Territorial jurisdiction and the Equality Act 2010
Friday 3rd June 2016
A recent Court of Appeal decision has confirmed that the territorial jurisdiction test established in Lawson v Serco Ltd, must also be met under the Equality Act 2010. Further, the CA held that this test must be applied in an equally stringent manner.
A reminder: Lawson v Serco Ltd
Lawson concerned a claim for unfair dismissal brought by Mr Lawson, a security supervisor working on an RAF Base on Ascension Island. The House of Lords’ decision is authority for the general rule that the place of employment is decisive when determining whether the British courts have jurisdiction to hear a claim under the ERA 1996. However, Lawson also provides guidance on when this general rule might be relaxed, for example, where the employee is a peripatetic but based in Britain or is an expatriate posted abroad by a British based employer to work in a British business or in a British enclave.
Claims under the Equality Act 2010
In the recent Court of Appeal case of R (on the application of Hottak and another) v Secretary of State for Foreign and Commonwealth Affairs and another, two Afghan nationals were employed as interpreters for the British Armed forces in Afghanistan. The interpreters, who were employed and lived locally, argued that two policies offering financial benefits and in certain circumstances relocation were discriminatory by reason of nationality. It was alleged that the policies were less generous than the equivalent policies put in place for those engaged in Iraq. They alleged both direct and indirect discrimination under the EqA 2010.
The Divisional Court rejected the Claimants’ contention that the EqA 2010 applied to their employment. Applying the Lawson test, the Court emphasised that the interpreters’ only connection with Great Britain was the identity of their employer. Both the ERA 1996 and the EqA 2010 are silent on the issue of territorial reach and therefore the same principles apply. Consequently, the Court had no jurisdiction to hear the claims.
The Claimants appealed, focusing in particular, though not exclusively, on the intentions of Parliament. They argued that since the purpose of the EqA 2010 is to prohibit discrimination, it focuses on the ‘very essence of man’s humanity to man’ and consequently must have been intended to have a greater territorial reach. The CA did not agree, highlighting as the Divisional Court did, that both the ERA 1996 and the EqA 2010 are silent on the point and there was no basis for assuming a different intention in respect of claims under the EqA 2010 which would require a more sympathetic assessment. Further, the Explanatory Notes to the EqA 2010 state that following the precedent of the ERA 1996, the matter of territorial application will be left to the Employment Tribunals to determine.
The CA was not persuaded by arguments advanced in support of a close connection such as the fact the interpreters were recruited and managed by UK military personnel and civil servants or that they had promised ‘undivided allegiance’ and loyalty to the British Armed Forces. The CA confirmed that being employed by the British Government (or other British employer) is not on its own enough to establish a sufficient connection resulting in an exception to the general rule in Lawson that the place of employment is decisive in establishing jurisdiction.
In reaching its decision the CA emphasised that the interpreters were not British Citizens, they were recruited in and lived/worked exclusively in Afghanistan, their contracts were governed by Afghan law and there was no inter-state agreement that they were to be treated as resident in the UK for any purpose.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.