QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
| The Queen
on the application of
Mohammed Rafi Hottak and AL
|- and -
|(1) The Secretary of State for Foreign and Commonwealth Affairs
(2) The Secretary of State for Defence
Jonathan Swift QC & Nicholas Moss (instructed by the Treasury Solicitor) for the Defendants
Hearing dates: 6 & 7 May 2015
Crown Copyright ©
Lord Justice Burnett:
i) Substantively, the claimants contend that they are excluded from the more generous benefits of the Iraq Scheme on grounds of nationality which amounts to direct, alternatively indirect, discrimination contrary to:
a) Section 39(2) of the 2010 Act, which governs discrimination in relation to employee benefits; or
b) Section 29(6) of the 2010 Act, which governs discrimination in relation to public functions.
ii) Procedurally, the claimants contend that the defendants failed to comply with the Public Sector Equality Duty ["PSED"] contrary to section 149(1) of the 2010 Act.
The claimants additionally argue their discrimination claim under the common law.
The Afghan Scheme
i) 18 months' salary payable in instalments;
ii) The provision of training or education for up to five years with financial support.
Relocation to the United Kingdom formed part of the redundancy package if, subject to some exceptions not material to this claim, the following conditions were met:
iii) The person concerned had been made redundant on or after 19 December 2012 with at least 12 months' service or had left his employment as a result of being seriously injured in combat;
iv) He was engaged in the most dangerous tasks which took him regularly outside protected bases and onto the front line in Helmand;
v) He satisfied the requirements of paragraphs 276BA1 et seq of the Immigration Rules, which included that he was an Afghan national.
Where relocation was authorised, leave to enter the United Kingdom would be granted for five years with the possibility of applying for indefinite leave to remain thereafter. Relocation to the United Kingdom would be underpined by a support and financial package.
The Iraq Scheme
Summary of differences between the two schemes
"28 Application of this Part
2) This Part does not apply to discrimination, harassment or victimisation –
(a) that is prohibited by Part 4 (premises), 5 (work) or 6 (education), or
(b) that would be so prohibited but for an express exception."
It is apparent from the terms of section 28 that the scheme of the 2010 Act contemplates that a person should not be able to rely upon part 3 if he can rely upon the other parts, or would have been able to do so but for an exception found within the applicable part.
"29 Provision of services, etc.
1) A person (a "service-provider") concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.
9) In the application of this section, so far as relating to race or religion or belief, to the granting of entry clearance (within the meaning of the Immigration Act 1971), it does not matter whether an act is done within or outside the United Kingdom.
10) Subsection (9) does not affect the application of any other provision of this Act to conduct outside England and Wales or Scotland.
31 Interpretations and exceptions
4) A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998.
10) Schedule 3 (exceptions) has effect."
"39 Employees and applicants
(1) An employer (A) must not discriminate against a person (B) –
(a) in the arrangements A makes for deciding to whom to offer employment;
(b) as to the terms of which A offers B employment.
(2) An employer (A) must not discriminate against an employee of A's (B) –
(a) as to B's terms of employment;
(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;
(c) by dismissing B;
(d) by subjecting B to any other detriment.
(3) An employer (A) must not victimise a person (B) –
(a) in the arrangements A makes for deciding to whom to offer employment;
(b) as to the terms on which A offers B employment;
(c) by not offering B employment.
(4) An employer (A) must not victimise an employee of A's (B) –
(a) as to B's terms of employment;
(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service;
(c) by dismissing B;
(d) by subjecting B to any other detriment.
(5) A duty to make reasonable adjustments applies to an employer.
(6) Subsection (1)(b), so far as relating to sex or pregnancy and paternity, does not apply to a term that relates to pay –
(a) unless, were B to accept the offer, an equality clause or rule would have effect in relation to the term, or
(b) if paragraph (a) does not apply, except in so far as making an offer on terms including that term amounts to a contravention of subsection (1)(b) by virtue of section 13, 14 or 18.
(7) In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment –
(a) by the expiry of a period (including a period expiring by reference to an event or circumstances);
(b) by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice.
(8) Subsection (7)(a) does not apply if, immediately after termination, the employment is renewed on the same terms."
Schedule 9 governs exceptions to the application of Part 5, but none is of direct relevance for the purposes of this claim.
Territorial Reach of Section 39 of the Equality Act 2010
"As far as territorial application is concerned, in relation to Part 5 (work) and following the precedent of the Employment Rights Act 1996, the Act leaves it to tribunals to determine whether the law applies, depending for example on the connection between the employment relationship and Great Britain … In relation to the non-work provisions, the Act is again generally silent on territorial application, leaving it to the courts to determine whether the law applies."
"As Lord Wilberforce said in Clark v Oceanic Contractors Inc  2 AC 130 at 152 it requires –
'an inquiry to be made as to the persons with respect to whom Parliament is presumed, in the particular case, to be legislating. Who, it is to be asked, is within the legislative grasp, or intendment, of the statute under consideration?'"
"I hesitate to describe such cases as coming within an exception or exceptions to the general rule because that suggests a definition more precise than can be imposed upon the many possible combinations of factors, some of which may be unforeseen. Mr Crow submitted that in principle the test was whether, despite the workplace being abroad, there are other relevant factors so powerful that the employment relationship has a closer connection with Great Britain than with the foreign country where the employee works. This may well be a correct description of the cases in which section 94(1) can exceptionally apply to an employee who works outside Great Britain, but like many accurate statements, it is framed in terms too general to be of practical help. I would also not wish to burden tribunals with inquiry into the systems of labour law of other countries. In my view one should go further and try, without drafting a definition, to identify the characteristics which such exceptional cases will ordinarily have."
Having indicated his support for the formulation advanced by counsel (albeit whilst noting its practical limitations), Lord Hoffmann gave examples of circumstances in which section 94(1) might apply to expatriate employees. Working abroad for a business based in Great Britain would be necessary but not sufficient. It would not be sufficient for the employee to be British, or that he was recruited in Britain. Something more was needed to take the case outside the general rule that "the place of employment is decisive", para 37. The fact that an employee is posted abroad by a British employer for the purposes of the business carried out in Great Britain may provide more, by contrast with working for a business conducted abroad that happens to belong to British owners or is a branch of a British business. The foreign correspondent of a British newspaper would be an example, even though he lived and worked abroad, para 38. The second example he gave was of an expatriate employee of a British employer who was operating within "what amounts for practical purposes to an extra-territorial British enclave in a foreign country", para 39. He considered that covered Mr Botham's circumstances working for the Army in Germany. He thought that Mr Lawson's case was less strong, but it was "unrealistic to regard him as having taken up employment in a foreign community in the same way as if Serco Ltd were providing security services to a hospital in Berlin". On Ascension Island there was no local community. "In practice, as opposed to constitutional theory, it was a British outpost … Although there was a local system of law, the connection between the employment relationship and the United Kingdom was overwhelmingly stronger." Lord Hoffman continued, para 40:
"I have given two examples of cases in which s 94(1) may apply to an expatriate employee: the employee posted abroad to work for a business conducted in Britain and an employee working in a political or social British enclave abroad. I do not say that there may not be others, but I have not been able to think of any and they would have to have equally strong connections with Great Britain and British employment law."
"It is therefore clear that the right will only exceptionally cover employees who are working or based abroad. The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. There is no hard and fast rule and it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given [by Lord Hoffmann], for they are merely examples of the application of the general principle."
The court concluded that the circumstances of these teachers were such that the 1996 Act applied:
"In our view, these cases do form another example of an exceptional case where the employment has such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal. This depends upon a combination of factors. First, as a sine qua non, their employer was based in Britain; and not just based here but the Government of the United Kingdom. This is the closest connection with Great Britain that any employer can have, for it cannot be based anywhere else. Second, they were employed under contracts governed by English law; the terms and conditions were either entirely those of English law or a combination of those of English law and the international institutions for which they worked. Although this factor is not mentioned in Lawson v Serco, it must be relevant to the expectation of each party as to the protection which the employees would enjoy. … Third, they were employed in international enclaves, having no particular connection with the countries in which they happened to be situated and governed by international agreements between the participating states. They did not pay local taxes. The teachers were there because of commitments undertaken by the British government … Fourth, it would be anomalous if a teacher who happened to be employed by the British government to work in the European School in England were to enjoy different protection from the teachers who happened to be employed to work in the same sort of school in other countries." Para 16.
"This very special combination of factors, and in particular the second and third, distinguishes these employees from the "directly employed labour" of which Mrs Bryant was an example. There, the closer analogy was with a British, or indeed any other company, operating a business in a foreign country and employing local people to work there. These people are employed under local labour laws and pay local taxes. They do not expect to enjoy the same protection as an employee working in Great Britain, although they do expect to enjoy the same protection as an employee working in the country where they work. They do, in fact, have somewhere else to go. (It would indeed be contrary to the comity of nations for us to assume that our protection is better than any others'.)"
"27. Mr Cavanagh drew attention to Lord Hoffmann's comment in Lawson, para 37, that the fact that the relationship was "rooted and forged" in Great Britain because the respondent happened to be British and he was recruited in Great Britain by a British company ought not to be sufficient in itself to take the case out of the general rule. Those factors will never be unimportant, but I agree that the starting point needs to be more precisely identified. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. The case of the peripatetic employee who was based in Great Britain is one example. The expatriate employee, all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another.
28. The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: para 36. This was because, as he said in para 36, the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them.
29. But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they were not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional. The question whether, on given facts, a case falls within the scope of section 94(1) is a question of law, but it is also a question of degree. The fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous. Mr Cavanagh said that a rigorous standard should be applied, but I would not express the test in those terms. The question of law is whether section 94 (1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain."
Section 29 of the 2010 Equality Act
Further arguments on discrimination
"Comparison by reference to circumstances
(1) On a comparison of cases for the purpose of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.
These claims are concerned not only with section 13 but with section 19 (indirect discrimination). Section 14 (combined characteristics) is not in play in these claims.
The Public Sector Equality Duty
"149 Public sector equality duty
(1) A public authority must, in exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(7) The relevant protected characteristics are –
(8) A reference to conduct that is prohibited by or under this Act includes reference to –
(a) a breach of an equality clause or rule;
(b) a breach of a non-discrimination rule.
(9) Schedule 18 (exceptions) has effect."
Schedule 18 provides, in relation to the exercise of immigration functions, that section 149(1)(b) does not apply to nationality. We have seen that in exercising public functions there are exceptions relating to immigration which has the result that section 149(1)(a) is also not engaged in relation to immigration decisions dictated by legislation and the rules.
"A public authority in Schedule 19 is subject to the duty imposed by section 149(1) in relation to the exercise of all of its functions unless subsection (4) applies."
Subsection (4) provides:
"A public authority specified in that Schedule in respect of certain specified functions is subject to that duty only in respect of the exercise of those functions."
Mr Justice Irwin