Carver v Saudi Arabian Airlines

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE MANTELL,LORD JUSTICE WARD,LORD JUSTICE BELDAM
Judgment Date17 March 1999
Judgment citation (vLex)[1999] EWCA Civ J0317-3
Date17 March 1999
Docket NumberEATRF 98/0313/3

[1999] EWCA Civ J0317-3

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Beldam

Lord Justice Ward

Lord Justice Mantell

EATRF 98/0313/3

Carver (nee Mascarenhas)
Appellant
and
Saudi Arabian Airlines
Respondent

MR D BEAN QC with MR T LINDEN (Instructed by Messrs Pattinson & Brewer, London WC1N 3HA) appeared on behalf of the Appellant

MR T BRENNAN (Instructed by Messrs Clifford Chance, London EC1A 4JJ) appeared on behalf of the Respondent

1

Wednesday, 17 March 1999

LORD JUSTICE MANTELL
2

This appeal is concerned with the extent of the Employment Tribunal's jurisdiction to entertain claims under Part X Employment Rights Act 1996 and Part II of Sex Discrimination Act 1975. The point has been described as important and one on which guidance would be welcome.

3

The Facts.

4

Thankfully the facts are straightforward and I can take them quite shortly. For nearly ten years until her resignation on 10th April 1996 the appellant worked for Saudia Arabian Airlines as a flight attendant. The contract of employment (dated 16/4/86) was expressed to be subject to the laws of the Kingdom of Saudia Arabia. Further "the Commission for Labour and Settlement Disputes of the Kingdom Saudia Arabia shall settle any dispute arising from the implementation of the terms and conditions of this contract when such disputes are not settled amicably by the two parties."The contract made no provision as to where the appellant would be based save that "the Employee may be based at any location to which Saudi operates in or out of the Kingdom and may be transferred from one location to another."By another term "this contract will be treated cancelled without notice or compensation to the Employee should any of the conditions stipulated for employment or service continuation cease, such as medical or physical fitness, or pregnancy."The appellant did her training in Jeddah and then transferred to Bombay which was, so it appears, her place of origin and her domicile. After about four years she moved to London which remained her base until she resigned in 1996. During the time that she was in London all her tours of duty began and ended at Heathrow. She did a certain amount of work at the airport amounting normally to 11/2 hours before flights and on leaving Heathrow the first hour of any flight would have been within British airspace. Usually any long haul flight would have been between London and Jeddah or London and Riyadh although there would be intermediate flights between Jeddah and/or Riyajd and other destinations in the Middle East. After returning to Heathrow there would be a period of debriefing and in the nature of things the appellant spent days in London on standby. Her contract required her to fly seventy two hours per month in order to qualify for full salary. There remains a question as to whether or not the majority of her working time was spent within or without Great Britain.

5

She claims to have resigned because she wanted to have a baby and pregnancy was incompatible with her continuing in employment. So she alleges that she has been unfairly constructively dismissed in breach of section 94(1) of the Employment Rights Act 1996 and to have been discriminated against by her employer on the ground of her sex contrary to section 6(2)(b) of the Sex Discrimination Act 1975.

6

Decision of the Employment Tribunal.

7

On 5th December 1996 the Employment Tribunal (then styled the Industrial Tribunal) ruled that it had no jurisdiction to hear either complaint. It found the facts to which I have adverted and also stated the following: "her contract required her to fly for seventy two flying hours per month to qualify for her full salary. A number of ways of calculating the percentage of her working time taking place within Great Britain and outside it were suggested to the Tribunal. It has taken the view that if her normal working week was forty hours then 72/160 would indicated that more of her time was spent in the UK than outside it."The tribunal reminded itself by section 196(2) and (3) that in a case such as this the right not to be unfairly dismissed did not apply to employment where "under the employee's contract of employment he ordinarily works outside Great Britain" and in relation to the claim under section 6 of the Sex Discrimination Act 1975 that by section 10 the right not to be discriminated against does not arise if "the employee does his work wholly or mainly outside Great Britain."

8

The decision arrived at was as follows:

"We have been referred to a number of cases including Todd -v- British Midland Airways Ltd 1978 IRC 995, a Court of Appeal decision, Iran National Airlines Corporation -v- Bond a decision of the Employment Appeal Tribunal in March 1980 and Janata (sic)Bank -v- Ahmed (Qutubuddin) [1981] ICR 791, also a decision of the Court of Appeal. We have considered the decision given in the Todd case that where the contract of employment is not conclusive as to where the employee ordinarily works then the Tribunal should apply what is known as the "base test". We have also compared the facts in the case of Iran National Airlines Corporation -v- Bond with those which have been presented to us. The distinctions that we would draw between Mr Bond's contract of employment and that of Mrs Mascarenhas is that in Mr Bond's case he had been recruited in London, trained in London, required to be resident in London, paid in London in sterling, paid national insurance contributions and paid United Kingdom income tax, and he was also a British National, and he had worked under those conditions for the whole of his employment.

Our finding, is having weighed all the facts which have been presented to us,that Mrs Mascarenhas did not ordinarily work within the United Kingdom and that she is not qualified to bring a complaint within the Tribunal's jurisdiction under either the Sex Discrimination Act 1975 or the Employment Act 1996."

9

That decision was appealed to the Employment Appeal Tribunal which in a careful judgment delivered on 18/2/98 by Morison J, its President, upheld the Tribunal's decision but in so doing observed that the law was not altogether clear and suggested that this court should have an opportunity to give further guidance to Tribunals who have to decide whether claims under the Employment Rights Act and Sex Discrimination Act are within its jurisdiction.

10

The Law.

11

The Tribunal applied the same test for jurisdiction to the claim under the Sex Discrimination Act as it did to the claim under the Employment Rights Act, that is whether or not the appellant ordinarily worked within the United Kingdom (meaning Great Britain). The Employment Appeal Tribunal recognised that the Employment Tribunal had not distinguished between the two statutes but was not prepared to condemn the decision on that score appearing to take the view that in spite of the different wording the two tests were the same. At p.20 of the transcript the President said, "We would consider it to be a strange and undesirable result that a person could be held ordinarily to work wholly or mainly in England and at the same time doing his/her work wholly or mainly outside Great Britain, or vice versa. If therefore, as appears likely, the Chairman simply equated the two tests, we could understand why and would not wish to say that he was wrong on that account."

12

Whilst remarking that the President has there misreported the wording of Section 196(2) I would, nevertheless, agree with the sentiment if the different wording of the two statutes can sensibly to be given the same meaning. However the wording of the relevant sections deserves a little closer attention than it has so far received. Section 196(2) reads:

"The provisions to which this subsection applies do not apply to employment where under the employee's contract of employment he ordinarily works outside Great Britain."

13

Among the provisions to which the subsection applies is Part X of the Act which in turn includes an employee's right not to be unfairly dismissed by his employer, (section 94(1)). Section 196(2) must be read in the context of section 196 as a whole. Section 196(1) provides: "Sections 1 —7 and sections 86 —91 (I interpose, nothing to do with unfair dismissal) do not apply in relation to employment during any period when the employee is engaged in work wholly or mainly outside Great Britain unless —(a) the employee ordinarily works in Great Britain and the work outside Great Britain is for the same employer". So it is quite clear that with regard to the Employment Rights Act 1996 Parliament allowed for a distinction to be made between the place where under the contract of employment the employee ordinarily works and the place where the employee is wholly or mainly engaged in work. A similar distinction had been made under section 141 of Employment Protection (Consolidation) Act 1978 though not under the Trade Union and Labour Relations Act 1974 where although para. 9 schedule 1 uses both expressions they are not so juxtaposed as to necessarily suggest a different meaning.

14

So far as is material Section 6(2) of the Sex Discrimination Act 1975 provides:

"It is unlawful for a person in the case of a woman employed by him at an establishment in Great Britain to discriminate against her —(b)…by dismissing her or subjecting her to any other detriment."

15

Section 10 gives us the meaning of employment at an establishment in Great Britain. Both subsections (1) & (2) are relevant:

"(1) For the purposes of this Part and section 1 of the Equal Pay Act 1970 ("the relevant purposes"), employment is to be...

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    ...happens in practice was clearly an obiter dictum and the 'contract' test continued to be applied in later cases, including Carver v Saudi Arabian Airlines [1999] ICR 991. Mrs Carver was employed as a flight attendant under a contract which provided that she might be based at any location wh......
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1 books & journal articles
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