Employment Appeal Tribunal
HELD: Section 8(4) could only be engaged where an employee did not work wholly or partly at an establishment in Great Britain. If the tribunal's finding that M did work partly at an establishment in Great Britain was sustainable, s.8(4) was immaterial. The primary deeming provision in the Sex Discrimination Act 1975 s.10(1) was more restrictive than s.8(1) of the 1976 Act but that did not allow circumvention of the approach that s.10(4) of the 1975 Act, and therefore s.8(4) of the 1976 Act, were ancillary provisions necessary to deal with cases where the identity of a particular establishment was material. Section 10(4) was a further deeming provision and only came into play where an employee could not bring themselves within s.10(1) or s.10(1A), Haughton v Olau Lines (UK) (1986) 1 WLR 504 CA (Civ Div) applied. The critical question was whether the tribunal was entitled to find that M worked partly at an establishment in Great Britain. The tribunal had properly directed itself regarding the law and its conclusion that M were engaged in work when training in Great Britain was permissible, Saggar v Ministry of Defence (2005) EWCA Civ 413, (2005) ICR 1073 considered. Proportions of time spent working in Great Britain and abroad were material when the exclusion provision was employees working wholly or mainly outside Great Britain. That excluded those spending more than 50 per cent of their working time abroad. However, the expression "partly" was self-explanatory and meant more than de minimis. The tribunal was right to look at the nature of the job performed by M. Their activities at the London airports were an integral part of the flight cycle and the training requirements were absolutely essential in an industry where safety was paramount. The tribunal was plainly entitled to conclude that M worked partly at an establishment in Great Britain. Since the Employment Equality (Age) Regulations 2006 reg.10(1) was in identical terms to s.8(1), the tribunal's principal finding under both provisions that M worked partly at an establishment in Great Britain was to be upheld and it was therefore entitled to accept that it had jurisdiction to entertain the claims.
William Meade (Senior Clerk)