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British Airways Plc v. ECN Mak & Ors


Court of Appeal

An employment tribunal was right to rule that it had jurisdiction to hear discrimination claims by former employees of an airline as the former employees worked "partly" in Great Britain within the meaning of the Race Relations Act 1976 s.8(1).

The appellant employer (B) appealed against a decision of the Employment Appeal Tribunal (UKEAT/0055/09/SM ) upholding a decision of the employment tribunal that it had jurisdiction to hear discrimination claims brought by the respondent former employees (M).

M were Chinese nationals who were born and ordinarily resident in Hong Kong. They were employed by B, an airline based in Great Britain, as cabin crew flying between London and Hong Kong. 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. M issued proceedings alleging discrimination on the basis they were made to compulsorily retire at the age of 45, unlike other cabin crew working for B. The ET held that it had jurisdiction to hear the discrimination claims as M worked "partly" in Great Britain within the meaning of the Race Relations Act 1976 s.8(1) and the Employment Equality (Age) Regulations 2006 reg.10(1). The decision was upheld on appeal.

B contended that (1) M's work was not done "at an establishment" and as such s.8(1) could not apply and s.8(4) was the applicable provision; (2) M did not work "partly" in Great Britain within the meaning in s.8(1) as their activities were de minimis.

HELD: (1) There was no need or justification for enlisting s.8(4) when s.8(1) fitted the case and deemed M's employment to be at an establishment in Great Britain by reason of the work done by them partly in Great Britain. The process of regarding M's employment as being at an establishment in Great Britain was triggered simply by M doing their work partly in Great Britain. It was not stipulated that their work must actually be done at an establishment. In those circumstances, s.8(4) did not apply. The main purpose of s.8(4) was to cover the case where the employment was not covered by the deeming effect of the process provided for in s.8(1), Haughton v Olau Lines (UK) [1986] 1 W.L.R. 504 considered (see paras 41-42, 45 of judgment). (2) Whilst it was common ground that the ET was wrong on the facts about standby time in the context of where M did their work, that minor factual error did not give rise to an error of law in the judgment as a whole. There was no error of law in the ET's conclusions that M worked partly in Great Britain. Even if the percentage of work done in Great Britain was small M did perform work partly in Great Britain that was not trivial (paras 49-50).

Appeal dismissed.

Counsel for the respondents: Melanie Tether

[2011] ICR 735,[2011] Eq LR 381

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