BRITISH AIRWAYS PLC v MS E C N MAK & OTHERS [2010] UKEAT 0055_09_2001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0055_09_2001Case No Appeal No. UKEAT/0055/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BRITISH AIRWAYS PLCAPPELLANTMS E C N MAK & OTHERSRESPONDENT
Before
His Honour Judge Peter Clark Dr K MohantyDate 20 January 2010
[1]APPEARANCES For the Appellant MR T LINDEN (One of Her Majesty's Counsel) Instructed by: Baker & McKenzie LLP 100 New Bridge Street London EC4V 6JA For the Respondents MS M TETHER (of Counsel) Instructed by: OH Parsons & Partners 3rd Floor Sovereign House 212-224 Shaftesbury Avenue London WC2N 8RP SUMMARY JURISDICTIONAL POINTS Working outside the Jurisdiction Hong Kong based cabin crew employed on Hong Kong to London flights. Whether working partly at an establishment in Great Britain for purposes of s.8(1) Race Relations Act 1976 ; reg 10(1) Age Regulations 2006 . Employment Tribunal finding that they were upheld . HIS HONOUR JUDGE PETER CLARK This appeal raises once more the reach of the Employment Tribunal's so-called extra territorial jurisdiction. The parties are Ms Mak and others, Claimants and British Airways plc Respondent. This appeal is brought by the Respondent against the reserved Judgment of an Employment Tribunal sitting at Reading under the chairmanship of Employment Judge B J Clarke, promulgated with reasons on 22 December 2008, following a Pre-Hearing Review at which the sole issue was whether the Employment Tribunal had jurisdiction to entertain the Claimants' complaints of unlawful age and race discrimination.[2]We have had the advantage, as did the Employment Tribunal below, of full argument, both oral and on paper, from Mr Linden QC on behalf of the Respondent and Ms Tether for the Claimants.[3]The Claimants, taking Ms Mak as the exemplar, are of Chinese National origin, born and bred in Hong Kong. The Respondent is the UK national airline whose principal place of business is in Great Britain (GB); its aircraft are registered here.[4]The Claimants were employed as cabin crew, based and ordinarily resident in Hong Kong, flying between Hong Kong and, among other destinations, London Heathrow or Gatwick.[5]Ms Mak completed some 28 'flight cycles' between Hong Kong and London each year. On a typical flight to London the aircraft would spend some 30 minutes in British airspace before landing. At the end of each flight there would be a 45 minute debrief. The crew would then have a period of rest of about 58 hours in hotel accommodation arranged by the Respondent. Crew members wishing to leave the hotel for more than 8 hours during their rest period required permission. Exceptionally, they may be called upon to undertake duties whilst in Great Britain on a 'turnaround'. Cabin crew are required to attend compulsory training in London; a 6 week course at the beginning of their employment; annual 2 day courses in safety and emergency procedures and a 6 day refresher course in those procedures following maternity leave.[6]The territorial reach of Employment Tribunals has varied over the years. We have been shown the various amendments to the Sex Discrimination Act 1975 (SDA) and the Race Relations Act 1976 (RRA), with which we are directly concerned. The relevant age discrimination provisions are to be found in the Employment Equality (Age Regulations) 2006 (the Age Regulations). We are not directly concerned with the Employment Tribunal jurisdiction under the Employment Rights Act 1996 (ERA), considered by the House of Lords in Lawson v. Serco [2006] ICR 510 .[7]The starting point is s.8 Race Relations Act , in its present form. By s.8(1): "For the purposes of this part ("the relevant purposes") employment is to be regarded as being at an establishment in GB if the employee – (a) does his work wholly or partly in Great Britain; …. Regulation 10(1) of the Age Regulations is in identical terms.[8]The Employment Tribunal held (paragraph 90) that the Claimant, Ms Mak, did her work at least partly in the UK throughout her employment. That finding is challenged by Mr Linden on three broad grounds; first on the basis that her work in Great Britain was de minimis , secondly because s.8(1) RRA applies only to posted workers and thirdly because the effect of s.8(1), if favourable to the Claimants is, on the facts, overridden by the application of s.8(4), which provides:
"Where the work is not done at an establishment it shall be treated for the relevant purposes as done at the establishment from which it is done or (where it is not done from any establishment) at the establishment with which it has the closest connection."
[9]We deal first with the s.8(4) point, which Mr Linden places at the forefront of his submissions in relation to the race discrimination complaint (there is no equivalent provision in Regulation 10 of the Age Regulations). In our view the argument is misconceived. It seems to us that s.8 proceeds by way of a series of 'gateways' for employment with an overseas dimension. The first position is that of employees (and there is no dispute in this case that the Claimants are 'employed' by the Respondent) who fall within s.8(1)(a); their work is wholly or partly at an 'establishment' (not defined in the Act) in Great Britain.[10]Secondly, where the employee does her work wholly outside Great Britain the Employment Tribunal may still have jurisdiction where the cumulative three requirements of sub-section (1A) are met. In this case the Claimants fall at the third hurdle (s.8(1A)(c)): they are not, and have never been, ordinarily resident in Great Britain.[11]Thirdly, s.8(4). Mr Linden contends that the Claimants' work ought to have been treated as being done at the establishment from which it was done, Hong Kong and/or it had the closest connection with Hong Kong. In these circumstances the Claimants were not employed at an establishment in Great Britain within the meaning of s.8(1).[12]We have a number of difficulties with that submission. First, in our view s.8(4) can only be engaged where a Claimant does not work wholly or partly at an establishment in Great Britain. If she does so, then s.8(4) cannot apply; it arises only where work is not done at an establishment. On the Employment Tribunal's findings, the subject of dispute, these Claimants did work partly at an establishment in Great Britain (paragraph 90). If that finding is sustainable, as to which question we shall return, then s.8(4) is immaterial.[13]Secondly, we have considered the Court of Appeal decision in Haughton v Olau Line [1986] ICR 357, by which the Employment Tribunal considered themselves bound to reject Mr Linden's submission on the effect of s.8(4) (reasons paragraph 88).[14]Haughton was decided on a construction of s.10 SDA, the equivalent SDA provision to s.8 RRA. Although s.10(4) SDA, as it then appeared, was identical to the current s.8(4) SDA, s.10(1) was in terms different from the present s.8(1) RRA. Section 10(1) SDA then read; so far as is material:
"For the purposes of this Part…. Employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly or mainly outside Great Britain."
[15]Mr Linden submits that these are material distinctions in the present context. Under s.10 SDA in Haughton claims were ruled out where the employee worked wholly or mainly outside Great Britain. Further, the inclusion of employees who worked wholly outside Great Britain but complied with the three requirements of the present s.8(1A) RRA is not to be found in s.10 SDA as considered in Haughton .[16]True it is that the primary deeming provision in s.10(1) SDA, considered in Haughton , was more restrictive to employees than the current s.8(1) RRA, however that does not, in our view, enable Mr Linden to circumvent the clear finding of the Court of Appeal in Haughton on the meaning and effect of the identical s.10(4). As Neill LJ made clear (364 H), s.10(4) (and therefore s.8(4) SDA) is an ancillary provision necessary to deal with cases where the identity of a particular establishment is material; it is a further deeming provision, whereby work is treated as being done at an establishment. On our reading, sub-section (4) only comes into play in circumstances where an employee cannot bring herself within sub-section (1) or failing that sub-section (1A).[17]Thus the critical question in this appeal is, we think, whether the Employment Tribunal was entitled to find that these Claimants worked partly at an establishment in Great Britain.[18]We deal first with submissions made by Mr Linden as to what constituted 'work' on the facts of this case.[19]The Employment Tribunal concluded that(a) the debriefing session at the end of each flight cycle(b) the duties performed on landing, including safe disembarkation of the passengers(c) standby time, the reporting time prior to departure(d) duties on the aircraft prior to take off and(e) the training requirements to which we have referred constituted 'work' (reasons paragraph 90).[20]As to those matters, Mr Linden takes issue in this appeal with the Employment Tribunal findings as to (c) standby time and (e) training. As to standby, it is right to say that, in an otherwise impeccable analysis of the facts, the Employment Tribunal appears to have confused 'standby', which, under the Respondent's detailed policies, refers to duties performed in Hong Kong and not London, with the requirement for crews to be available as set out at paragraph 67.8 of their reasons prior to take-off from London. We agree with Ms Tether that this is an immaterial factual error at paragraph 90 of their reasons.[21]As to the training requirements, we are wholly unpersuaded by Mr Linden that undergoing such training does not constitute work. We are satisfied that the Employment Tribunal properly directed themselves as to the law, at paragraph 43 of their reasons, by reference to the judgment of Burton J in Saggar and others v. Ministry of Defence [2005] ICR 1073 , paragraphs 37-38 and reached a permissible conclusion that when training in London the Claimants were engaged in work.[22]Pausing there, was the Employment Tribunal entitled, on those findings as to work with which we decline to interfere, to conclude that the Claimants worked partly at an establishment in Great Britain? In answering that question we must next consider two separate submissions by Mr Linden.[23]First, he contends that even on the Employment Tribunal's findings such work as fell within s.8(1) was 'de minimis' and thus did not amount to working partly at an establishment in Great Britain.[24]The de minimis argument found favour in the case of MOD v. Ghandiya , one of three conjoined appeals considered by Burton J with the cases of Saggar and Lucas . The facts of that case were that the Claimant, an army chaplain was stationed in Germany. On one occasion he officiated at the funeral in Britain of a soldier in his regiment. That did not prevent his employment being wholly outside Great Britain (the exclusion under s.10(1) RRA as it was then). An application by Rev. Ghandiya for permission to appeal was refused, following an oral hearing, by Keene LJ [2004] EWCA Civ 1171.[25]In the present case there was much evidence led as to the proportion of time spent by the Claimants working in Great Britain. A figure of 5 per cent is mentioned. Proportions of time spent working here and abroad were material when the exclusion provision in the legislation was, as in Haughton's case, employees working wholly or mainly outside Great Britain. That would exclude those spending more than 50 per cent of their working time abroad. However the expression 'partly' is self-explanatory. It means more than 'de minimis' . Further, in our judgment the Employment Tribunal was right to look at the nature of the job performed by these Claimants. What they did at London airports was an integral part of each flight cycle and the training requirements were absolutely essential in an industry where safety is paramount. Plainly, in our judgment, the Employment Tribunal was entitled to conclude that these Claimants worked partly at an establishment in Great Britain, subject only to Mr Linden's final roll of the dice, the Posted Workers Directive (PWD) and its relevance, if any, to the issues raised in this appeal.[26]It is right to say that the change effected by the 1999 Regulations (S.I. 3163/1999), initially limiting the exclusion in s.10(1) SDA and s.8(1) RRA by removing the word 'mainly' from the expression working 'wholly or mainly outside Great Britain' was prompted by the PWD. The explanatory note to those Regulations, to which Ms Tether drew our attention, is helpful. It explains that the Regulations extend the application of the relevant provisions to posted workers, as defined in the PWD (Directive 96/71/6C).[27]That has led to a debate between Counsel as to whether these Claimants are 'posted workers' within the meaning of the Directive. Mr Linden contends that they are not; Ms Tether that they are. On this aspect the Employment Tribunal appears to have sided with Mr Linden (reasons paragraph 96).[28]Like the Employment Tribunal, however, we regard this debate as ultimately sterile. Whether or not the Claimants are to be regarded as posted workers is nothing to the point. Section 10(1) does not restrict its protection to posted workers. The Directive may have caused the original amendment to the legislation, but it applies equally to all employees who are covered by s.10(1). That includes, for the reasons earlier given, these Claimants.[29]Since Regulation 10(1) of the Age Regulations is in identical terms to s.8(1) RRA it follows, by parity of reasoning, that we uphold the Employment Tribunal's principal finding under both provisions that the Claimants worked partly at an establishment in Great Britain and thus the Employment Tribunal was entitled to accept that it has jurisdiction to entertain these claims of both race and age discrimination. Accordingly this appeals fails and is dismissed.[30]It also follows that it is unnecessary for our decision to consider Ms Tether's further submissions, first that work on board an aircraft in British airspace or compulsory rest periods constitute work at an establishment in Great Britain and secondly that, if not covered by Regulation 10(1), these Claimants could rely on the provisions of Regulation 10(3)(b) of the Age Regulations to find jurisdiction. Those arguments must await another day.