Wilson v Maynard Shipbuilding Consultants A.B.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW |
| Judgment Date | 11 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1111-9 |
| Date | 11 November 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J1111-9
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On appeal from Order of Employment Appeal Tribunal)
Lord Justice Megaw
Lord Justice Bridge and
Lord Justice Waller
Mr. DENIS ORDE (instructed by Messrs. Mincoff, Science & Gold, Newcastle-upon-Tyne) appeared on behalf of the Appellant.
Mr. ALEXANDER IRVINE (instructed by Messrs. Baker & McKenzie) appeared on behalf of the Respondents.
The judgment which I am about to read is the judgment of the Court.
This appeal raises questions as to the construction of paragraph 9 (2) of Schedule 1 to the Trade Union and Labour Relations Act, 1974. That Schedule contains statutory provisions relating to unfair dismissal. The concept of unfair dismissal, which is wider than, and in many respects different from, the common law concept of wrongful dismissal, was originally enacted in the Industrial Relations Act, 1971. Part II of the First Schedule to the 1974 Act re-enacts the statutory provisions as to unfair dismissal which were contained in various sections of the repealed 1971 Act.
Paragraph 4 of Schedule 1 reads: "(1) In every employment to which this paragraph applies every employee shall have the right not to be unfairly dismissed by his employer, and the remedy of an employee so dismissed for breach of that right shall be by way of complaint to an industrial tribunal under Part III of this Schedule, and not otherwise.
"(2) This paragraph applies to every employment except in so far as its application is excluded by or under any provision of this Schedule".
The "exclusions" foreshadowed by paragraph 4 (2) are enacted in paragraph 9. We are not concerned with the exclusions set out in paragraph 9 sub-paragraph (1).
/Sub-paragraph (2)
Sub-paragraph (2) reads: "Paragraph 4 above does not apply to any employment where under his contract of employment the employee ordinarily works outside Great Britain".
Sub-paragraph (3), which is relevant for the construction of sub-paragraph (2), provides: "For the purposes of sub-paragraph (2) above a person employed to work on board a ship registered in the United Kingdom (not being a ship registered at a port outside Great Britain) shall, unless (a) the employment is wholly outside Great Britain, or (b) he is not ordinarily resident in Great Britain, be regarded as a person who under his contract ordinarily works in Great Britain".
The importance of the decision we have to make as to the meaning and effect of these two sub-paragraphs is enhanced by the fact that language which in material respects is indistinguishable is used in the Employment Protection Act, 1975, section 119 (5) and (6). Section 119 (5) provides: "(5) The following provisions of this Act do not apply to employment where under his contract of employment the employee ordinarily works outside Great Britain, that is to say, sections 22, 29, 35, 53, 57, 58, 59, 61, 64, 65, 70, 81, 99 and 100". The range of employees' rights and privileges thus excluded is extremely wide, as reference to the side-notes of the sections enumerated suffices to show.
Following the language of the statute, we shall refer to the appellant, Mr. Alan Wilson, as "the employee". We shall refer to the respondents, Maynard Shipbuilding Consultants A.B., as "the employer".
The employee submitted to the Industrial Tribunal a claim against the employer for unfair dismissal. The employer contended that the Industrial Tribunal had no jurisdiction because of paragraph 9 (2) of Schedule 1. The Industrial Tribunal by its decision of 28th November, 1975, upheld that submission. Theyheld that the employee, under his contract of employment, ordinarily worked outside Great Britain. The employed appealed to the Employment Appeal Tribunal, which, in a judgment delivered by Mr. Justice Phillips on 7th October, 1976, affirmed the decision of the Industrial Tribunal. The employee appeals to this Court.
The employee had been employed since 1970 as a staff consultant on engineering matters, by an English company, H.B. Maynard & Co. Ltd., the subsidiary of a United States corporation. In 1973, that contract was terminated as the result of the substitution of a new contract with a different employer, a Swedish company which is itself also a subsidiary of the American corporation. That company is "the employer" for the purpose of this appeal. The contract was made by the acceptance by the employee on 27th November, 1973, of the terms offered by the employer in a letter dated 2nd October, 1973. The date of employment was expressed to be from 2nd July, 1973. The contract contained no express term as to the place where the employee was to work:. There were express terms which may be relevant.
The employee was discharged by the employer with effect from 15th September, 1975. This is the alleged unfair dismissal which the employee seeks to establish.
The Industrial Tribunal rejected an argument for the employee that the 1970 contract, and what had happened thereunder as to place of work, were relevant matters. They held that it was the 1973 contract which was relevant. That was a conclusion of law. It is not now challenged. Another conclusion of law by the Tribunal which, also, is accepted by the employee, is that it was an implied term of the 1973 contract that the employee "was to work as required in any country in which his employers….had contracts". The Tribunal decided that "the material time to look at" was "from July, 1973, until he was discharged in September,1975". Having already found as a fact that during that period the employee had worked in Italy for 50 weeks and in the United Kingdom (sic) for 40 weeks ("….and there was a period of holiday"), the Tribunal said that "the applicant was working far more often outside the country than he was in England and that his work spanned more than one country. Accordingly we conclude that under this contract of employment the applicant ordinarily worked outside Great Britain".
The Tribunal's decision that the exclusion contained in paragraph 9 (2) barred the employee's right to assert unfair dismissal thus was based, and based solely, on the fact that the employee had, during the period between the start of the employment and the dismissal, worked more weeks in Italy than in Great Britain.
Before the employee's appeal came on for hearing in the Employment Appeal Tribunal, a judgment dealing with the construction of paragraph 9 (2) had been delivered in another case before the Appeal Tribunal, Portec (U. K.) Ltd. v. Mogensen (1976) 1 R.L.R. 209. In that case it had been held, in a judgment delivered by Mr. Justice Bristow, that "on the plain and ordinary meaning of its words, paragraph 9 (2) applies to anyone who, whether or not he ordinarily works inside Great Britain, ordinarily works outside". In other words, under paragraph 9 (2), an employee can "ordinarily work", in respect of the selfsame period of time, in two different countries: can be ordinarily working both in Great Britain and outside Great Britain. Even though he is ordinarily working in Great Britain, he may not have the statutory right as regards unfair dismissal, because he may simultaneously be ordinarily working outside Great Britain. In his judgment in the present case, Mr. Justice Phillips made it clear that the Appeal Tribunal regarded itself as bound to follow that earlier decision. It was, it would seem, on the basis of the correctness of the Portec construction of paragraph 9 (2) that the decision of the Industrial Tribunal in the present case was upheld.
With all respect, we regard paragraph 9 sub-paragraph (3) as showing that, in respect of the whole period of employment contemplated by the contract or any given period within it, a person cannot, during the selfsame period, be ordinarily working under his contract of employment both in Great Britain and outside Great Britain.
"Ordinarily works" cannot have a different meaning in the two sub-paragraphs, (2) and (3), of paragraph 9. In sub-paragraph...
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