Court of Appeal confirms that territorial jurisdiction for discrimination claims is the same as for unfair dismissal

01.07.2016

In R (on the application of Hottak) -v- Secretary of State for Foreign and Commonwealth Affairs 2016 the Court of Appeal held that the Equality Act 2010 should not be regarded as having a broader territorial reach than the provisions relating to unfair dismissal in the Employment Rights Act 1996.
The Claimants were two Afghan nationals who had been employed as interpreters to support British Forces in Afghanistan. They sought judicial review of their employee benefits on the grounds that they were less generous than those given to Iraqi nationals similarly employed in Iraq, which they said amounted to direct discrimination because of their nationality.
The Court of Appeal held that discrimination claims should not be regarded as having a wider territorial reach than claims of unfair dismissal under the Employment Rights Act 1996 (the Lawson -v- Serco 2006 test). It was a matter of fact and degree as to whether an employee who worked overseas had a sufficient connection with Great Britain to enable an unfair dismissal claim to be brought in an English employment tribunal. It noted that the Claimants were Afghan nationals who lived in Afghanistan, were recruited in Afghanistan, worked exclusively in Afghanistan, and had contracts which were subject to Afghan law.