British Airways Plc v Mak & Ors

Employment has a sufficient connection with Great Britain where the employee performs work there that is more than de minimis. The statutory gateway for work done wholly or partly in Great Britain is considered before the alternative deeming provision for work not done at an establishment. The latter provision is ancillary and identifies the relevant establishment only where the employee cannot otherwise satisfy the statutory gateway. The protection is not confined to posted workers. Training and duties forming an integral and essential part of the employment may constitute work in Great Britain, even where only a small proportion of working time is spent there.

The respondents were Hong Kong-based cabin crew employed by the appellant, a United Kingdom airline. They flew between Hong Kong and London and undertook duties and compulsory training in Great Britain. Following a pre-hearing review, the Employment Tribunal held that the respondents worked partly at an establishment in Great Britain and therefore had jurisdiction over their race and age discrimination complaints.

The appellant appealed, arguing that the work in Great Britain was de minimis, that the statutory provision applied only to posted workers, and that the work should instead be treated as done at the Hong Kong establishment or the establishment with which it had the closest connection.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the respondents worked partly at an establishment in Great Britain for the purposes of section 8(1) of the Race Relations Act 1976 and regulation 10(1) of the Employment Equality (Age Regulations) 2006.
2. Section 8 operates through successive gateways. Employees whose work is wholly or partly at an establishment in Great Britain fall within section 8(1). Section 8(1A) provides an alternative route for employees whose work is wholly outside Great Britain, subject to its cumulative requirements. Section 8(4) is ancillary. It applies only where the employee does not work wholly or partly at an establishment and it is necessary to identify the establishment from which the work is done or with which it has the closest connection.
3. The expression “partly” excludes work that is merely de minimis, but does not require a substantial proportion of the employment to be performed in Great Britain. The Tribunal was entitled to consider both the proportion of work and the nature of the duties. Debriefing, landing duties, reporting and pre-departure duties, and compulsory training were capable of constituting work in Great Britain. The work at London airports was integral to each flight cycle, and the training was essential to the safety-critical employment.
4. The reasoning in Haughton v Olau Line supported treating section 8(4) as an ancillary deeming provision. The Posted Workers Directive may have prompted the legislative amendment, but section 8(1) is not restricted to posted workers.
5. The same reasoning applied to regulation 10(1). It was unnecessary to decide whether work in British airspace or compulsory rest periods constituted work at an establishment, or whether regulation 10(3)(b) supplied an alternative jurisdictional basis.

• Employment Tribunal: Following a pre-hearing review, the Tribunal held that the respondents worked partly at an establishment in Great Britain and that it had jurisdiction over the race and age discrimination complaints.
• Employment Appeal Tribunal: The appeal by British Airways Plc was dismissed. The Tribunal’s jurisdictional finding was upheld.