Qantas Cabin Crew (UK) Ltd v Alsopp & Ors

An Employment Tribunal must follow a relevant Employment Appeal Tribunal decision unless it can properly distinguish it. Insignificant factual differences, or differences in contractual wording which do not affect meaning, do not justify departure.

A written contract may be construed at a strike-out hearing where there is no relevant factual dispute and no reasonable basis for thinking that fuller investigation of the factual matrix could affect construction. A claim concerning an employer's obligation to provide living accommodation falls outside the Tribunal's contractual jurisdiction under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Claimants who knowingly stood by while earlier litigation was fought in their shared interest may be privies, issue-estopped, and barred from mounting a collateral attack on that judgment.

Qantas appealed against Employment Judge Hardwick's refusal, following a pre-hearing review, to strike out ten former cabin crew members' breach-of-contract claims. Three claimants later withdrew.

The claims concerned a living-away-from-home allowance. The Tribunal held that the earlier EAT decision in related proceedings, Qantas Cabin Crew (UK) Ltd v Lopez and Anor, did not control the claims because of factual and contractual differences. Qantas contended that the differences were immaterial, that the Tribunal lacked jurisdiction over the accommodation element, and that the proceedings were precluded by estoppel and abuse of process.

The central issue was whether the claims should be struck out without remission.

1. Appeal allowed. The Employment Judge erred on all six grounds. The contracts before the Tribunal were materially the same as those construed in the earlier EAT decision. Any differences were insignificant. The earlier decision's construction of both versions of the contractual wording was integral to its decision, not obiter. The Tribunal was therefore bound to follow it.

2. The alleged factual distinction concerning attendance at tax briefings could not affect the contractual construction. Six claimants had attended, and all had the relevant documents or access to them. The finding that none had attended was perverse. The Judge also wrongly treated the claimants' own understanding of the agreements as relevant to their objective construction.

3. Applying the approach in Khatri, a court or tribunal should not strike out a claim where fuller factual investigation might affect construction. Here, however, there was no relevant factual dispute requiring a trial. The contractual construction could properly be decided on the available material.

4. Under article 5(b) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, read with article 3(b), the Tribunal had no jurisdiction over the accommodation element. A term requiring payment of an allowance for living accommodation was a term imposing an obligation in connection with its provision. Qantas did not contend that this jurisdictional objection defeated any distinct food element.

5. The claimants had a sufficient identity of interest with the earlier claimants. They knew of, and stood by while, the earlier litigation was conducted. They were privies for issue-estoppel purposes. The renewed claims also constituted an abuse of process under the Henderson v Henderson principle and an impermissible collateral attack on the earlier judgment.

6. There was no reasonable prospect of success. As no oral evidence had been heard and the EAT had all necessary material, remission would serve no purpose. The EAT struck out the claims.

• Employment Appeal Tribunal: allowed Qantas's appeal and struck out the remaining claims: [2013] UKEAT 0318_13_1009.
• Employment Tribunal: Employment Judge Hardwick, sitting at Reading, refused at a pre-hearing review to strike out the claims or make deposit orders. Reserved reasons were sent on 8 May 2013.