Provided a claimant does part of the work in the UK an ET may hear a race or age discrimination claim. | |||
British Airways Plc v Mak & Ors [2011] EWCA Civ 184 | |||
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18/03/2011
The chinese claimant cabin crew were recruited, worked, were based and resident in Hong Kong although performing in-flight duties as part of a team of mainly British-based crew. They were managed from Hong Kong. The claimants performed duties on the aircraft after it had landed such as the safe disembarkation of passengers, had a debrief session off the aircraft, had to report in and be briefed prior to departure etc The claimants were compulsorily retired at the age of 45 unlike BA international cabin crew working out of London. Although unable to bring unfair dismissal claims in the UK the ET and EAT found that the lead claimant's employment was was considered as being at an establishment in Great Britain under s.8(1) of the Race Relations Act 1976 and Regulation 10(1) of the Employment Equality (Age) Regulations 2006. At issue was whether the RRA 1976 Section 8 (1) applied:- '(1) .... 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'. BA argued that under section 4 work on an aircraft did not count as being at an, 'establishment' and therefore under that clause the establshment most closely connected with the claimant's work was to be found Hong Kong. The Court of Appeal made no finding on this argument but found that as section 4 was preceded by section 8 (1) that section had priority and therefore 8 (4) did not here come into play. The Court of Appeal decision 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)tha mirrors s.8 of the 1976 Act, supported the s8(4) approach. Similar points were made by BA under Regulation 10 of the Age Regulations and were likewise rejected. The Court of Appeal affirmed the ET finding that for s.8(1) of the 1976 Act to apply Ms Mak's work only needed to be done, "partly in Great Britain," and as such was was regarded as happening at an establishment in the UK. BA's argument that the work done in the UK was de minimis as it was a very small percentage of the total working time was not valid under 8 (1). The argument that Ms Mak was a "posted worker" within the meaning of the Posted Workers Directive 96/71/EC (the Directive) was rejected. The Court of Appeal rejected BA's contention that as the lead claimant Ms Mak did not work at an 'establishment' but in an aircraft, so subsection 4 should mean that the establishment with which the work done has the closest connection i.e. Hong Kong should be chosen. As to where s.8(4) might apply was given the example of a tour guide not working at all in the UK but whose work was connected with the UK. His work would lie outside the scope of s.8(1) but s8.(4) might act to protect him as his work could have the closest connection with a UK establishment. It is not necessary to be a posted worker in order to benefit from protection against discrimination as s.8(1) of the 1976 RRA does not confine work to those workers based in or posted to the UK. BA's appeal was dismissed. |
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| Transcript of the judgement:- British Airways Plc v Mak & Ors [2011] EWCA Civ 184 |
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| 2010 TUPE transfers apply where the transferor was in administration - OTG Ltd v. Barke & Ors [2011] UKEAT 0320_09_1602 The Court of Appeal limits the scope of employers to break strikes using interim injunctions - National Union of Rail, Maritime & Transport Workers v Serco Ltd (t/a Serco Docklands) [2011] EWCA Civ 226 Employment Tribunal Written Reasons must contain sufficient detail to understand the decision - Greenwood v. NWF Retail Ltd [2011] UKEAT/0409/09/JOJ Employer's justice - the worker had his hours cut and suffered racial discrimination yet the Court of Appeal finds his dismissal 'equitable' and 'fair' - Orr v Milton Keynes Council [2011] EWCA Civ 62 Failing to consider a reasonable offer of settlement or to make a counter offer can lead to an employment tribunal making a costs order. - G4S Services v Rondeau [2009] UKEAT 0207/09/DA Where an employee alleges unlawful conduct by his employer to his employer's own solicitor this is not defamatory. - Wallis & Anor v Meredith [2011] EWHC 75 (QB) Pay protection should have been extended to female staff (after withdrawal of bonuses to males)under the Equal Pay Act 1970 - Bury MBC v Hamilton and Sunderland City Council v Brennan [2011] UKEAT Under the RRA76 the employer was not vicariously liable for race discrimination by third party employees (the Equality Act 2010 section 40 changes this) - Conteh v. Parking Partners Ltd [2010] UKEAT 0288_10_1712 Discrimination against gay customers was also unlawful sex orientation discrimination against the claimant employee - Lisboa v. Realpubs Ltd & Ors [2011] UKEAT 0224_10_1101 Employment tribunal under no obligation to transfer unfair dismissal, racial discrimination, religious discrimination and sums due case to the tribunal nearest the workplace - Faleye & Anor v UK Mission Enterprise Ltd & Ors [2010] UKEAT 0359_10_0809 Contractual bonuses and pay in lieu of notice (PILON) - Locke v Candy and Candy Ltd [2010] EWCA Civ 1350 Where there is no unfair dismissal or otherwise termination of employment the tribunal may not consider breach of contract claims - Southern Cross Healthcare Co Ltd v Perkins & Ors [2010] EWCA Civ 1442 Trying to re-argue the facts at appeal on the grounds of bias or perversity is no easy task - Clarke v Zurich UK General Services Ltd [2010] EWCA Civ 1333 A distinction is made between treatment on the grounds of a person's beliefs and on the grounds of the manifestation of those beliefs - Power v. Greater Manchester Police Authority [2010] UKEAT 0087_10_0810 The "nature, gravity and effect" of misconduct must be taken into account when deciding whether to make (and if so the amount of) a costs award - Yerrakalva v. Barnsley Metropolitan Borough Council & Anor [2010] UKEAT 0231_10_0812 The effective date of termination does not change just because the employee has been allowed to leave early - South Manchester Abbeyfield Society Ltd v Hopkins & Anor [2010] UKEAT 0079_10_3011 Under the National Minimum Wage Act and National Minimum Wage Regulations workers may only claim for hours they are awake for the purpose of working. - South Manchester Abbeyfield Society Ltd v Hopkins & Anor [2010] UKEAT 0079_10_3011 When less favourable treatment amounting to a detriment follows a protected disclosure the employer must prove it was "in no sense whatsoever on the ground of the protected disclosure" - Fecitt & Ors v. NHS Manchester [2010] UKEAT 0150_10_2311 Establishing a contract of service and thence unfair dismissal remains a tall order for an agency worker - Tilson v Alstom Transport [2010] EWCA Civ 1308 The duty of fidelity and fiduciary obligations must remain separate and are in any case not imposed on employees; fidelity does not extend to reporting one's own or fellow employees' misconduct - Lonmar Global Risks Limited v West and Others [2010] EWHC 2878 (QB) Employers don't need to justify age discriminatory behaviour in terms of "legitimate social policy objectives" - Seldon v. Clarkson Wright & Jakes [2010] Court of Appeal A2/2009/0149 Those seeking to profit out of the discrimination legislation will face costs - Berry v. Recruitment Revolution [2010] UKEAT 0190_10_0610 Court of Appeal re-interprets clause of BA contract to avoid 'disastrous' consequences for the firm (the employees must work harder and more stressful shifts) - Malone & Ors v British Airways Plc [2010] EWCA Civ 1225 EAT questions 'cost plus' approach to justification in discrimination - Woodcock v Cumbria Primary Care Trust [2010] UKEAT 0489_09_1211 Workers whose employment contract was made with a company that did not actually employ them are still entitled to TUPE protections upon transfer. The "Transferor" is the company in the group that they actually worked for - Albron Catering BV v FNV Bondgenoten C-242/09 Being incorrectly summarily dismissed for misconduct still amounted to a fair but wrongful dismissal - Weston Recovery Services v Fisher [2010] UKEAT 0062_10_0710 Not unfair dismissal despite having occurred during the protected consultation period contrary to s. 188 TULRCA s.188(8) - Hammonds LLP & Ors v Mwitta [2010] UKEAT 0026_10_0110 The Court of Appeal refers the timing of worker consultation under TUPE to the ECJ - United States of America v Nolan [2010] EWCA Civ 1223 A redundancy consultation means explaining the scoring to the employee and seriously considering his comments - Pinewood Repro Ltd v. Page [2010] UKEAT 0028_10_1310 The effective date of termination is not necessarily when a letter is received, but when it can reasonably be expected to have been read - Gisda Cyf v Barratt [2010] UKSC 41 For unfair dismissal length of service purposes, working under a different contract did not break continuity of employment - Hussain v Acorn Independent College Ltd [2010] UKEAT 0199_10_0809 The previous employer will be liable for victimsing his worker through a reference to a prospective employer - Bullimore v Pothecary Witham Weld Solicitors & Anor [2010] UKEAT 0189_10_2109 An employer's allegations must be spelled out. Euphemistic speech is not acceptable when disciplining or dismissing workers. - Celebi v Scolarest Compass Group UK & Ireland Ltd [2010] UKEAT 0032_10_2807 |
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