In R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438 the Court of Appeal considered the extra-territorial scope of the Equality Act 2010. The claim sought judicial review of a scheme of protection and benefits adopted for locally-engaged Afghan interpreters working for UK Forces which was said to be less generous than one adopted for Iraqi interpreters, and hence discriminatory on racial grounds.
Upholding the judgment of the Divisional Court, the Court of Appeal held that the extra-territorial application of Part 5 of the 2010 Act – as it applies to employees and workers – should be considered through the case law under section 94 of the Employment Rights Act 1996, i.e. the Lawson v Serco line of authority. On the facts, applying those authorities, the 2010 Act did not apply to the claimants. The Court of Appeal also held that Parliament had not intended Part 3 of the 2010 Act – as it applies to public functions – to apply to the extra-territorial effect of public functions. The Court went on to conclude that had it been necessary to do so, it would have dismissed the discrimination claims in any event because an individual within the Iraqi scheme was not a material comparator and the reason why the schemes were different was not because of nationality, but because of the particular context and circumstances of the situation in Afghanistan as opposed to Iraq.
The Court of Appeal also dismissed the appeal against the Divisional Court’s grant of declaratory relief only for a breach of the section 149 PSED, where a full and unchallenged equality impact assessment had been carried out prior to the hearing and had resulted in changes to the scheme.
Jonathan Swift KC and Christopher Knight appeared, with Nicholas Moss, for the Secretary of State.
The judgment can be read here.
