Overseas employees may bring UK discrimination claims

A recent Employment Appeal Tribunal decision, British Airways plc v. Mak, considered the territorial jurisdiction of UK discrimination laws. The case concerned cabin crew who were based in Hong Kong but flew between London and Hong Kong 28 times a year. They effectively spent about 5% of their time in the UK. At the end of each flight, there was a debrief followed by a 58 hour rest period in London. In addition, the cabin crew had to attend compulsory safety training in London on an annual basis for 2 days each year.

The cabin crew claimed race and age discrimination against BA. UK discrimination laws provide that an employee can claim discrimination under UK law provided he works "wholly or partly" in Great Britain. 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.

The EAT interpreted "partly" very broadly as being simply more than a "de minimis" amount. This is decided by reference to the nature of the job being performed by the employees and not just the proportion of time they spent in the UK. In this instance, the training requirements in London were essential given the importance of safety in the aviation industry.

It is clear from this decision and other recent cases that the courts and tribunals are applying a broad interpretation to the territorial scope of many UK employment law rights, in particular those underpinned by EU law. It is now clear that UK discrimination legislation may well cover employees who are based and spend most of their time abroad but who visit the UK occasionally, for example for meetings or to undertake training. However, this is likely to depend on the nature of the work done in the UK and the importance of that work to the employee's job. Employers should therefore be mindful of the possibility of claims being brought by such employees in the UK Employment Tribunals.