UK employers could face discrimination claims by staff based abroad

Employers should be aware that they may be exposed to discrimination claims on the basis of their treatment of staff based abroad, employment experts have warned.

It follows a recent Employment Appeal Tribunal (EAT) decision – British Airways v Mak – which ruled that Hong Kong-based cabin crew could claim race and age discrimination against the airline under UK discrimination laws.

The case concerned British Airways (BA) cabin crew who were based in Hong Kong but flew between the city and London 28 times a year. They effectively spent 5% of their time in the UK, and at the end of each fight they underwent debriefs, followed by a 58-hour rest period in London. The crew also attended compulsory safety training in London on an annual basis for two days each year.

Under UK law, employees can claim discrimination provided they work ‘wholly or partly’ in the UK.

The EAT agreed with the employment tribunal that the time spent training and the duties performed on landing and at take off were ‘work’, since the training was essential in the aviation industry, and take off and landing were integral parts of each flight cycle.

Lisa Patmore, partner at law firm Pinsent Masons, told Personnel Today: “This is a reminder to employers to realise the fact that somebody doesn’t have to be working for the majority of time in the UK to be covered by these things. Don’t just automatically assume they’re not going to be protected.”

A BA spokeswoman could not confirm whether the airline would appeal.

Jo Stubbs, XpertHR employment law editor, said: “One of the arguments put forward was that the time they spent in the UK was so limited it should be disregarded, but the EAT looked at the important nature of what the cabin crew did in London, from a health and safety point of view, and rejected this.

“Employers with similar working, or training, arrangements should be aware that they may be exposed to discrimination claims on the basis of their treatment of staff groups in foreign locations.”

Steve Turner, Unite national officer for civil aviation, said: “Instead of reaching for costly lawyers and hiding behind an appeal, BA must now do the decent thing by this workforce and move rapidly to end this discrimination.”

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