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Cite as: [2011] ICR 735, [2011] EWCA Civ 184

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Neutral Citation Number: [2011] EWCA Civ 184
Case No: A2/2010/0305

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ PETER CLARK
UKEAT/0055/09/SM

Royal Courts of Justice
Strand, London, WC2A 2LL
24/2/2011

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
and
LORD JUSTICE AIKENS

____________________

Between:
BRITISH AIRWAYS PLC
Appellant
- and -

MS ELIZA MAK & ORS
Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

MR THOMAS LINDEN QC (instructed by Baker & McKenzie LLP) for the Appellant
MS MELANIE TETHER (instructed by OH Parsons & Partners) for the Respondents
Hearing date: 9th December 2010

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Mummery :

    Introduction

  1. In recent years Parliament has amended employment legislation to extend the scope of the jurisdiction of Employment Tribunals (ET). Unfair dismissal and discrimination claims may be brought in the ET by claimants who do not do all of their work at an establishment in Great Britain. Litigation about the expanding jurisdiction has generated a burgeoning body of interpretive case law. The cases are the fall-out of globalised activities and enterprises. The activities of modern nation-states are international. The large workforces of multi-national enterprises are widely dispersed.
  2. This preliminary issue is whether the ET can hear and determine complaints against British Airways plc (BA) of alleged unlawful direct and indirect race discrimination and of age discrimination. The 16 claimants are former cabin crew members, who come from Hong Kong and who served on BA flights between Hong Kong and Great Britain. Did they do their work "partly in Great Britain"? That is the crunch question.
  3. The arguments in the tribunals and in this court covered more points than it is sensible or necessary to decide on this appeal. The exercise of an employment rights jurisdiction in cases where the work is done wholly or partly outside Great Britain is a sensitive area. Tribunals and courts should, as a general rule, be cautious in their rulings on jurisdiction, which are best kept to the issues that have to be decided in the particular case.
  4. By order dated 20 January 2010 the Employment Appeal Tribunal (EAT) dismissed an appeal by BA from the ET's decision at a pre-hearing review promulgated on 22 December 2008. The ET held that it had jurisdiction to entertain the claimants' discrimination complaints against BA. The decision was based principally on the ground that they did their work partly in Great Britain. It followed under the then applicable legislation that their work was "to be regarded as being done at an establishment in Great Britain", a statutory consequence that suffices to give the ET jurisdiction. (The Equality Act 2010 has superseded the earlier legislation).
  5. BA appeals with permission granted by Rimer LJ on 20 May 2010 on a renewed application.
  6. Outline facts

  7. BA has strong links with this country. It is the national airline. Its principal place of business is in this country. The aircraft operated by it are registered here.
  8. The claimants have weaker links with this country and stronger links with Hong Kong: they were born there and are of Chinese national origin; they were based and ordinarily resident in Hong Kong at all material times; and they were recruited in Hong Kong out of BA's base there to serve as members of BA's international cabin crew.
  9. The claimants worked on flight cycles to London Heathrow and Gatwick beginning and ending in Hong Kong and lasting as long as 11 days. They performed their in-flight duties as part of a team composed predominantly of British-based crew. They reported to managers in Hong Kong on such matters as performance, attendance management, appraisals and complaints.
  10. There are connections between the claimants' employment and this country in addition to BA's presence here. The aircraft flying from Hong Kong normally spend about 30 minutes in British airspace before landing (There is a similar time spent in British airspace after take-off of the flight to Hong Kong.) Landing in this country is followed by a 45 minute debrief and a rest period in London of about 58 hours in hotel accommodation arranged and provided for by BA. The cabin crew require permission to leave the hotel for more than 8 hours of the rest period. Exceptionally they may be called upon to undertake duties in Great Britain on a "turnaround."
  11. In addition to flight cycles cabin crew members are required to attend compulsory training courses in London, comprising a 6 week course at the commencement of employment, annual 2 day courses in safety and emergency procedures and a 6 day refresher course following maternity leave.
  12. The complaint

  13. The complaint is that the claimants have been compulsorily retired at the age of 45, whereas BA international cabin crew working out of London and other bases are not forced to retire at 45. It is common ground that the claimants are unable to bring their unfair dismissal claims in this country or these discrimination claims in Hong Kong, though other legal proceedings have been brought there. There are 16 claimants in all. By agreement the claim by Ms Eliza Mak, who completed about 28 flight cycles between Hong Kong and London a year, stands as the lead case. The ET concentrated on the facts of her case.
  14. The jurisdictional issue turns on whether Ms Mak's employment was to be regarded as being at an establishment in Great Britain for the purposes of s.8(1) of the Race Relations Act 1976 (the 1976 Act) and the similarly worded Regulation 10(1) of the Employment Equality (Age) Regulations 2006 (the Age Regulations). Points have also been argued on the construction and application of regulation 10(3)(b) of the Age Regulations and s8(4) of the 1976 Act.
  15. In general, the focus of the jurisdictional provisions is on the location or deemed location of the work done, of the establishment at, or from which, the work is done and of the claimant's employment, rather than on the place where the contract of employment was made or where the unfair dismissal or discrimination is alleged to have occurred.
  16. The 1976 Act

  17. Section 4(2)(c) of the 1976 Act provides that:-
  18. "It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that person- …
    (c) by dismissing him or subjecting him to any other detriment."
  19. BA took the point that Ms Mak was not employed by it at an establishment in Great Britain: she was based in Hong Kong, was resident there and was employed under a local contract of employment.
  20. Section 8, as amended, provides that:-
  21. "(1) For the purposes of this Part ("the relevant purposes") employment is to be regarded as being at an establishment in Great Britain if the employee
    (a) does his work wholly or partly in Great Britain; or [immaterial parts omitted]
    (4) Where 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."
  22. Subsection (1) focuses on the location of "employment", while subsection (4) focuses on "work" and whether it is done, or treated as done, at or from an establishment.
  23. BA took the point that s.8(1) related to employment "at an establishment." It did not apply to Ms Mak's employment, as it was not "at an establishment": her employment was in an aircraft flying through the air. As Ms Mak's work was not done at any establishment, s.8(4) applied as indicated by its opening words. She did not come within the first part of s.8(4), because her work was similarly, not done from any establishments. The result was that Ms Mak's work was treated as done at the establishment with which her work had the closest connection. That was Hong Kong.
  24. BA argued that the deeming process in s.8(4) overrides the deeming process in s.8(1), which could not apply: Ms Mak's employment was not "at an establishment" nor did she do her work wholly or partly in Great Britain.
  25. The Age Regulations

  26. BA took similar points on the equivalent provisions in the Age Regulations.
  27. Regulation 7(2) provides that it is unlawful for an employer to discriminate against an employee where he employs that person "at an establishment in Great Britain."
  28. Regulation 10 provides that
  29. "(1) For the purposes of this Part ("the relevant purposes"), employment is to be regarded as being at an establishment in Great Britain if the employee-
    (a) does his work wholly or partly in Great Britain; or [immaterial parts omitted]
    (3) The reference to "employment" in paragraph (1) includes-
    (a) …
    (b) employment on an aircraft or hovercraft only if the aircraft or hovercraft is registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Great Britain.
  30. The 1976 Act has no equivalent provision governing employment on an aircraft. In the ET Ms Mak successfully relied on Regulation 10(3)(b), as well as Regulation 10(1)(a), to confer jurisdiction.
  31. The Age Regulations have no equivalent provision to s.8(4) of the 1976 Act.
  32. ET judgment

  33. The jurisdictional point was elaborately argued before the ET over 3 days. The rival arguments are comprehensively covered in a 29 page reserved judgment which also sets out the issues and the legislation, reviews the case law and contains very detailed findings of jurisdictional facts.
  34. The ET rejected BA's contention that s.8(4) trumped s.8(1), holding that for s.8(1) of the 1976 Act to apply Ms Mak's work did not have to be done "at an establishment." All that mattered was that she did her work at least "partly in Great Britain." If that was the case, her employment was "to be regarded as being at an establishment in Great Britain."
  35. "90. On this point we have been easily persuaded that the claimant did her work at least partly in the UK throughout her employment. The parties went through all aspects of the working life of a member of Hong Kong base cabin crew and most involved a debate over whether they could properly be considered as "work." In our view, some of the duties performed by the claimant in Great Britain unarguably constituted "work" here. We have in mind the following upon arrival in the UK: the duties she performed on the aircraft after it had landed (including the safe disembarkation of passengers) and the 45 minute debrief session conducted off the aircraft. We have in mind the following upon departure from the UK: standby time, the reporting time prior to departure (which lasts about 1 hour and 25 minutes and includes briefings on weather and the like) and the duties performed by the claimant on the aircraft prior to take off (including the safe embarkation of passengers and securing baggage). Finally, we also have in mind the annual compulsory two-day training in Great Britain as well as, over her employment, other compulsory training on important matters provided in Great Britain."
  36. The ET was more hesitant about whether the estimated 30 minute flight time spent in British airspace, both on the way in and on the way out of London, was work done in Great Britain. As for the work status and nature of the rest periods available to the claimant during her stopovers in London BA contended that they should be entirely discounted, while the claimant argued that they should be found to be work. The ET favoured an in-between position under which the rest periods were regarded as part of a bigger package, not as a fleeting presence, or as de minimis. The ET concluded:-
  37. "94. In summary, even discounting time in British airspace and rest time and even though the claimant's work in Great Britain was a small numerical amount of her overall working time (somewhere around 5% it seems), we still find that she did her work partly in the UK. Such work was a regular and crucial part of her role and her role could not be done without it. It was not in any sense trivial or trifling. As a result she is to be regarded as having worked at an establishment in Great Britain. This means that the tribunal has jurisdiction to hear her complaint of race discrimination…."
  38. The ET reached the same conclusion on the jurisdiction under Regulation 10(1)(a) to hear the complaint of age discrimination. In addition the ET concluded that Ms Mak could rely on Regulation 10(3)(b). By virtue of working on UK registered aircraft that are operated by a company with its principal place of business in the UK Ms Mak's employment was to be regarded as being at an establishment in Great Britain for the purposes of the claim for age discrimination. It was also sufficient to get her past the requirement to work "partly" in Great Britain.
  39. EAT judgment

  40. The EAT upheld ET's decision that it had jurisdiction to entertain these discrimination claims on the basis of its finding that Ms Mak did her work partly in Great Britain within the meaning of s8(1) of the 1976 Act and Regulation 10(1) of the Age Regulations.
  41. The EAT declined to interfere with the findings as to the work done by Ms Mak. It held that, on those findings, the ET was entitled to conclude that Ms Mak did her work partly in Great Britain. The EAT did not find it necessary to decide whether work on board an aircraft in British airspace or compulsory rest periods constituted doing work in Great Britain, or whether the claimants could rely on Regulation 10(3)(b) to found jurisdiction .
  42. The EAT rejected BA's contention that the findings as to work done in Great Britain were de minimis being only a very small percentage of the total working time. The EAT regarded as ultimately sterile a dispute between the parties whether Ms Mak was a "posted worker" within the meaning of the Posted Workers Directive 96/71/EC (the Directive). BA's submission that s.8(1) only applied to "posted workers" was rejected. The Directive triggered changes to domestic employment legislation, but the implementing legislation did not restrict the application of the jurisdictional provisions to posted workers.
  43. On the s. 8(4) point, which was at the forefront of BA's appeal, the EAT held that the provision was immaterial: it only came into play in circumstances where Ms Mak could not bring herself within subsection (1) by working wholly or partly in Great Britain. The decision of the Court of Appeal in Haughton v Olau Line(UK) Ltd [1986] ICR 357 on the meaning and effect of s10(1) of the Sex Discrimination Act 1975 (the 1975 Act), which continues to mirror s.8 of the 1976 Act, supported that approach to s8(4). It was not distinguishable in its analysis of the order of precedence of the jurisdictional provisions applicable to both sex and race discrimination claims. The EAT rejected BA's contention that s. 8(4) was a provision that prevailed over the operation of s8(1). It analysed s.8 as a series of sequential gateways, the first of which was subsection (1) so that, if it was satisfied, subsection (4) was not reached and could not apply
  44. BA's submissions

  45. In his very able submissions Mr Thomas Linden QC, appearing for BA, submits that the ET erred on three main points of law.
  46. The first is that, as Ms Mak's work was not done "at an establishment", s.8(1) could not apply. Section 8(4) was the applicable provision where the work was not done at an establishment. Under that provision her work was deemed to be done at the establishment with which her work had the closest connection. That was Hong Kong, not Great Britain.
  47. The second point is that Ms Mak did not "work partly" in this country within the meaning in s.8(1). Her various activities here were not in fact "work" or they were too de minimis to be either work, or to be work "in this country", even partly.
  48. The third point is that the provisions about aircraft in Regulation 10(3)(b) do not apply to Ms Mak: they merely rule out work done on aircraft which are not registered in the United Kingdom.
  49. Discussion and conclusion

    "Working partly" point

  50. At the heart of the rival submissions is a debate on the order of precedence in the paths to jurisdiction.
  51. The 1976 Act begins with s.8(1). If Ms Mak does her work "partly" in Great Britain her employment is to be regarded as being at an establishment in Great Britain. That is the stipulated position in law, even if the work actually done by that person is not at an establishment.
  52. The ET treated s.8(1) as the first stopping place on the jurisdiction journey. It then found facts to support its conclusion that Ms Mak did her work partly in Great Britain. That was sufficient to trigger the operation of the statutory deeming provision on which jurisdiction is founded. It also held that the work done here by Ms Mak was more than de minimis and that it counted as work within s.8.
  53. On BA's approach the first question is not whether Ms Mak did her work "partly" in Great Britain within subsection (1). It is whether she did her work at or from an establishment. BA prefers to begin at the end of s.8 saying that its terms expressly apply where the work is not done at any establishment. The first question is: was her work "done at an establishment" within the meaning of subsection (4)? The argument based on subsection (4) is that the work done by Ms Mak is done in an aircraft, not "at an establishment" or "from any establishment." It is therefore treated as done at the establishment with which the work done has the closest connection. That is Hong Kong. In this way the opening subsection (1) is demoted from the prior position that it would appear to occupy on the jurisdictional scene.
  54. Like the ET and the EAT I am unable the accept Mr Linden's construction of s.8(1) and (4). In my judgment, it is more logical and makes better sense to begin at the beginning with s.8(1) rather than to begin at the end with s.8(4). There is no need or justification for enlisting s.8(4) when subsection (1) fits the case and deems Ms Mak's employment to be at an establishment in Great Britain by reason of the work done by her partly in Great Britain. The process of regarding her employment as being at an establishment in Great Britain is triggered simply by Ms Mak doing her work partly in Great Britain. It is not stipulated that her work must actually be done at an establishment as long as it is done at least partly in Great Britain. In those circumstances s.8(4) is not reached and does not apply. It is not needed in a case where, by virtue of s.8(1), the employment is to be regarded as being at an establishment in Great Britain.
  55. This construction does not deprive s.8(4) of meaning or practical effect. Its main purpose is to cover the case where the employment is not covered by the deeming effect of the process provided for in s.8(1).
  56. For example, there may be cases of a claimant who does not work either wholly or partly in Great Britain and is therefore outside s.8(1). There may, however, be a connection between the work done by the claimant outside Great Britain and Great Britain. That connection may exist, even though the work is not done in Great Britain and is not done at an establishment or from an establishment anywhere. The result under s8.(4) is that, depending on the facts, the work done may have the closest connection with this country and be treated by s.8(4) as done at an establishment in Great Britain.
  57. One possible case tentatively raised at the hearing is that of an itinerant tour guide or a travel company representative, who may work partly in many countries abroad and for short periods without having any establishment at or from which to work and without ever doing any work in Great Britain. Such a person may be treated as doing work at an establishment in Great Britain under s.8(4), if the work done has the closest connection with the establishment of a tour operator in Great Britain.
  58. The case of Haughton was much discussed in the ET and in the submissions of the parties. The jurisdiction provisions of s10 of the 1975 Act then in force were that employment was to be regarded as being at an establishment in Great Britain, unless the employee does his work wholly or mainly outside Great Britain. The position was different if the work was done on board a British registered ship. The Court of Appeal held that the ET had no jurisdiction to entertain a sex discrimination complaint by a Miss Haughton, who worked as a cashier on board a ship sailing between Sheerness and Flushing. She alleged that she was harassed by a fellow employee on board a German registered ship. The Court held that her work was done mainly outside territorial waters. The claim therefore failed for lack of jurisdiction.
  59. Haughton does not assist BA's case on the construction of the amended equivalent provisions on jurisdiction in the 1976 Act. Indeed, I think that it is against Mr Linden's submission that s.8(1) is inapplicable to a case where the employee does not work at an establishment and to his submission on s8(4).
  60. In Haughton Neill LJ said that the equivalent provision in s.10(1) of the 1975 Act was to be construed as "a comprehensive definition of 'employment at an establishment in Great Britain' " to be applied, except where expressly excluded: see p364D-F. He described s10(4) as "an ancillary provision" dealing with cases where the identity of a particular establishment is material and to determine at which establishment the work is to be treated as being done.
  61. The work points

  62. Turning now to the collection of "work" points BA submits that the ET erred in law by misunderstanding the position about standby time and by concluding that what was done by Ms Mak partly in Great Britain was "work" within s.8(1) and Regulation 10(1) and was sufficient to be covered by those provisions. In particular, Mr Linden submits that standby time and compulsory training time do not count as work and should be disregarded. That would reduce even further the small percentage of Ms Mak's work done in Great Britain.
  63. It is common ground that the ET was wrong on the facts about standby time stated in paragraph [90] of its judgment in the context of where Ms Mak did her work. Standby time is a rostered duty involving immediate readiness for duty for 2 hours before scheduled departure time. The ET mistakenly referred to it as a duty performed in Great Britain: it normally takes place in Hong Kong and could not therefore be considered to be work in Great Britain or even work at all. In my judgment, this relatively minor factual error is not, and has not given rise to, an error of law in the ET judgment. The ET's conclusion on the "partly working" point, in the context of the content, duration, regularity and importance of the work done in Great Britain, would in all probability have been the same, even if it had not made that factual error.
  64. As for the rest of the points the challenge is to whether, as a matter of construction, the facts found constitute work done "partly in Great Britain." In my judgment, there was no error of law in the ET's conclusions on the work point. There was no error of law in holding that the compulsory training time in Great Britain counted as work: it is relevant to the proper performance of their safety duties. Even though the percentage of work was small and even discounting the time in British airspace and the rest time in Great Britain, Ms Mak did perform work partly in Great Britain that was not trivial. It was a regular and crucial part of her role, which she could not have done without. It is a conclusion to which a reasonable ET, properly directing itself on the law, could reach on the facts of the case.
  65. The Posted Workers Directive

  66. Mr Linden submits that the jurisdiction provisions ought to be construed consistently with the Directive to which they were intended to conform. The ET held that Ms Mak was not a worker "posted" into this jurisdiction within the meaning of the Directive nor was she based here. Mr Linden submits that the ET then erred by not going on to hold that she did not therefore work "partly in Great Britain" in the relevant sense and that her employment was not to be regarded as being at an establishment in Great Britain.
  67. The submission was based on the fact that the jurisdiction provisions in the 1976 Act were amended to comply with the United Kingdom's obligations under the Directive by ensuring that posted workers from other member states of the EU have, while in this country, the same rights as employees who normally work here. As Ms Mak was not a worker posted from an EU member state, she was not a person whom the implementing amendments to the jurisdiction provisions were intended to bring within its scope.
  68. The EAT upheld the ET's rejection of this point on the ground that the provisions of the 1976 Act as amended did not restrict their protection to posted workers. The EAT commented that the Directive may have caused the original amendments to the legislation, but it applies equally to employees covered by its wording, including Ms Mak.
  69. I am not persuaded by Mr Linden that a person needs to be a posted worker in order to benefit from the extension of the jurisdiction of the ET in anti-discrimination cases. The language of s.8(1) of the 1976 Act does not confine those who work partly in Great Britain to those who were based in or posted to this country. In those circumstances the wrangle about whether Ms Mak was or was not a posted worker is, as the ET and the EAT said, ultimately sterile.
  70. Employment on board aircraft

  71. It is not necessary to express a concluded view on the interpretation or applicability of the special provisions relating to employment on board an aircraft registered in Great Britain and operated by an employer with its principal place of business in Great Britain.
  72. Result

  73. I would dismiss the appeal. There was no error of law in the ET's ruling that Ms Mak did "her work partly" in Great Britain. That is sufficient to confer on the ET jurisdiction to hear and determine her claims (and those of her fellow claimants) for race and age discrimination. The jurisdiction exists as a result of the statutory process of deeming her employment to be at an establishment in Great Britain under s.8(1); that takes priority over the deeming process under s.8(4), which does not therefore apply to Ms Mak's case.
  74. The point of employment on aircraft only arises on the age discrimination claim under Regulation 10(3)(b). No ruling on that ground of jurisdiction is necessary in order to decide the appeal. The interpretation of it is best left to a future case in which a decision on the point is unavoidable.
  75. Lord Justice Richards:

  76. I agree.
  77. Lord Justice Aikens:

  78. I also agree. Although this appeal raises an important point on the jurisdiction of ETs, I so completely agree with the reasoning of Mummery LJ that it would be pointless adding anything more.


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