In its recent decision in British Airways Plc v Mak & Others, the Court of Appeal held that an employment tribunal had jurisdiction to hear age and race discrimination claims by Chinese national, Hong Kong-based former employees of British Airways. Given the global nature of many businesses, this decision serves as a reminder to international employers of the potentially extensive scope of some aspects of UK employment law.
Employees Employed “Partly in Great Britain”
The employees in this case, who were cabin crew members, complained that that they had been compulsorily retired at 45, whereas other cabin crew members working out of London and other bases were not forced to retire at that age. This, they argued, constituted both race and age discrimination. While the employees may have spent as little as 5% of their time working in Great Britain, that time involved carrying out duties which were an integral part of their flight cycle, plus training which was an essential part of their job. The duties included:
- debriefing sessions at the end of each flight cycle;
- landing and take-off duties inside the aircraft; and
- annual compulsory training.
To be protected under the Race Relations Act 1976 and the Employment Equality (Age) Regulations 2006 (which have been subsumed into the Equality Act 2010), an employee had to be “employed at an establishment in Great Britain”. The employees were not literally “employed at an establishment” as they mainly worked inside BA’s aircraft. However, the Employment Appeal Tribunal and subsequently the Court of Appeal held that the employees worked “partly in Great Britain”—this was sufficient for them to fall within the scope of the legislation.
The Equality Act 2010
In Mak, the Court of Appeal was concerned with its jurisdiction to hear claims under discrimination legislation which has now been replaced by the Equality Act 2010. Whether an employment tribunal has the jurisdiction to hear a particular type of claim was set out in the statute itself in the previous legislation. However, the Equality Act 2010 is silent as to the geographical scope of its provisions. This does not mean that Parliament intended to legislate for the whole world—the explanatory notes to the Equality Act 2010 make clear that it falls to the courts to determine whether that legislation applies on a particular set of facts. The Mak case will therefore still be highly relevant in cases brought under the Equality Act 2010.
Where employees work partly in Great Britain, as was the case in Mak, tribunals may be unwilling to adopt a test which would exclude people who were protected against discrimination under the previous regime. It is therefore likely that Mak will be taken into consideration by tribunals determining jurisdiction to hear discrimination claims brought under the Equality Act 2010. Consequently, international businesses with employees who do more than de minimis work in Great Britain need to be aware of the risks of domestic discrimination law applying to them.