The court discussed the test to be applied to an employment to see whether a British court had jurisdiction over it: ‘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, Megaw LJ 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 London Borough Council [1978] ICR 336, 344. The legislative purpose must have been that men who were based in Great Britain should be entitled to the protection of the [Trade Union and Labour Relations Act 1974], even though they ordinarily worked outside Great Britain. This court adopted what may be called the ‘base’ test. Megaw LJ said [1978] ICR 376, 387: ‘It is, in the absence of special factors leading to a contrary conclusion, the country where his base is to be which is likely to be the place where he 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 cases. As a rule, there is no term in the contract about exactly where he is to work. You have to go by the conduct of the parties and the way they have been operating the contract. You have to find at the material time where the man is based.’
Judges:
Lord Denning MR
Citations:
[1978] ICR 959
Jurisdiction:
England and Wales
Citing:
Cited – Nothman v Barnet London Borough County Council HL 1978
The normal retiring age for an employee is to be found by looking exclusively at the conditions of employment applicable to the group of employees holding his position.
Lord Salmon said: ‘If a woman’s conditions of employment provide that her . .
Cited by:
Distinguished – Carver (Nee Mascarenhas) v Saudi Arabian Airlines CA 17-Mar-1999
The applicant was recruited in Saudi Arabia in 1986 as a flight attendant under a contract expressed to be subject to Saudi Arabian law. After being trained in Jeddah, and then employed in India for four years, she was transferred to be based in . .
Cited – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
Cited – Crofts and others v Cathay Pacific Airways Ltd and others CA 19-May-2005
The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
Held: The pilots were employed . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 13 May 2022; Ref: scu.192278
