10 May 2016
Ordinarily the ability to bring a claim within the British Courts and Tribunals depends upon what the specific legislative measure says about its application to those who are not based within the jurisdiction. Where the statutory measure is silent, the Court requires to determine what connections need to exist to allow a claim to proceed. For unfair dismissal claims the test was initially set out by the then House of Lords (now Supreme Court) in Lawson v Serco. The principles within that case have been refined in a number of other cases.
In R (on the application of Hottak and anor) v Secretary of State for Foreign and Commonwealth Affairs, (http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2016/438.html), the Court of Appeal in England was asked to determine what test applies in relation to claims under the Equality Act.
Two Afghan nationals worked as interpreters for the British armed forces in Afghanistan. They argued that policies which provided financial benefits and relocation opportunities were less favourable than those offered to members of staff engaged in Iraq. They lodged claims of direct and indirect discrimination in the English High Court.
On first instance the Court found that the English Court had no jurisdiction to hear the claims. The rules established in Lawson v Serco were applied and the Court concluded that, while the interpreters carried out a vital function supporting British forces, their connection with Great Britain was limited to the identity of their employer. As they were locally engaged to provide local support, it could not be said that they had stronger connections with Great Britain and British employment law than with Afghanistan and Afghan law. The Court reasoned that as the territorial reach of the Equality Act is the same as that of the Employment Rights Act, the Court had no jurisdiction to hear the claims.
The interpreters appealed, arguing, among other things, that Parliament must have intended discrimination protection under the Equality Act to have a wider territorial scope.
The Court of Appeal dismissed the appeal. The Court held that if Parliament had intended the Equality Act to operate on a worldwide basis it would have said so. Both Acts are silent on the question of territorial scope. The Court was not prepare to find that this silence meant a ‘subtly nuanced variance of legislative intention as between the two types of case’. The Court rejected the suggestion that the Court should look upon the territoriality problem for discrimination cases with greater sympathy than if it were dealing with an unfair dismissal claim. The mere fact that the interpreters were employed by the British Government did not, by itself, manifest a sufficient connection with Great Britain and British employment law. The interpreters’ connection with Great Britain was insufficiently strong to overcome the general rule that the place of employment is decisive as to jurisdiction.
This case is a useful reminder that employees who are based abroad do not automatically have the right to raise claims in the British Courts and Tribunals. This can be a complex area and as usual expert advice should be sought.
To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.