contract governed by UK law; a reporting line into the UK; or receiving payment in pounds or paying British taxes. These examples are only speculative, but it is clear that British employer identity alone will not be enough to establish a sufficient connection.
It is also useful to have clarification that the scope of the Act is the same as that of the ERA; the Court concluded this with slight hesitation as it was concerned that protection of UK employees from discrimination could conflict with local laws, but given that the Court of Appeal has also recently adopted this approach to territorial scope, it is likely to prevail in future.