Discrimination And Unfair Dismissal Territorial Jurisdiction Tests Are The Same

Hottak v (1) Secretary of State for Foreign and Commonweath Affairs (2) Secretary of State for Defence [2016] EWCA Civ 438

Why care

The Equality Act 2010 does not refer to its territorial scope. The Employment Rights Act 1996 (which includes protection for employees against unfair dismissal) is also silent on territorial scope (following the repeal of section 196 in 1999). Case law has since identified a number of categories of employee who are protected under the Employment Rights Act:

Employees who ordinarily work in Great Britain at the time of dismissal Peripatetic employees who move between jurisdictions but have their base in Great Britain at the time of dismissal Expatriate employees posted to another jurisdiction in order to further their British employer's business Employees who, despite not fitting into the categories above, have an "equally strong connection" with Great Britain. (Serco Limited v Lawson (2006))

These categories are examples, and not exclusive. The question in each case is whether, on the facts, that individual has a sufficiently strong connection with Great Britain (Ravat v Halliburton Manufacturing and Services Limited (2012)).

In this case, the Court of Appeal had to consider whether Afghan nationals working for the UK Armed Forces in Afghanistan were entitled to bring claims under the Equality Act in the UK.

The case

Two Afghan nationals worked as interpreters for the UK Armed Forces in Afghanistan. From 2006 to 2009, they worked under Afghan law contracts of employment, were paid in US dollars, and were provided with identical uniforms to the British soldiers with whom they worked. Although their contracts changed after 2009 and they worked at a different base, they continued to work as military interpreters. They and their families suffered intimidation and death threats because of their work and they left their employment. One was granted asylum in the UK, and one remains in Afghanistan (and his identity is protected by an anonymity order).

Afghan nationals were entitled to benefit from the Intimidation Policy and the Redundancy Policy (together called the Afghan Scheme) which offered financial benefits and relocation opportunities (in limited circumstances, to the UK) to those who qualified (in fact, neither of the Claimants did). They argued that the similar Iraq Scheme which had applied to locally-employed Iraqi staff working for the UK Armed Forces was more generous.

The interpreters argued that they...