In the case of R (Hottak and another) v The Secretary of State for Foreign and Commonwealth Affairs and another, the Court of Appeal has confirmed that the territorial scope of the Equality Act 2010 is the same as that for claims under the Employment Rights Act 1996. The Court dismissed the Claimants' appeal that a more lenient approach should be applied by the courts towards claimants in discrimination cases.
Background and facts
The decision in the leading case of Lawson v Serco governs the territorial scope of the right not to be unfairly dismissed under the Employment Rights Act 1996 (ERA). Four categories of employee are protected:
- Standard cases where the employee ordinarily works in Great Britain;
- Peripatetic cases where the employee moves between jurisdictions but (typically) has their base in Great Britain;
- Expats who are posted abroad by British employers to further the employer's business; and
- Other expats where there is an equally strong link with Great Britain.
In Hottak, the Claimants were Afghan interpreters employed by the British Government to work locally in Afghanistan in support of British armed forces. They claimed that benefit schemes provided by the British Government were more generous to interpreters in Iraq and that this constituted race discrimination based on nationality. They sought judicial review of the Government's scheme, contending that they were employees of the UK Government and, therefore, covered by the Equality Act 2010.
High Court decision
The High Court held that the territorial scope of the Equality Act 2010 did not cover the Claimants in this case. Although they were employed by the British Government in support of British armed forces, the High Court decided that the Claimants fell outside the four Lawson v Serco categories.
In short, they clearly could not be covered by any of the first three categories and their "link" to Great Britain under the fourth category extended no further than the identity of their employer, the British Government. In reaching its decision, the High Court also rejected the Claimants' submission that the Equality Act 2010 demanded a wider territorial reach than that afforded by the ERA as interpreted in the Lawson v Serco case.
Court of Appeal decision
The Claimants appealed to the Court of Appeal.
They argued that their employment had been sufficiently linked to Great Britain on various grounds, including that:
- They were recruited and line managed by UK military personnel and civil servants;
- Their contracts were drawn up and signed by British military personnel, with matters relating to the Claimants' employment, dismissal and pay being expressly reserved to UK personnel;
- They were paid by the UK Government and were exempt from Afghan income tax; and
- All policy and guidance issues regarding their employment were resolved in the UK.
As part of their appeal, the Claimants had also argued that provisions in other employment-related legislation providing expressly that they were to have effect only within the UK (such as the Working Time Regulations 1998) meant that the contrasting silence in Part 5 of the Equality Act 2010 as to any territorial limitation in its operation was no accident. They argued that Part 5 must have been implicitly intended to have a broader territorial reach, thus reflecting the importance of a general prohibition of discrimination.
However, the Court of Appeal upheld the High Court's decision, agreeing that the territorial scope of the Equality Act 2010 as it applies to employees should be considered through the case law of the ERA i.e. Lawson v Serco.
The Court of Appeal was clear in its judgment that the Claimants are not British citizens: they are Afghan nationals. They lived in Afghanistan, they were recruited in Afghanistan and their employment contracts were governed by Afghan law. They worked exclusively in Afghanistan and there was no UK, international or peripatetic element to their employment.
On the argument submitted by the Claimants that discrimination claims required a more generous interpretation of territorial scope, again this was rejected on the basis that "had that been Parliament's intention, it would have said so".
The decision is to be welcomed in that it confirms that the now-familiar Lawson v Serco test on territorial scope applies to discrimination claims under the Equality Act 2010 in the same way as it does for unfair dismissal claims under the ERA. There is no relaxation of territorial reach in favour of claimants simply because a complaint is one of discrimination.