9th May 2016
The Court of Appeal today dismissed appeals by two interpreters formerly employed by the British Government in Afghanistan. Nicholas Moss led by Jonathan Swift QC (11KBW) acted for the MOD.
The Appellants argued that the Government’s scheme for Afghan staff (comprising separate intimidation and redundancy policies) was discriminatory because it was in some respects less favourable than the single scheme for staff employed during the Iraq conflict. The Court of Appeal unanimously held that (1) the Appellants could not bring a claim under Part 5 (Work) of the Equality Act 2010 because their employment did not have a sufficient connection with the UK to found jurisdiction; (2) the Appellants were not permitted to bring a claim under Part 3 (Public Functions) of the 2010 Act because it did not apply to work–related claims excluded from Part 5, nor did it extend to claims other than in respect of the exercise of public functions in Great Britain; (3) The Afghan scheme was in any event found not to be discriminatory. The reason for the differences between the Afghan and Iraqi schemes was the different operational situation in those countries, not the nationality of the members of staff; (4) The Court would not interfere with the judgment of the Divisional Court which had ordered a declaration but no quashing order in respect of a claim for breach of the public sector equality duty.
Nicholas Moss led by Jonathan Swift QC (11KBW) acted for the MOD and FCO. R (Hottak and AL) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence  EWCA Civ 438.