Employment Law Advocates » Blog Archive » The Equality Act 2010

The Equality Bill has been given Royal Assent and is now the Equality Act 2010. However, it will be up to a Minister of the Crown to decide when most of it is brought into force. Depending on which party wins the election, this means that some of it may never be brought into force at all. This particularly includes the more controversial elements of the Act, providing for equal pay audits, positive discrimination and a duty for public bodies to consider socio-economic equality. However, the manifestos are silent on this point.

This article in the Times includes an intriguing comment by Richard Lister of Lewis Silkin, who notes the lack of attention given to the changes to the territorial scope of the legislation. I must confess that I had not been aware of this issue before and I am equally surprised that much more has not been made of it.

Previously, it was possible to claim discrimination if some of the employment takes place in Great Britain, if the employer has a place of business in Great Britain or if the employee is resident in Great Britain for some of the employment. This meant that, for example, it was possible for Darrell Hair, an Australian cricket umpire, to sue the International Cricket Council, an organisation based in Dubai, about an incident that took place at the Oval Cricket Ground in South London. This is clearly wider than is either necessary or desirable, and it does seem to have resulted in Employment Tribunal tourism in at least one instance, but I fear that things have now moved to the opposite extreme with the territorial scope of the current Act.

The problem is that, as explained in paragraph 27 of the Explanatory Note, it will be left to tribunals to determine whether the law applies, expressly following the precedent of the Employment Rights Act 1996. This means that the leading case of Lawson v Serco is likely to apply to the Equality Act as well. However, Lawson is notoriously narrow, excluding virtually all cases where the employment is based overseas, even where both the employer and the employee are based in Great Britain. To make matters worse, Lawson suggests that unfair dismissal can only be claimed if the dismissal takes place within the jurisdiction of the tribunal, from which it would seem to follow that acts of discrimination taking place overseas must be excluded from consideration, even in the case of an employee who is also discriminated against at home.

It could be argued that these people will have a remedy in their country of work but this will only be true in some cases. Local courts in the Middle East, for example, are unlikely to provide them with a remedy. Even in countries which do have their own discrimination laws, employees face the unappealing prospect of having to bring multiple claims in several different jurisdictions, unless Lawson is significantly softened in its application to the Equality Act. Finally, it appears that Lawson does not currently extend to government employees abroad, even where diplomatic immunity can be used to prevent claims from being brought in the host country. This issue was discussed in my post about the Duncombe case, for which leave has now been granted to appeal to the Supreme Court. The opportunity must now be taken to close this loophole.