In order to bring a tribunal claim in this country, employees working abroad have to show a “stronger connection” with Great Britain than the foreign country where they work. In Hottak and AL v Secretary of State for Foreign and Commonwealth Affairs and anor, the Court of Appeal held that this rule applies whether the claim is brought under the Equality Act 2010 or the Employment Rights Act (ERA) 1996.
The two claimants were Afghan nationals who served as interpreters with the British Forces in Afghanistan. As such, they were entitled to benefit from two policies put in place by the Government (known as the Afghan Scheme) which offered financial benefits and relocation opportunities in certain limited circumstances, to locally employed staff.
Arguing that the Afghan Scheme was less generous than an equivalent scheme that had been put in place in Iraq, the two men attempted to pursue claims of direct and indirect race discrimination under part 5 of of the Equality Act 2010, among other things, as part of judicial review proceedings.
In order to establish that the English courts had jurisdiction to hear their case, the claimants argued that the 2010 Act had a wider territorial reach than the provisions relating to unfair dismissal in the ERA..
High Court decision
The High Court decided, however, that it did not have jurisdiction to hear the claim. Applying the decision of the House of Lords in Lawson v Serco Ltd, it held that the men’s contracts were governed by Afghan, not English, law and any connection with Great Britain was limited to the identity of their employer - HM Government.
Although the role they played was a vital one, the reality was that the men were locally engaged to provide local support. The reach of the 1996 Act was therefore unlikely to “embrace an employment relationship in which a person was engaged, albeit by HMG, in a foreign country to work exclusively in that foreign country”. They could not therefore show that they had a closer connection with Great Britain than with Afghanistan.
Decision of Court of Appeal
The Court of Appeal also rejected the argument that the Equality Act should be regarded as having a wider territorial reach than the ERA, holding that if it had been Parliament’s intention for the anti-discrimination provisions in the 2010 Act to operate on a world-wide basis, then it would have said so. As Parliament was silent on the question of territoriality in both statutes, there could be no justification for reading “a subtly nuanced variance of legislative intention as between the two types of case” into this silence.
It was clear from case law that although the claimants had a British-based employer, that was not enough to establish a sufficient connection with Great Britain and British employment law. As the House of Lords made clear in Lawson, “something more is necessary' before such an inference can be drawn. That “something more” could be the fact that the employee was engaged abroad for the purposes (and thus to act as a representative) of a business carried on in Great Britain. That did not apply in this case.
Although it was a question of law as to whether Part 5 of the 2010 Act did or did not apply to the claimants' contracts, it was a question of fact and degree as to whether the connection with Great Britain and British employment law was sufficiently strong to overcome the general rule that the place of employment is decisive. The High Court was therefore correct in this case to conclude that the claimants did not have a sufficiently close connection with Great Britain to bring their claims.