In the last few weeks, various articles have appeared in the press about Emirates Airlines apparently withdrawing an offer of a cabin crew role after they had reviewed details of the applicant’s medical history.
The candidate, Megan Cox, alleges that it withdrew the offer because she had previously suffered from depression (even though she is now recovered). The airline said in a statement: "Given our crew are responsible for the safety of hundreds of passengers it is important that all candidates meet the pre-employment conditions."
Ms Cox feels that she has suffered discrimination, and has fallen through a hole in anti-discrimination legislation because UK employment law would not apply to her application for a role which involved carrying out duties overseas. But what is the legal position? Do overseas workers have the protection of UK discrimination law?
A wide range of individuals can claim protection under the Equality Act 2010 – this includes applicants for employment, employees, workers, contract workers and partners, whether the working relationship is ongoing, has not yet started or has ended.
However, very unhelpfully, the Act is completely silent on whether it protects overseas workers. We get a little guidance from its explanatory notes, which state with regard to overseas working that “following the precedent of the Employment Rights Act 1996, the Act leaves it to tribunals to determine whether the law applies, depending for example on the connection between the employment relationship and Great Britain”. But what does that mean?
In 2006, the House of Lords in the case of Lawson v. Serco Ltd. held that the Employment Rights Act 1996 only applied to those working abroad in exceptional circumstances. One of those categories was peripatetic workers, whose role involves travelling from place to place, such as cabin crew. For such workers, their base should be treated as their place of employment. This might be determined from where they are headquartered, or where their travels start and finish. Other factors such as where they live, the currency they are paid in and whether they contribute to National Insurance might also be relevant.
Where an employee both works and lives overseas, the fact that they might have been recruited in Great Britain will not automatically give them the protection of UK employment law unless they have equally strong connections with it.
In the recent case of Clyde & Co LLP v Bates van Winkelhof, the Court of Appeal held that the Lawson test should be applied when considering protection under the Equality Act. It went on to find that where the individual lives and/or works for at least part of the time in Great Britain (as opposed to working wholly overseas), an employment tribunal need only decide that the connection is "sufficiently strong" for it to be appropriate that the claim be heard in Great Britain. Ms Bates van Winkelhof passed the test as she worked partly in Great Britain, her contract was governed by English law, she was mainly paid from London and she appeared on a UK website as a partner of Clyde & Co.
Like much of UK employment law, the Equality Act must comply with and implement EU law. So, if Ms Cox’s cabin crew role was to have been based overseas and outside the EU, she probably did fall outside the scope of UK discrimination law and the fact that Emirates sought to recruit her in the UK would not have helped her.
Andrew Knorpel is head of the employment team at Mundays LLP