Tuesday Law Report: Jurisdiction test for industrial tribunal

23 March 1999

Carver (nee Mascarenhas) v Saudi Arabian Airlines

Court of Appeal (Lord Justice Beldam, Lord Justice Ward and Lord Justice Mantell) 17 March 1999

WHEN DECIDING whether an industrial tribunal had jurisdiction to hear a claim of unfair dismissal under section 196(2) of the Employment Rights Act 1996, the correct test in deciding whether an employee ordinarily worked within Great Britain was the "contract test", which obliged the court to look to the terms of his contract of employment. In relation to the question of jurisdiction for the purposes of section 6(2) of the Sex Discrimination Act 1975, a tribunal had to consider not where an employee ordinarily worked, but where, at the time of the alleged discrimination, he was "wholly or mainly" working.

The Court of Appeal upheld the decision of the Employment Appeal Tribunal that an industrial tribunal had lacked jurisdiction to hear the appellant's complaint of unfair dismissal, but remitted her claim of discrimination on the ground of her sex to a different industrial tribunal.

The appellant had worked for Saudi Arabian Airlines as a flight attendant until her resignation in 1996. Her contract of employment made no provision as to where she would be based save that "the employee shall be based at any location to which Saudi operates in or out of the Kingdom and may be transferred from one location to another". The contract also provided "this contract will be treated as 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 was based in London, during which time all her tours of duty began and ended at Heathrow airport. Long haul flights were usually between London and Jeddah or Riyadh, with intermediate flights between Jeddah and/or Riyadh and other Middle East destinations.

The appellant claimed before an industrial tribunal to have resigned to have a baby, pregnancy being incompatible with her employment. She alleged that she had been unfairly constructively dismissed in breach of section 94(1) of the Employment Rights Act 1996; and that she had been discriminated against by her employer on the ground of her sex contrary to section 6(2)(b) of the Sex Discrimination Act 1975.

The industrial tribunal found that the appellant did not ordinarily work within Great Britain and was thus not qualified to bring a complaint within the tribunal's jurisdiction under either Act. Its decision was upheld on appeal to the Employment Appeal Tribunal.

David Bean QC and Thomas Linden (Pattinson & Brewer) for the appellant; Timothy Brennan (Clifford Chance) for the respondent.

Lord Justice Mantell said that for the purposes of section 196(2) of the Employment Rights Act 1996, the correct test in deciding whether under his contract of employment an employee ordinarily worked outside Great Britain was the "contract test", which obliged the court to look to the terms of the contract rather than what had actually happened during the employment.

So viewed, and looking at the whole period contemplated by the contract, it was clear that the appellant's base could have been nowhere other than Jeddah. There had accordingly been no flaw in the reasoning of the industrial tribunal nor in the rejection of the appellant's appeal by the Employment Appeal Tribunal in relation to the claim of unfair dismissal.

For the purposes of section 6(2) of the Sex Discrimination Act 1975, however, the industrial tribunal had had to consider not where the appellant ordinarily worked, but where, at the time of the alleged discrimination, she was "wholly or mainly" working. It had, therefore, erred in deciding the question of jurisdiction on where the appellant was ordinarily working.

The question of jurisdiction under the 1975 Act should be remitted to a differently constituted industrial tribunal with a direction to determine the question of jurisdiction on the basis of where the appellant had been wholly or mainly working at the relevant time.