British Airways plc v. Mak and others
In what circumstances does an employee work 'at an establishment in Great Britain' for the purposes of the Race Relations Act 1976 and the Age Regulations 2006? The UK Supreme Court is due to consider this question in the new term.
The Respondents are Chinese nationals, based and ordinarily resident in Hong Kong, but employed by BA as cabin crew. They worked on long-haul flights, beginning and ending in Hong Kong. However, they also spent periods of time in the UK, including a 45-minute debrief and 56-hour rest period in London hotel accommodation provided by BA. They also underwent training in London, and occasionally undertook tasks for their employers in the UK. They, unlike other BA international cabin crew, were compulsorily retired at the age of 45. They brought claims of race and age discrimination.
At first instance, the ET held that it had jurisdiction to hear the claim, as the claim concerned work which was done ‘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 employers appealed on the grounds that (1) the work was not done 'at an establishment', and as such s 8(1) could not apply; (2) the employees did not work ‘partly’ in Great Britain within the meaning of s 8(1) as their activities were de minimis. The EAT dismissed the appeal.
On appeal to the Court of Appeal, the applicability of s 8(4) and s 8(1) was again argued. The Court of Appeal held, dismissing the appeal, that it was sufficient that the employees did their work in Great Britain. There was no stipulation that the work actually be done at an establishment. Nor was the work which was done de minimis. Accordingly, the ET and EAT had decided correctly: s 8(1) was the relevant provision, and the ET had jurisdiction to hear the claims.
Around one week before the hearing, BA withdrew their appeal. The Court of Appeal's judgment therefore stands.