Equality Act: What is its territorial scope?

The Equality Act 2010 itself does not set out the territory to which it applies, so this question was put before the Court of Appeal in R (Hottak and another) v The Secretary of State for Foreign and Commonwealth Affairs and another [2016] EWCA Civ 438 who considered whether the High Court had come to the correct conclusion. There are a number of other pieces of legislation (including the ERA 1996) and case law which are of use in determining this issue, which in this particular case involved the question of whether Afghan interpreters employed by the British government and working with British forces in Afghanistan were working within British territory for the purposes of the Equality Act because they were employees of the British government throughout their involvement with British forces. The claimants, amongst other claims, claimed discrimination under sections 39(2) and 29(6) of the Equality Act 2010.

Some guidance on this issue was provided by the case of Serco Limited v Lawson and other cases [2006] UKHL 3 (Lawson) which set out three categories of employee who would qualify for protection:

  • Standard cases where the employee ordinarily works in Great Britain at the time of dismissal.
  • Peripatetic employees where the employees move between jurisdictions but have their base in the UK at the time of dismissal.
  • Expatriate employees, for example, those posted abroad by a British employer to further the business of that employer.

The Court of Appeal upheld the High Court’s finding that whilst the test in Serco v Lawson could be applied to the Equality Act, the claimants did not fall within the territorial scope of the Equality Act, and dismissed the appeal.  This was because they were not ordinarily working in Great Britain, they were not expatriate or peripatetic workers, and otherwise had no physical contact or connection with Great Britain. Their connection was limited to the identity of their employer, the British government. The territorial scope was not to be extended for discrimination cases.

Published: 16 May 2016

Article Sections: Discrimination

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