Court of Appeal Upholds Decision that Afghan Nationals Working Abroad not able to Bring UK Discrimination Claim
R (Hottak and another) v The Secretary of State for Foreign and Commonwealth Affairs and another
The Court of Appeal upheld the High Court's finding that two Afghan nationals working as interpreters, employed by the British government and working with British forces in Afghanistan could not bring discrimination claims under UK law.
The Facts
Two Afghan interpreters tried to bring discrimination claims under the Equality Act 2010 (EqA 2010) on the basis that their contracts were on less favourable terms with regard to benefits and relocation opportunities than employees engaged in Iraq. They sought to argue that as employees of the British government, the EqA 2010 applied to their employment in Afghanistan.
We previously reported on the High Court's decision which the claimants sought to appeal.
The Court of Appeal's Decision
The Court of Appeal has upheld the High Court's decision and confirmed that the test in the leading case of Lawson v Serco Ltd (Lawson), which was decided in the context of the Employment Rights Act 1996 (ERA 1996), extended to discrimination claims under the EqA 2010.
Lawson considered that there are potentially four categories of person who will be covered by the ERA 1996:
- those ordinarily working in Great Britain
- peripatetic employees whose base is Great Britain
- expatriate employees in certain circumstances
- those with an equally strong connection to Great Britain and British employment law
This was elaborated upon in a later case which held that the key question is whether there was a 'sufficiently strong connection' with Great Britain.
The Court of Appeal considered that there was nothing to suggest that the principles in Lawson should be relaxed in discrimination cases. This meant that the decision of the High Court, that the appellants could not benefit from protection under the EqA 2010 as they did not fall within any of the categories in Lawson, should stand.
The judge also rejected the appellants' argument that Parliament must have intended the discrimination provisions in Part 5 of the EqA 2010 to have a wider territorial reach because it is 'directed at outlawing discrimination and so concerns matters viewed by this jurisdiction as going to the very essence of man's humanity to man'. It concluded that the EqA 2010 has the same territorial reach of the ERA 1996 and did not apply to the appellants.
Establishing Jurisdiction
Whether an individual's employment is governed, and therefore protected, by British employment law, very much depends on the facts of each case.
For those organisations employing individuals overseas, careful analysis of their connection with Great Britain will be required when assessing whether they benefit from key UK employment rights. In this context it is clear that an individual working abroad for a British employer will need to show a sufficiently strong connection with Great Britain in order for benefit from protection under both the ERA 1996 and the EqA 2010.