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26 August 2015 0 Comments
Posted in Employment, Opinion

Lack of jurisdiction for Afghan Nationals

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In R (on the application of Hottak and another) v Secretary of State for Foreign and Commonwealth Affairs and another, the High Court has held that Afghan interpreters who were working for the British Armed Forces in Afghanistan were not able to bring claims under the Equality Act on the basis of failing the test for territorial jurisdiction set out in the leading case on this area, Lawson v Serco. The Court held that the Claimants were not considered to have closer connections with Britain and British employment law than with Afghanistan and Afghan law.

The Claimants’ argument was that two policies which provided financial benefits and relocation opportunities in their contractual terms were less favourable than those which were offered to members of staff engaged in Iraq. They therefore lodged claims of direct and indirect discrimination in the High Court relying on section 39(2) of the Equality Act (which prohibits discrimination whilst in employment) and section 29(6) of the Equality Act (which prohibits discrimination while carrying out public functions). They asserted that they were both employees of her Majesty’s Government and the Act therefore applied to their employment in Afghanistan.

This argument was rejected. It was noted that the Act does not refer to territorial reach but the Court referred to the principles in Lawson v Serco and the subsequent line of cases and applied these principles to the current facts. The Claimants were not considered to be ex-patriate or peripatetic workers and they had no physical contact or connection with Great Britain at all. Their connection was limited solely to the identity of their employer with which they had contracted to provide translation services. Their contracts were not governed by English law and they could not be considered to have stronger connections with Great Britain than with Afghanistan. Their position could not be distinguished from that of locally employed members of staff in a British Embassy as per Bryant v Foreign and Commonwealth Office. The Claimants’ submission that Parliament had intended the territorial scope of discrimination protection to be wider than that of unfair dismissal was rejected and the claims failed.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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