British Airways Plc v Mak & Ors

The Court of Appeal dismissed the employer's appeal and held that the Employment Tribunal had jurisdiction to hear the claimants' race and age discrimination complaints. The decisive legal principle was that, for the purposes of s.8(1) of the Race Relations Act 1976 and regulation 10(1) of the Employment Equality (Age) Regulations 2006, employment is to be regarded as being at an establishment in Great Britain if the employee does his or her work wholly or partly in Great Britain. The court concluded that the claimant Ms Mak did perform some duties in Great Britain (including in-flight duties on arrival and departure, debriefing, pre-departure briefings and compulsory training) and that those duties were regular and material rather than de minimis, thereby triggering the deeming provision of s.8(1). The court held that s.8(1) takes priority where it applies and that s.8(4) need not be invoked when subsection (1) is satisfied. The court did not decide the separate point under regulation 10(3)(b) and left that for a case where it is necessary to decide it.

Background and facts:

• Sixteen former Hong Kong–based British Airways cabin crew alleged compulsory retirement at age 45 in circumstances where other international cabin crew based in Britain were not compelled to retire at that age. The lead claimant, Ms Eliza Mak, completed about 28 Hong Kong–London flight cycles a year. She was recruited, based and ordinarily resident in Hong Kong and reported to Hong Kong management on many employment matters.
• Relevant factual connections with Great Britain included: aircraft registered in the United Kingdom and BA's principal place of business in the UK; arrival and departure through British airspace; a c.45 minute off‑aircraft debrief on arrival and a c.58 hour rest period in BA‑arranged London hotels during stopovers; pre‑departure briefings and duties on the aircraft in the United Kingdom; and compulsory training courses in London (a six‑week initial course and periodic refresher courses).

Procedural posture: The Employment Tribunal (ET) held in a reserved judgment that it had jurisdiction under s.8(1) of the Race Relations Act 1976 and regulation 10(1) of the Employment Equality (Age) Regulations 2006 because Ms Mak did her work partly in Great Britain. The Employment Appeal Tribunal (EAT) dismissed BA's appeal. BA appealed to the Court of Appeal.

Nature of the claim and relief sought: The claimants sought to bring discrimination claims (direct and indirect race discrimination and age discrimination) in the Employment Tribunal concerning their compulsory retirement. The preliminary issue before the courts was jurisdiction: whether their employment was to be regarded as being at an establishment in Great Britain.

Issues framed:

1. Whether s.8(1) (employment to be regarded as at an establishment in Great Britain if the employee does his work wholly or partly in Great Britain) applied where the work was performed on international flights and was not done "at an establishment".
2. Whether s.8(4) (treatment of work not done at an establishment) should be applied first, with the consequence that the work is treated as done at the establishment with which it has the closest connection.
3. Whether the duties performed in Great Britain (including debrief, pre‑departure briefings, in‑flight duties on arrival/departure and compulsory training) were properly characterised as "work" and not de minimis.
4. Whether regulation 10(3)(b) (employment on an aircraft registered in the United Kingdom and operated by a person with principal place of business in Great Britain) applied to the age discrimination claim.
5. Whether the Posted Workers Directive affected the interpretation of the jurisdictional provisions.

Court's reasoning and conclusions:

• The Court of Appeal agreed with the ET and EAT that the proper starting point is s.8(1): if an employee does work partly in Great Britain, the employment is to be regarded as being at an establishment in Great Britain. The deeming in s.8(1) is triggered by work done partly in Great Britain and it is not required that that work be done "at an establishment."
• Section 8(4) is an ancillary provision designed to cover cases not captured by s.8(1); it comes into play only if subsection (1) is not satisfied. It does not operate to override or displace subsection (1) where subsection (1) applies.
• The ET's factual findings that Ms Mak did perform work partly in Great Britain were not vitiated by error of law. The tribunal properly counted duties on arrival and departure (including safe embarkation/disembarkation and debrief), pre‑departure briefings and compulsory training in London as work. Although the proportion of time spent in Great Britain was small, it was regular, material and not trivial or de minimis.
• The court considered the Posted Workers Directive point to be sterile on the facts because the domestic wording of s.8(1) did not limit its scope to "posted workers."
• The court did not decide the interpretation of regulation 10(3)(b) and left that issue for a case where it is necessary to decide it.

Appeal dismissed. The Court held that the ET and EAT were correct to find jurisdiction because Ms Mak did some of her work partly in Great Britain; that fact triggers the deeming provision in s.8(1) of the Race Relations Act 1976 (and regulation 10(1) of the Age Regulations) so that her employment is to be regarded as being at an establishment in Great Britain; s.8(4) does not displace subsection (1) where subsection (1) applies; the tribunal's factual findings that the duties in Great Britain constituted work and were not de minimis were open to it; and the point under regulation 10(3)(b) was unnecessary to decide on this appeal.

From a reserved Employment Tribunal pre‑hearing review decision (22 December 2008) finding jurisdiction, to the Employment Appeal Tribunal (appeal dismissed by order dated 20 January 2010; UKEAT/0055/09/SM), and then to the Court of Appeal with permission to appeal granted by Rimer LJ on 20 May 2010.