Todd v British Midland Airways Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EVELEIGH,SIR DAVID CAIRNS |
| Judgment Date | 20 July 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0720-1 |
| Docket Number | EAT/11/77 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 1978 |
[1978] EWCA Civ J0720-1
The Master of the Rolls (Lord Denning)
Lord Justice Eveleigh and
Sir David Cairns
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Employment Appeal Tribunal
MR. E.C, EVANS-LOMBE. Q.C. and MR, M. CRYSTAL (instructed by Messrs. Smith Morton & Long, Solicitors, Colchester) appeared on behalf of the Appellant.
MR. R. SEARS, Q.C. and MR. D. LAMMING (instructed by Messrs. Booth & Blackwell, Solicitors, London) appeared on behalf of the Respondents.
Ian James Todd was a First Officer employed by British Midland Airways Limited. They had a fleet of Boeing 707s, which they used on international flights. Mr. Todd was based in this country, but he had to carry out international flights.
Mr. Todd has been with British Midland Airways Limited since 1970. But unfortunately there was an incident on the night of 12/13th June, 1976, at the Hotel do Lac in Tunis. No doubt the aircraft was at Tunis overnight. A party was held that night in Mr. Todd's room. During the party fire extinguisher seems to have come off a bracket in his hotel room. It landed on the hotel manager's car. There was an inquiry by Captain Hardy ten days later, on the 22nd June, 1976. As a result Mr. Todd was dismissed.
He brought a claim before the industrial tribunal on the ground that he was unfairly dismissed. In his application he said: "I understand that it is alleged that a number of fire extinguishers were removed from their brackets in the hotel and that these extinguishers and ash-trays were thrown out of the window of my bedroom, together with empty bottles. So far as I am concerned I was in no way responsible. I was given no warning regarding my dismissal and I consider in all the circumstances I have been unfairly dismissed".
The company replied as follows: "Following an investigation by Captain R. Hardy into an incident at the Hotel du Lac, Tunis, on the night of 12th/13th June, 1976, which resulted in damage to property exceeding £1,000, the Respondent had every reason to believe that the Applicant was responsible for such damage and consequently guilty of grave misconduct prejudicial to the interests of the Respondent. Further, when given anopportunity prior to his dismissal to give his own account of the incident, he failed to give any information about his actions on the night in question".
Those are the two versions about that incident. But it has not yet been investigated. A preliminary point has been taken. It is said that the industrial tribunal has no jurisdiction to go into this complaint. There are only two paragraphs which I need read from the Trade Union and Labour Relations Act 1974. Schedule 1, Part II, paragraph 4 says that: "… every employee shall have the right not to be unfairly dismissed by his employer".
But there is an exception to that in paragraph 9(2), which says: "… Paragraph 4 above does not apply to any employment where under his contract of employment the employee ordinarily works outside Great Britain".
Those are the important words: "ordinarily works". The industrial tribunal held that Mr. Todd ordinarily worked outside Great Britain: because most of his working hours were outside Great Britain. The Employment Appeal Tribunal also so held. So paragraph 9(2) applied and the tribunal had no jurisdiction.
In coming to that conclusion the tribunals below were much influenced by a series of previous decisions of the tribunals. These started with Portec (U.K.) Ltd. v. Mogensen (1976) Industrial Cases Reports 396, where a man was the managing director of a British subsidiary of an American company. He was working partly in Wales (that is, in Great Britain) and partly in Paris. Because his employment ordinarily took him to both places - one in Great Britain and one outside Great Britain - it was held that the tribunal had no jurisdiction. Following that case, it was held several cases that if aman ordinarily is working both in Great Britain and outside Great Britain, then the tribunal had no jurisdiction and he cannot claim.
Those cases are logical enough if paragraph 9(2) is given a literal construction. A man who "ordinarily works" for three months, six months, or nine months outside Great Britain is excluded, even though he ordinarily works the rest of his time inside Great Britain. That literal construction, however, led to gross injustice, particularly with regard to men working on oil rigs who were based in Great Britain, but working for most of their time outside our territorial waters in the North Sea. Something was done to remedy that by an Order in Council which was drawn to our attention. The particular grievance of the oil rig men was remedied by the Off-Shore Employment Order of 1976, No. 766. But that remedy only applied to the oil rig men on rigs on our continental shelf. It did not apply to other cases, such as the case we have here
Those earlier cases were reversed, however, by this court in Wilson v. Maynard Shipbuilding (1978) 2 Weekly Law Reports 466. In that case a man worked for an American company both inside Great Britain and outside Great Britain. The tribunals below had held that he could not claim at all, even though he worked more often in Great Britain than outside. He worked 63.6 per cent of his time in Great Britain, and 36.4 per cent outside Great Britain. The tribunals below held that, because he ordinarily worked outside Great Britain, as well as inside, the tribunals had no jurisdiction, and he could not claim. But this court, I am glad to say, overruled that decision. It laid down quite clearly that a man who ordinarily works both inside Great Britain and outside Great Britain is not therebyautomatically excluded from the benefits of the Act.
But the question arises: What is the right way of dealing with such cases? Of course when the man works all, or nearly all, his time in Great Britain there is no difficulty. Lord justice Megaw said in Wilson v. Maynard Shipbuilding Consultants at page 472:
"If the contract by its express or implied terms requires that the employee should do his contractual work wholly, or substantially wholly, in Great Britain, the answer will normally be simple. So, conversely, if under the contract the contractual work has to be carried out, wholly or substantially wholly outside Great Britain. This will dispose, quite simply, of many cases".
But in other cases there is more difficulty. I refer particularly to the type of case we have here of the airline pilot. He is based in Great Britain, but ordinarily works for the greater part of his time on international flights overseas. Mr. Todd ordinarily worked for 53 per cent of his time outside Great Britain. In those circumstances, Lord Justice Megaw and his colleagues departed from the literal words of paragraph 9(2) and adopted a liberal approach. They looked at the "general legislative purpose" such as I described in Nothman v. Barnet Council (1978) 1 Weekly Law Reports at page 228. The legislative purpose must have been that men who were based in Great Britain should be entitled to the protection of the Act, even though they ordinarily worked outside Great Britain. This court adopted what may be called the "base" test. Lord Justice Megaw said at page 474:
"It is, in the absence of special factors leading to a contrary conclusion, the country where his base is to be whichis likely to be the place where it is to be treated as ordinarily working under his contract of employment".
The "base" test, if I may say so, is a good sensible way of overcoming the literal meaning of the words "ordinarily working" in the statute. It affords good guidelines for the tribunals which have to deal with so many of these cases. A man's base is the place where he should be regarded as ordinarily working, even though he may spend days, weeks or months working overseas. I would only make this suggestion. I do not think the terms of the contract help much in these...
To continue reading
Request your trial
-
Carver v Saudi Arabian Airlines
...mainly outside Great Britain." 8The 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 Tribun......
- Sonali Bank v Rahman
-
R Fleet Maritime Services (Bermuda) Ltd v The Pensions Regulator
...their base than working at their base. 24 A case involving an airline employee reached the Court of Appeal shortly afterwards. In Todd v British Midland Airways [1978] ICR 959 the employee was based in the UK but worked as a flight officer on international flights. The Court of Appeal allow......
-
Lawson v Serco Ltd; Botham v Ministry of Defence; Crofts v Veta Ltd
...purposes of the statute, his place of employment, remains valid. It was applied by the Court of Appeal to an airline pilot in Todd v British Midland Airways Ltd [1978] ICR 959, where Lord Denning MR said, at p 964: "A man's base is the place where he should be regarded as ordinarily workin......