July 29, 2016

Territorial Scope of U.K. Discrimination Legislation

In R (Hottak and another) v The Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438, the Court of Appeal considered the territorial reach of U.K. discrimination legislation.

The claimants were two Afghan nationals employed as interpreters by the British Armed Forces in Afghanistan. Their employment contracts were governed by Afghan law. They brought claims under U.K. discrimination law alleging that certain benefits offered to them were less generous than those offered to their counterparts in Iraq. The Court of Appeal dismissed their claims. It held that the test to determine the territorial scope of U.K. discrimination law is whether a person has a “sufficient connection” with the U.K. and U.K. employment law. At the very least, this requires the employer to be British, but the Court of Appeal highlighted that “something more” is needed to establish a sufficiently strong connection. This will be a question of fact and degree in each case. Here, the facts showed a lack of such a connection; the only connection with the U.K. was the identity of their employer.

U.K. employers with expatriate employees should be mindful of this decision and should seek advice at the earliest opportunity in the event of an employment dispute with any such employees.

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