Employment: Clarification of territorial scope of race and age discrimination legislation

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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.