Bird v Racal Decca Marine Ltd [1995] UKEAT 709_94_2403

EAT
Bird v Racal Decca Marine Ltd
[1995] UKEAT 709_94_2403 · 1995-03-24
MR JUSTICE HOLLAND: Mr Bird appeals from a decision of an Industrial Tribunal sitting at London (South) on the 4th May 1994. That Tribunal had before it a Preliminary Issue arising out of Mr Bird's complaint of unfair dismissal by Racal - Decca Marine Ltd ("Racal"). The latter invoked Section 141(2) Employment Protection (Consolidation) Act 1978 in so far as it specified that Part V of the Act (which includes the provisions as to unfair dismissal) "..... (does) not apply to employment where under his contract of employment the employee ordinarily works outside Great Britain." The Industrial Tribunal found that the point was well taken and that Mr Bird could not therefore make a complaint of unfair dismissal.

A chronology will serve to set out the facts:-

23rd October 1967 - Mr Bird, then aged 23, entered Racal's employment as a Field Staff Technician, which employment kept him abroad, working on projects in Africa, Australia and the Middle East. Whether there was then a contract of employment in, or evidenced by writing is now not known.November 1976 - Mr Bird is issued by Racal with a Statement of Terms of Employment specifically as required by the Contracts of Employment Act 1972 . The Statement commences:
"This statement contains particulars of certain of the terms of your employment. Other terms and conditions are contained in the Employee Handbook and in any applicable Trade Union Agreement."
The statement is silent as to place of work but there is an inference that it refers to employment within the United Kingdom: after two days absence through sickness the employee has to provide a National Health Certificate. The Statement refers to an Employee Handbook.2nd July 1982 - Mr Bird enters into an Overseas Service Agreement with his employers covering a two month period to be spent working for them in Holland. This agreement is in writing: its present significance is to evidence what is contended by Mr Bird to have been standard practice, that is, that on each occasion when a fresh period of overseas service was agreed upon an Agreement in the form put before us would be completed. Racal do not dispute this contention. Turning to the relevant terms such include the following:-
"16. Following completion of your overseas leave entitlement, you will, subject to satisfactory service re-commence employment on your normal U.K duties established prior to the commencement of this agreement at your normally established U.K. salary .....
20. Your standard conditions of employment applicable while you are working in the U.K. will not apply during the time you are serving under this agreement ....."11th April 1984 - Mr Bird, now engaged to be married and tiring of overseas service, applied in writing to his employees to be appointed Assistant Engineer in Jersey.20th January 1985 - Racal write:-
"We are pleased to confirm your transfer from Overseas Operations to U.K. Chains Department with effect from 1st January 1985 as Assistant Station Engineer at a commencing salary of £9960.36 per annum. We confirm continuity of service and conditions of employment will remain the same expect where advised by the Head of U.K. Chains Department."
He takes up his duties in Jersey; an Overseas Service Agreement is not made for the ensuing period of service.16th December 1988 - Promotion comes by way of a further letter confirming his appointment as Station Engineer of "South West British Red Slave". This latter description refers to one of the networks of Decca Navigator Transmitting Stations. The South West British Chain consists of a main station in South Devon and three 'slave' stations at, respectively South Wales, the Scilly Isles and Jersey. Mr Bird remained in this employment until 10th September 1993 when he was dismissed, purportedly for redundancy, along with certain other staff. It is this dismissal that founds his complaint.Racal contend that Mr Bird is debarred from bringing this complaint by reason of the application of Section 141(2) to these admitted facts. Thus, they contend that under his contract of employment with them, Mr Bird ordinarily worked outside Great Britain, that is, in Jersey. They contend that the effect of the letter of the 16th December 1988 was to vary his contract of employment so as to make Jersey his base. "Red Slave" is the Jersey Station. Their further case is that even if the letter did not have that effect so that there was no specific contractual term requiring him to work outside Great Britain, nonetheless such a term can be implied. To advance this latter argument they cite Wilson v Maynard Shipbuilding [1978] I.C.R. 376 wherein the Court of Appeal had to consider this statutory provision, then Paragraph 9(2), Schedule 1, Trade Union and Labour Relations Act 1974 . Two passages from the judgment of the Court of Appeal merit present citation:-At page 385:
"So the issue under paragraph 9(2) must be answered by reference to the relevant terms of the contract of employment, express or implied. In the ordinary way ..... one may not look at what the parties did under the contract for the purpose of construing its terms. There would seem, however, to be an exception to the strictness of that doctrine where there must be a relevant term, but what that term is cannot be ascertained otherwise than by looking at what the parties did ..... But such evidence, if admissible in a particular case, must be treated with special care."
And at page 387:
"In such a case as the present it appears to us that the correct approach is to look at the terms of the contract, express and implied (with reference, it may be, to what has happened under the contract, for the limited purpose which we have expressed above) in order to ascertain where, looking at the whole period contemplated by the contract, the employee's base is to be. 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. Where his base, under contract, is to be will depend on the examination of all relevant contractual terms. These will be likely to include any such terms as expressly define his headquarters, or which indicate where the travels involved in his employment begin and end; where his private residence-his home-is, or is expected to be; where, and perhaps in what currency, he is to be paid; whether he is to be subject to pay national insurance contributions in Great Britain. These are merely examples of factors which, among many others that may be found to exist in individual cases, may be relevant in deciding where the employee's base is for the purpose of his work, looking to the whole normal, anticipated, duration of the employment."
Racal therefore contend that if there was no relevant term specifying where Mr Bird was ordinarily to work, the Industrial Tribunal could look at the reality to establish such term - and the reality was a base in Jersey.What is Mr Bird's response? His argument (to which we pay tribute for its clarity and cogency) is to the following effect:-1. His contract of employment was as reflected in the Statement of Terms of November 1976. True, there had been specific variations when he had entered into Overseas Service Agreements but the last such had expired before he first went to Jersey.2. By reference to that Statement his base had to be within Great Britain. Not only was such a base consistent with its terms, but the fact of such being his base rendered necessary the successive Overseas Service Agreements - if his base had been overseas these would not have been necessary. Further and perhaps more cogently, he can point to Section 12 Contracts of Employment Act 1972 (now Section 141(1) of the 1978 Act) which provides "Sections 1 to 5 of this Act shall not apply in relation to employment during any period when the employee is engaged in work wholly or mainly outside Great Britain unless the employee ordinarily works in Great Britain and the work outside Great Britain is for the same employer." Mr Bird can thus submit that the fact of a Statement of Employment expressly issued pursuant to the Act, (that is, Section 4 thereof) which statement prevailed throughout his employment except when expressly superseded by the Overseas Services Agreements, is wholly consistent with a base within the jurisdiction.3. The letter of the 16th December 1988 neither did nor could vary the Statement.4. There was no reason to ascertain the term as to where he was based by reference to the fact that as an employee he ordinarily worked in Jersey. In any event he was ordinarily working in the South West British Chain - it was adventitious that he was at its Jersey station and not, say, at its South Wales Station. If one had to look to what the parties did, then he fell to be considered as a (South West Britain´ employee.Mr Bird therefore submits that his contract was for employment in Great Britain and that it matters not that in the event his physical place of work became the station in Jersey.The Industrial Tribunal unanimously accepted the contentions of Racal. We are in agreement in ruling that one of the matters taken into account by the Tribunal was not in point, namely the steps taken by Racal after the dismissal to help persuade the Jersey authorities that Mr Bird had always had a settled intention of residing in Jersey so that he might remain there as a resident, notwithstanding the termination of the employment. Thereafter we have to disagree.The majority (the lay members) take the view that Racal's acceptance in 1984 of Mr Bird's application for the post of Assistant Engineer in Jersey together with the letter of the 16th December 1988 were sufficient specifically to vary the contract of employment so that under it Mr Bird was ordinarily working in Jersey, that is, outside Great Britain. Their alternative view is that the relevant term cannot be ascertained other than "by looking at what the parties did": once that exercise is undertaken, it is manifest that Mr Bird ordinarily worked outside Great Britain, and it must be inferred that that base was dictated by the contract of employment. The majority are sympathetic to Mr Bird and critical of the haphazard approach of Racal to this matter of contracts of employment, but simply cannot put aside the significance of the prolonged and (but for the dismissal) indefinite Jersey based work.The minority (myself) respects and is concerned about the force of the majority view. That said, this Tribunal is required to ascertain by reference to a contract proferred by Racal as employers as to whether Mr Bird has been excluded from the jurisdiction of the Industrial Tribunal. The construction should be strict and (if there be doubt) against Racal. The Statement 1976 should not have been proferred if he were then based outside Great Britain and its terms are consistent with a base within the jurisdiction. There being no more Overseas Service Agreements, that Statement remains extant and indeed is compatible with a posting to the South West British Chain. There is no need to construe the agreement by reference to the fact of a place of work in Jersey.In result, this appeal must be dismissed.We are in agreement in granting leave to Mr Bird to appeal.