Foreign Planes

I have always struggled with the concept of forum or in lay man’s terms where do I sue? I had believed that Serco Limited v Lawson [2006] UKHL 3 had settled the matter at least for pilots based in this country.

Then I came across a novel attempt by an employer to get around the age discrimination legislation and my sense of doubt returned. In short in order to claim unfair dismissal under the retirement provisions of the Employment Rights Act 1996 you have to be protected by the Age Discrimination Regulations (ADR). If you are excluded by the regulations then you do not get any retirement related protection.

Under Reg 10 there is what appears to be an exclusion at Reg 10(3) which on the face of it prevents those employed on a foreign registered aircraft from claiming protection under the ADR. Taken to its logical conclusion it would appear all an aircraft operator has to do is to register the aircraft abroad and hey presto no protection.

In fact this is a bogus argument and I had no need to panic. If you read the whole of Reg 10 it soon becomes clear that far from restricting an employee’s rights Reg 10(3) broadens the scope of the ADR to cover those persons employed on British aircraft irrespective of whether the employee qualifies under any other part of the ADR.

So in short pilots who operate foreign registered aircraft but who carry out some of their work in this country will be able to claim protection under the ADR and so the right not to be unfairly retired.

Peter D

Update (24/10/08)

The ET in Watford have just handed down a decision holding that Reg 10(3) does in fact exclude employees working on foreign aircraft but who work for at least part of their time in Britain. This matter needs urgent judicial examination in a higher Court as this ruling effectively prevents acts of discrimination carried out within the UK from being considered by an employment tribunal. Watch this space!