Employees who work at least partly in the UK are entitled to rely on
UK legislation to bring race and age discrimination claims.

The Employment Appeal Tribunal (“EAT”) has ruled that when
determining whether an employee works “wholly or partly” in Great
Britain for the purposes of race and age discrimination legislation, it
is required to consider not only the amount of time spent working within
the country but also the nature of the job performed.

“Wholly or partly”

Employees who worked as BA cabin crew brought claims for race and
age discrimination.  In order to establish that a UK employment tribunal
had jurisdiction to hear their claims, it was necessary for the
employees to show that their “employment is to be regarded as being at
an establishment in Great Britain”, that is their work was done “wholly
or partly in Great Britain”.  The employees were based in Hong Kong but
flew between Hong Kong and London up to 28 times a year, staying over in
London in hotels.  Training was also undertaken in London.

The EAT considered that the word “partly” required more than de
minimis working time in Great Britain.  Time spent by the BA employees
on training and duties carried out upon landing, standby time and duties
performed before takeoff amounted to working “partly” at an
establishment in Great Britain.  The duties performed in London could
not be de minimis as they were “both essential and integral to an
industry where safety is paramount”.

Resources

British
Airways Plc v Mak and others UKEAT/0055/09

For further information or to discuss the issues raised, please contact Colina
Greenway (colina.greenway@abbisscadres.com)on +44 (0) 203 051 5711.