Posted by Gemma Ospedale, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Territorial Jurisdiction test
In R (on the Application of Hottak and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another, the Court of Appeal has confirmed that employees who work abroad and wished to bring claims under the Equality Act in the UK must satisfy the same territorial jurisdiction test as that established in the House of Lords (as it then was) in Lawson v Serco Limited in relation to unfair dismissal claims under the Employment Rights Act. In doing so, the Court dismissed an appeal against the Divisional Court’s decision that Afghan nationals who were employed by the British Government to work as interpreters for British military forces in Afghanistan could not bring Equality Act claims.
The two Afghan nationals tried to bring claims of discrimination under the Equality Act, arguing that two policies which provided financial benefits and relocation opportunities were less favourable to them than those offered to members of staff who were engaged in Iraq. They lodged claims of direct and indirect discrimination in the High Court relying on Section 39.2, prohibition of discrimination in employment, and Section 29.6, prohibition of discrimination in the exercise of public functions. In doing so they asserted that they were both employees of Her Majesty’s Government and as such the Equality Act applied to their employment in Afghanistan.
In rejecting their contention that the Equality Act applied to their employment, the Divisional Court applied the principles in Lawson v Serco, concluding that, while they carried out a vital function supporting British Forces, their connection with Great Britain was limited to the identity of their employer. They were locally engaged to provide local support and it could not be argued that they had stronger connections with Great Britain and British employment law than with Afghanistan and Afghan law. As such, assuming that the territorial scope of the Equality Act is the same as the Employment Rights Act, the Court considered that it had no jurisdiction to hear the claims.
The interpreters appealed arguing, amongst other things, that Parliament must have intended discrimination protection under the Equality Act to have a wider territorial scope than the Employment Rights Act. This was dismissed by the Court of Appeal. Amongst other points, the Court of Appeal commented that if Parliament had intended the Equality Act to operate on a wider scope it would have said so. Just because they were employed by the British Government as interpreters did not of itself provide a sufficient connection with Great Britain and British employment law to enable them to bring claims.
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