Q Can employees working only partly in Britain be protected by British anti-discrimination legislation?
A Yes, in certain circumstances, as our anti-discrimination legislation is worded in such a way as to protect employees who work “wholly or partly in Britain”.
Q What does ‘partly’ mean in this context?
A A recent case in the Employment Appeal Tribunal (EAT), British Airways plc v Mak and others, held that ‘partly’ simply means “more than de minimis“. In Mak, the EAT had to decide whether Chinese cabin crew employed by British Airways (BA) could be said to be employed “partly” in Britain, and whether therefore they were able to bring age and race discrimination claims in the UK against BA relating to their forced retirement and absence of pension.
The Chinese cabin crew lived and were domiciled in Hong Kong. Their work in Britain included: flying 28 return trips to London each year; a 45-minute de-brief in London per trip; a 58-hour rest break in the UK per trip; occasional exceptional London-based duties; a one-off six-week training programme in London at the beginning of the employment; and an annual two-day training course in the UK.
BA sought to argue that cumulatively, this was ‘de minimis’ in the context of the employment as a whole, and that the crew could not be said to be based “partly” in Britain.
The EAT upheld the earlier tribunal’s decision that the cabin crew were employed partly in Britain. The EAT stressed the proportion of time spent in Britain needs to be more than de minimis, but that an analysis of the proportion of working time spent in this jurisdiction is not the only relevant factor for the purposes of satisfying the “partly” test. The nature of the work done in Britain is also relevant.
In Mak, the importance of the de-brief and training sessions was found to be “absolutely essential” to the employees’ work in the airline industry, where safety is paramount. Even though it was estimated that cabin crew only spent 5% of their total working time in Britain, there was held to be an employment “partly” in Britain, due primarily to the importance of the work undertaken here.
Conversely, in the case of Ministry of Defence (MoD) v Ghandiya, one of three conjoined appeals in Saggar v MoD [2004] All ER (D) 54, it was held that a chaplain based in Germany who officiated at one funeral in Britain was employed wholly outside the jurisdiction.
Q What does this mean for employers?
A The Mak decision has potentially far-reaching implications for employers with staff based mainly abroad, but whose employment involves regular visits to the UK. The employees in Mak had a regular and enduring connection with the UK (rather than, for example, a temporary, project-based connection requiring regular but short-term visits). A tribunal would have to be satisfied that the purpose of the trip was for “work” (and employers should remember that training will be regarded as such) and that the work involved was significant to the job as a whole.
It will be essential to analyse the nature of the work or training done in Britain. If the work or training is important, even if they only spend a small percentage of their working life in Britain, they may still be protected by our discrimination legislation.
Q Could those on business trips be affected?
A It seems unlikely that occasional or sporadic business trips to the UK would suffice to show an employment “partly” based here.
Q What next steps should employers take?
A Those employers who have staff based mainly abroad, but whose employment involves regular visits to the UK, would be well advised to undertake an analysis of the terms and conditions which they enjoy to establish whether there could be an argument that they are being discriminated against (most obviously on the grounds of their race). Consideration could also be given as to whether it might be possible to rearrange the employees’ work so they no longer undertake key elements of their role in Britain. In the Mak case, for example, the court’s conclusion might have been different if the individuals had carried out their essential safety training in Hong Kong, rather than in Britain.
Lisa Mayhew, partner, and Natalie Smith, associate, Jones Day
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