Are Employees Working Partly in Britain Protected by British Anti-Discrimination Legislation?
Written by Geoff Newman on 28/06/2010
A question that has arisen again and again is whether or not employees who are working partly in Britain are protected by the British anti-discrimination legislation. The answer is yes; in certain situations and circumstances they are protected.
This question first arose when a case was brought up before the Employment Appeal Tribunal against British Airways plc. The issue was that British Airways had employed Chinese cabin crew who lived in Hong Kong. They offered a 6-week training course in London and their duties included flying 28 return trips to London with a minimal stay during each trip across a one-year period.
The question that was brought up before the tribunal was whether the Chinese cabin crew were partly employed by British Airways or not, and if so, whether they could make claims in the UK related to forced retirement, no pension after retirement and discrimination from others, against British Airways or not.
But according to British Airways the cabin crew cannot be said to be partly employed in Britain, since the crew physically lived in Hong Kong and hence were residents of another country and not the UK. The tribunal stressed the fact that the cabin crew was partly employed in the UK and associated the amount of time spent by the crew members in Britain, as well as other factors responsible for categorizing the employment as wholly or partly. These factors include things like the nature of the work done in Britain by the crew members, and the amount of time spent in Britain during the training process, which is a necessary factor involved in the airline industry. Although it was concluded that the crew members spent only 5% of their time in Britain, the importance of the work that they did in the UK designated them as partly employed in the UK.
The case concluded that all those employees are protected under the anti-discrimination legislation of the UK. And it does not really matter how much time the employee spends in the UK, the nature of the work and the importance of the work plays a large role as well. The tribunal concluded that it is necessary to ensure that the trip made by an individual to the UK is work related, as well as what the nature of the work is and what sort of training is involved during the work process.
But individuals who travel to or visit the UK on business trips are not affected by this legislation. They are not regarded as working partly in the UK since they are residents of other countries and the nature of their work, and its importance, are not sufficient to mark them as protected under the legislation.
For all those employers who have employed staff that are based abroad but pay regular and purely work-related visits to UK, must ensure that no argument should be raised against them related to anti-discrimination legislation. They are advised to assess and analyse the terms and conditions established for employees who live abroad but work for the UK.