British Airways Plc v Mak & Ors

For Employment Tribunal jurisdiction over discrimination claims, section 8(1) of the Race Relations Act 1976 operates as the first statutory gateway. It is sufficient that the employee does work partly in Great Britain; the work need not be done at an establishment. The fallback deeming rule in section 8(4) is reached only where section 8(1) does not apply. A small proportion of work may suffice where it is regular, crucial to the role and not trivial. Compulsory training may count as work. The jurisdictional provisions are not confined to posted workers. The court left the separate aircraft provision in regulation 10(3)(b) of the Employment Equality (Age) Regulations 2006 undecided.

Sixteen Hong Kong-based international cabin crew members of British Airways challenged compulsory retirement at age 45, alleging race and age discrimination. The Employment Tribunal held at a pre-hearing review that it had jurisdiction because the lead claimant performed work partly in Great Britain. The Employment Appeal Tribunal dismissed British Airways’ appeal on 20 January 2010 under UKEAT/0055/09/SM. British Airways appealed to the Court of Appeal, arguing that the closest-connection deeming provision took priority, that the work done in Great Britain was insufficient, and that the claimants were not posted workers. The central issue was whether the statutory partly-in-Great-Britain gateway conferred jurisdiction.

Disposition. The Court of Appeal unanimously dismissed the appeal. Mummery LJ gave the judgment, with Richards and Aikens LJJ agreeing.

1. Order of the statutory gateways. Section 8(1) of the Race Relations Act 1976 must be considered first. If an employee does work wholly or partly in Great Britain, the statute deems the employment to be at an establishment in Great Britain. The work need not actually be done at an establishment. Section 8(4) is an ancillary fallback provision. It applies where the employment is not brought within section 8(1), and may then deem work to be done at the establishment with which it has the closest connection.
2. Meaning of work partly in Great Britain. The Employment Tribunal made a minor factual mistake in treating rostered standby time as occurring in Great Britain, since it normally took place in Hong Kong. That mistake did not amount to an error of law and would not have altered the result. Compulsory training in Great Britain counted as work because it was relevant to the proper performance of safety duties. Even after discounting time in British airspace and rest periods, the claimant performed work in Great Britain that was regular, crucial to her role and not trivial. The Tribunal was entitled to reach that conclusion.
3. Posted workers. The language of section 8(1) does not restrict the jurisdictional extension to employees based in or posted to Great Britain. The debate about whether the claimants were posted workers was therefore immaterial.
4. Aircraft provision. It was unnecessary to decide the interpretation or application of regulation 10(3)(b) of the Employment Equality (Age) Regulations 2006. That issue was left for a future case in which it could not be avoided. The partly-in-Great-Britain route was sufficient for both the race and age discrimination claims.

• Court of Appeal (Civil Division): Dismissed British Airways’ appeal and upheld the Employment Tribunal’s jurisdiction; [2011] EWCA Civ 184.
• Employment Appeal Tribunal: On 20 January 2010, dismissed British Airways’ appeal from the Employment Tribunal; UKEAT/0055/09/SM.
• Employment Tribunal: At a pre-hearing review promulgated on 22 December 2008, held that it had jurisdiction to determine the discrimination complaints.