Part and parcel

British Airways plc v Mak and ors

To make a claim under the discrimination regulations, claimants have to show that they work “wholly or partly” in Great Britain. In British Airways plc v Mak and ors, the Employment Appeal Tribunal (EAT) concluded that “partly” just means something more than “de minimis” (in other words, something minor or of no importance).

Basic facts

Ms Mak, a Chinese national who lived in Hong Kong, worked as a member of the cabin crew for BA. Each year she completed about 28 “flight cycles” between Hong Kong and London.

At the end of each flight there was a 45 minute debrief and the crew would then have a rest period of about 58 hours. Crew members had to ask for permission if they wanted to leave the hotel for more than eight hours during that time. Occasionally, the crew members had to undertake certain duties in Britain while on a “turnaround”.

Cabin crew also had to attend compulsory training in London - a six-week course when they started; annual two-day courses in safety and emergency procedures; and a six day refresher course after maternity leave.

Ms Mak and her colleagues brought claims of race and age discrimination but BA argued that the tribunal had no jurisdiction to hear their claims.

Relevant law

Section 8 of the 1976 Race Relations Act, states that “For the purposes of this part ... 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 says the same thing in relation to age.

Tribunal decision

The tribunal decided that the debriefing session at the end of each flight cycle; the duties performed on landing, including safe disembarkation of the passengers; standby time, the reporting time prior to departure; duties on the aircraft prior to take off; and the training requirements all constituted “work”.

As the work they did at the London airports was an integral part of each flight cycle and the training requirements were absolutely essential, the tribunal concluded that Ms Mak and her colleagues worked at least “partly” at an establishment in Great Britain and were, therefore entitled to bring their discrimination claims.

EAT decision

And the EAT agreed. It said that the critical question was whether the tribunal was entitled to find that Ms Mak and her colleagues worked “partly” at an establishment in Great Britain.

It decided that the expression “partly” was self explanatory and just meant more than “de minimis”. In other words, something that was more than minor or of no importance. It was not about the actual amount of time spent in Great Britain.

In this case, the EAT said that the tribunal was therefore right to look at the nature of the jobs carried out by Ms Mak and her colleagues. As their work at London airports were “an integral part of each flight cycle and the training requirements were absolutely essential in an industry where safety is paramount”, the tribunal had been right to conclude that they worked “partly” at an establishment in Great Britain.