The Court of Appeal has upheld the tribunal's decision in the case of British Airways plc v Mak and others that it had jurisdiction to hear age and race discrimination claims brought by Hong Kong-based employees of BA.  Ms Mak and 15 other claimants were all cabin crew on BA flights between Hong Kong and the UK.  They had been recruited in Hong Kong and were ordinarily resident there. They brought claims for age and race discrimination on the basis that they were compulsorily retired at 45, whereas other international cabin crew working out of London were not.

Under the Race Relations Act 1976 and the Employment Equality (Age) Regulations 2006, a tribunal has jurisdiction to hear claims from employees who worked "at an establishment in Great Britain".  An employee is deemed to work at an establishment in Great Britain if they have worked "wholly or partly in Great Britain".  In the event that work is not done at an "establishment", the employee is treated as working at the establishment with which he or she has the closest connection.  The tribunal held that, as the claimant worked partly in London and in UK air space, this was sufficient to establish work "at an establishment in Great Britain".  Although only around 5 per cent of her working time was in Great Britain, it was not 'trivial or trifling' and the role could not be done without it.  The tribunal therefore found that it had jursidiction to hear the claim.

BA argued before the Court of Appeal that, as the Claimant did not work at an "establishment", but in the air, the place of work should be the establishment with which the employee had the closest connection.  This should therefore be Hong Kong.  The Court of Appeal rejected this argument.  There is no need to consider this latter test if it can be established that the employee worked "wholly or partly in Great Britain".  It was not necessary for the claimants' work to actually have been done at an establishment as long as it was done at least partly in Great Britain. The tribunal's decision that the claimants had worked partly in Great Britain was one a reasonable tribunal could have reached on the facts.

Impact on employers

  • This case will be of significance for international employers, who have employees based outwith the UK, but who perform some of their duties here.  Even a very small portion of time spent working in the UK (in this case about five percent) could entitle the employee to bring discrimination proceedings in UK employment tribunals.
  • It is worth noting, however, that this case does not extend to unfair dismissal claims, which are subject to different, and slightly narrower, jurisdictional rules.  Further, the territorial jurisdiction provisions at issue here are not replicated in the Equality Act 2010, which is silent as to its territorial scope. 
  • Whether tribunals interpret the jurisdiction of the Equality Act 2010 in the same way as the Court of Appeal interpreted old discrimination law, or more narrowly in accordance with unfair dismissal provisions, remains to be seen.

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