Carver v Saudi Arabian Airlines

For unfair-dismissal jurisdiction under the Employment Rights Act 1996, the phrase ordinarily works refers to the employee’s contractual place of work. The tribunal must examine express and implied terms over the whole period contemplated by the contract and identify the contractual base. A contractual power to transfer does not itself make each posting the place where the employee ordinarily works.

Sex-discrimination jurisdiction requires a different inquiry. The question is where, at the relevant time, the employee did her work wholly or mainly. Mainly means for the most part or on a balance of weight. The tribunal must rely on evidence of actual work, rather than comparing minimum flying hours with a notional working week.

The appellant worked as a flight attendant for the respondent for nearly ten years. Her contract was governed by Saudi law and permitted work at locations served by the airline. She was based in London for several years, but alleged that she resigned because pregnancy was incompatible with continued employment. She brought claims for constructive unfair dismissal and sex discrimination.

The Employment Tribunal held that it lacked jurisdiction over both claims. The Employment Appeal Tribunal upheld that decision but considered the law insufficiently clear. The central issue before the Court of Appeal was whether both claims were governed by the same territorial test.

Appeal allowed in part. The unfair-dismissal appeal was dismissed. The sex-discrimination jurisdiction issue was allowed to the limited extent that it was to be remitted to a differently constituted tribunal.

1. Unfair dismissal. Section 196(2) of the Employment Rights Act 1996 had to be read in the context of section 196 as a whole. The wording deliberately distinguished the place where an employee ordinarily works under the contract from the place where the employee is engaged in work wholly or mainly outside Great Britain.
2. Contract test. The Court of Appeal treated Wilson v Maynard Shipbuilding Consultants A.B. [1978] ICR 376 and Janata Bank v Ahmed [1981] ICR 791 as binding. The tribunal had to examine the express and implied contractual terms over the whole period contemplated by the contract and identify the employee’s contractual base. The appellant’s contractual power of transfer did not alter that approach. On that basis, her base could be nowhere other than Jeddah. The function test derived from Todd v British Midland Airways Ltd [1978] ICR 959 CA was rejected as unnecessary to that decision and inapplicable here.
3. Sex discrimination. Sections 6 and 10 of the Sex Discrimination Act 1975 required the tribunal to determine where, at the relevant time, the appellant did her work wholly or mainly. The tribunal had instead applied the ordinary-work test. Its comparison of 72 minimum flying hours with a notional 40-hour week had no evidential or legal foundation and amounted to an error of law. Mainly should be given its ordinary meaning of for the most part or on a balance of weight.
4. Separate opinions. Lord Justice Ward agreed, noting that an alternative contractual reading might have been possible, but considered the court bound by Wilson. Lord Justice Beldam also agreed.

The respondent was ordered to pay the appellant’s costs relating to sex discrimination. The appellant was ordered to pay the respondent’s costs relating to the Employment Rights Act claim. Leave to appeal to the House of Lords was refused.

• Court of Appeal allowed the appeal in part: the unfair-dismissal claim failed, while the sex-discrimination jurisdiction issue was remitted. [1999] EWCA Civ 1002
• Employment Appeal Tribunal upheld the Employment Tribunal’s decision on 18 February 1998, while suggesting that further guidance was required.
• Employment Tribunal held on 5 December 1996 that it had no jurisdiction to hear either complaint.