British government military employees not covered by the Equality Act
In the case R v Secretary of State for Foreign and Commonwealth Affairs, the High Court had to decide whether Afghan interpreters employed by the British government and working with British forces in Afghanistan could bring discrimination claims under the Equality Act 2010.
The Act does not specify where it applies geographically, but the employment statutory code of practice states that UK discrimination protection occurs when “there is a sufficiently close link between the employment relationship and Great Britain". Case law (Serco v Lawson) has established that to qualify for protection, employees must:
- ordinarily work in Great Britain
- have their base in the UK if they move between countries
- be expatriates (for example, employees posted abroad by a British employer)
- have an ‘equally strong connection’ with Great Britain.
Facts
The claimants in this case were two Afghan nationals, who had worked as interpreters with British forces during the military campaign in Afghanistan, based in Camp Bastion and at the British Embassy in Kabul. From 2006, they worked under local contracts of employment governed by Afghan law and were paid in US dollars. They worked alongside British soldiers and had identical uniforms. From 2009, they continued to work as military interpreters, although at a different base. They (and their families) suffered intimidation and death threats and left their employment as a result. One fled to the UK where he was granted asylum; his colleague remains in Afghanistan.
The claimants brought judicial review proceedings challenging the legality of a British government scheme providing protection and benefits, including relocation opportunities, to Afghan nationals working for British forces in Afghanistan. Neither of the claimants benefited from the scheme as they had left British employment before its commencement date. They complained that similar schemes in place during British operations in Iraq had been more generous, and that this was either direct or indirect discrimination on grounds of nationality. They claimed they were British government employees throughout their time with British forces.
High Court
The High Court held the Afghan interpreters were not covered by the Equality Act even though they were employed by the British government, and could not challenge the Afghan scheme’s legality on the grounds that it was less favourable than similar schemes used in Iraq. They could not be placed in any of the Serco v Lawson categories, but had been locally engaged locally by the British government to provide local support. While they had played a vital role supporting British forces, their connection with Great Britain was limited to the identity of their employer and they did not have a stronger connection with British employment law than with Afghan law.
Comment
After some unsavoury early treatment of Iraqi interpreters, leading to many being refused permission to come to the UK despite being in mortal danger for helping British forces, a scheme was put in place to help. The scheme in Afghanistan was less generous although there are implications that Afghan interpreters were less at risk than the Iraqi ones. Having said that, the only connection the two interpreters had with the UK was the nationality of their employer and that was not enough for their claims to be heard in English courts.
Territorial scope is rarely entirely straightforward and even in this case, which looks like a solid decision, leave has been given to appeal to the Court of Appeal. This means that when assessing whether individuals have English employment rights, all factors (where they work and live; what currency they are paid in, where their managers are based, what the contract states, to name just a few) should be taken into account before coming to a decision.
Paul Mander is a partner and head of employment and Stuart Miller is a trainee at Penningtons Manches
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