3 February 2010
A recent ruling by the Employment Appeal Tribunal (EAT) in the case of BA-v-Mak has clarified what it means for an employee to be employed “partly” in the UK for the purposes of section 8(1) of the Race Relations Act 1976 (Act) and Regulation 10(1) of the Employment Equality (Age) Regulations 2006 (Regulations).
The case was brought against British Airways (BA) by Chinese cabin crew based in Hong Kong. They typically completed 28 flight cycles between Hong Kong and London each year. During their stay in London they performed duties prior to take-off and landing, participated in debriefing sessions and also underwent training.
BA had a policy of retiring its Hong Kong cabin crew at the age of 45. The claimants lodged Employment Tribunal claims for unlawful age and race discrimination. The issue before the EAT was whether the Employment Tribunal had jurisdiction to hear the claims under UK legislation.
The EAT held that “partly” in the Act and the Regulations meant more than a minimal level and the question of whether an employee works “wholly or partly in Great Britain” cannot be determined solely by virtue of the proportion of time spent working in Great Britain. Instead, the Tribunal was right to look at the nature of the job performed.
The decision was that the Claimants worked partly at an establishment in Great Britain. The tasks that they performed at the London airports were an integral part of each flight cycle and the training requirements were essential in an industry where safety is paramount. Their claims in the Employment Tribunal were, therefore, allowed to proceed, despite the fact that they were resident in Hong Kong.
This decision has implications for employers who employ a workforce based overseas. If the overseas employees perform some substantive activities in the UK as part of their routine tasks, they may be covered by UK employment legislation and, consequently, able to pursue claims against their employer through the UK tribunal system.
Hill Dickinson has a wealth of experience in dealing with the full
range of employment and pensions issues. If you have any queries
relating to the above, or any other legal matter, please do not
hesitate to contact us
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