Commuting is no fun, unless you are fortunate enough to work from home, but imagine the plight of the international commuter. Now at least they may have the comfort of knowing that they have employment law protection, as this case shows.
Since 1996, when the territorial restriction was removed from unfair dismissal legislation, there has been a series of cases looking at how far unfair dismissal protection applies to workers who spend all or part of the their time working outside the UK. Two situations were set out in Lawson v Serco  ICR 250 where an employee could claim unfair dismissal while working abroad:
- – employees based in the UK, even though they carry out many of their duties abroad – “peripatetic” employees; and
- – expatriate employees – who both live and work outside the UK – who may be covered by unfair dismissal law in special cases where there is enough of a connection with the UK, for example living in an extra territorial enclave such as a military base or who are posted abroad to work for a UK based business
Are these categories exhaustive, or is it possible for employees working under different arrangements to have UK employment protection? This question of exactly what Lord Hoffman intended his categories to amount to in 2006 has often been debated, but given it was a House of Lords decision this has never been in an authoritative context – until now. Continue reading
Regular readers will know that BA cabin crew have kept the courts and tribunals very busy in the last couple of years.
In the latest case involving them the Court of Appeal has ruled that cabin crew, based in Hong Kong but flying to and training in London, worked partly at an establishment in Great Britain: accordingly they are entitled to bring claims under the Race Relations Act 1976 and the Employment Equality (Age) Regulations 2006.
Mrs Mak and 15 colleagues of Chinese origin worked as cabin crew for British Airways. They were ordinarily based in Hong Kong; they worked on BA flights to London (in the case of Mrs Mak an average 28 round trips per year) and would stay in hotels in London. They also had to attend compulsory training courses in London. Mrs Mak and her colleagues brought claims for unlawful direct and indirect race discrimination and age discrimination. The preliminary question arose as to whether an employment tribunal had jurisdiction to hear the claims. For the tribunal to have jurisdiction it had to be satisfied that their employment counted as being at an establishment in Great Britain.
At a Pre-Hearing Review an employment judge ruled that the claimants worked at least partly in Great Britain and so under the relevant statutory wording counted as being at an establishment in Great Britain. The employment tribunal therefore had jurisdiction. British Airways appealed to the EAT but lost. They appealed on to the Court of Appeal and have lost again.
The arguments put forward by BA were mainly technical, based on the precise wording of the relevant sections and regulations and how they should be properly interpreted. Those arguments are not considered further here but there was also an important general point. BA argued that the amount of “work” done by Mrs Mak in Great Britain was so small that it should be disregarded. The original tribunal had accepted that compulsory training time and standby time were both in GB and were both work. It was also agreed by all parties that standby time took place in Hong Kong and not in GB.
The Court of Appeal dismissed BA’s argument. Compulsory training time in Great Britain was work and was not trivial. In terms of time taken it was relatively small but it was a regular and crucial part of Mrs Mak’s role, which she could not have done without. It was therefore not trivial.
Note: As from 1 October 2010 the Equality Act 2010 has repealed the Race Relations Act 1976 and revoked the relevant parts of the Employment Equality (Age) Regulations 2006. There is no specific provision in Equality Act 2010 to define its territorial scope. Presumably under that Act normal common law rules will therefore apply as they do in unfair dismissal cases (essentially meaning that the test is a general test of whether an individual’s employment relationship is sufficiently closely connected with Great Britain to make it appropriate that he should be able to bring a claim in Britain, as explained by the House of Lords in the leading case of Lawson v Serco  ICR 250 and subsequently developed).