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British Airways Plc v. E C N Mak & Others (EAT)


Employment Appeal Tribunal

An employment tribunal had jurisdiction to hear age and race discrimination claims by former employees of an airline, Chinese nationals based in Hong Kong, who had worked partly in Great Britain for the purposes of the Race Relations Act 1976 s.8(1) and the Employment Equality (Age) Regulations 2006 reg.10(1) as they carried out activities in Great Britain which were an integral part of their flight cycle and an essential part of their job.

The appellant employer (B) appealed against a decision of an employment tribunal that it had jurisdiction to hear race and age discrimination claims brought by the respondent former employees (M). M were Chinese nationals who had been employed as cabin crew by B, an airline based in Great Britain. M were based and ordinarily resident in Hong Kong but they flew between Hong Kong and London airports. M's activities in Great Britain included carrying out duties on the aircraft, staying in accommodation at B's expense between flights and attending compulsory training. The tribunal decided that those activities constituted work and that, in accordance with the Race Relations Act 1976 s.8(1), M worked at least partly in Great Britain. B submitted that the tribunal was wrong to find that M did their work partly in Great Britain as their work in Great Britain was de minimis and that M's work should have been treated as having been done in Hong Kong as this was, in accordance with s.8(4), the establishment from which it was done or to which it had the closest connection.

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.

Appeal dismissed.

Counsel for the respondents: Melanie Tether.

LTL 11/2/2010

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