Brace v The RAF Board & Anor [1996] UKEAT 984_95_1106

EAT
Brace v The RAF Board & Anor
[1996] UKEAT 984_95_1106 · 1996-06-11

JUDGE PETER CLARK :

The issue in each of these appeals, heard together on 11th June 1996, is whether these applicants before the Lincoln Industrial Tribunal were members of the air force of the Crown and thereby excluded from bringing complaints of unfair dismissal and for redundancy payments against the respondents by virtue of Section 138 (3) of the Employment Protection (Consolidation) Act 1978 ["the 1978 Act"]. That tribunal, chaired by Mr D M Richards, sitting on 6th July 1995, decided that they were. Extended reasons for those decisions are dated, in the case of Mr Lewis, 4th August 1995 and in that of Mr Brace, 6th September 1995. It is against those decisions that these appeals are brought.

THE BACKGROUND

The material background facts were not in dispute and are these:

PHILLIP LEWIS

Mr Lewis joined the RAF as a Gunner in January 1965 on a 12 year engagement. He was discharged on 28th December 1977 with the rank of Corporal. In December 1979 he enlisted in the Royal Auxiliary Air Force ["RAAF"], initially on a four year Reserve engagement. He was given the rank of Sergeant upon enlistment in recognition of his earlier regular service. He was based at No. 2623 Squadron (RAAF) RAF Honington throughout his auxiliary service, extending his engagement by a further four years, attaining the paid rank of Acting Flight Sergeant. In December 1987 he terminated his engagement prematurely by six months.In October 1989 he rejoined the RAAF at RAF Honington on a four year reserve engagement, being appointed to the substantive rank of Flight Sergeant. Initially he worked a 100 days per annum but in 1990 this was extended to 270 day annually. He worked in the Squadron bar. In October 1993 he extended his terms of service by a further four years. However, on 18th April 1994 No. 2623 Squadron was disbanded. Mr Lewis was discharged on that day on the grounds "Services No Longer Required" .

LYNDON BRACE

He joined the RAAF on 23 August 1988, initially on a four year engagement, later extended by a further four years in April 1992. He was based at RAF Waddington. On 18th April 1994 No. 1339 Wing, to which he was then attached, was disbanded. He was finally discharged, "Services No Longer Required" , on 26th September 1994.From October 1989 he worked four days per week as a mechanic with the Transport Section at RAF Waddington under the command of Wing Commander Markey.

GENERAL

At the dates of termination of their service both appellants were described as "Full Time Auxiliaries" ["FTA"].In the case of Mr Brace, the tribunal's attention was drawn to a document headed "Working Draft" and prepared by his Commanding Officer, Wing Commander Markey. It sets out outline proposed Terms of Employment for FTAs. The tribunal held that the document had no official standing, and that the author had no authority to bind the RAAF. No contract of employment in writing was ever given to Mr Brace.

THE EMPLOYMENT LAW

Section 138 of the 1978 Act provides:
"(1) Subject to the following provisions of this section, Parts I ..., II, III ..., V, VIII and this Part and section 53 shall have effect in relation to Crown employment and to person in Crown employment as they have effect in relation to other employment and to other employees.
(2) In this section ... "Crown Employment" means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by any enactment.(3) This section does not apply to service as a member of the naval, military or air forces of the Crown ..., but does apply to employment by any association established for the purposes of Part VI of the Reserve Forces Act 1980. "

THE RIVAL CONTENTIONS

For the appellants Mr Kibling submits that their duties fell into two categories. Purely military duties, such as training and attending camps, were properly to be regarded as RAAF duties. However, the work performed, in the case of Mr Lewis in the Squadron bar and in that of Mr Brace as a mechanic, fell into a separate category. He described those tasks as work under a "day to day contract" . The RAAF duties, he accepts, are excluded from statutory employment protection rights by virtue of Section 138(3) of the 1978 Act. The latter, he contends, were performed under a contract of service and are not caught by that provision.For the respondent, Mr Seabrooks submits that no such distinction can properly be made. He points to the following matters which he says are indicative of service in Her Majesty's Air Force:-
"(a) The Appellants each enlisted on an engagement for a particular term of service. (b) On enlistment the Appellants each completed an attestation form. (c) The Appellants were each required to swear an oath of allegiance. (d) On enlistment the Appellants were each "posted" to a particular unit. (e) The Appellants were each subject to the Royal Auxiliary Air Force Regulations and to military law when on duty. (f) The Appellants were obliged to wear a uniform when on duty. (g) The Appellants were each given a rank. (h) The payment of the Appellants' wages came from the Royal Auxiliary Air Force training budget. (i) The Appellants paid tax and national insurance in the same way as members of the regular Air Force and their pay included an element in respect of the "X factor". (j) The Appellants were only paid for the days that they actually worked. (k) The Appellants' discharge was governed by Section 99 of the Reserve Forces Act 1980. ... (l) Under Section 99 of the Reserve Forces Act 1980 and Regulation 419(b) of the Regulation for the Royal Auxiliary Air Force (AP968) an appeal against discharge or the terms thereof could be made to the Defence Council who decision was final."

THE ARGUMENT

Section 223 of the Air Force Act 1955 ["the 1955 Act"] defines the term "regular air force" as meaning all of Her Majesty's air forces other than the air force reserve and the RAAF. That definition is preserved by Section 156 of the Reserve Forces Act 1980 ["the 1980 Act"].It is common ground between Counsel that at the material times neither appellant was a member of the regular air force.Section 9(1) of the 1980 Act provides:
" (1) Her Majesty may as provided by Part V of this Act maintain the force known as the Royal Auxiliary Air Force."
By Section 10, in times of national danger, members of any reserve force may be called out for permanent service in any part of the world, and by Section 22 they may be called out for home defence service.Part V of the 1980 Act provides for the Government, discipline and pay of the RAAF. In particular Section 90 provides:
"Orders made under Section 88 above as respects the Royal Auxiliary Air Force may -
...(c) provide for the constitution of a permanent staff, including adjutants and non-commissioned officers who shall, except in special circumstances certified by the air officer commanding, be members of Her Majesty's regular air force;"It was submitted by Mr Kibling that the appellants were not "permanent staff" within the meaning of Section 90(c) of the 1980 Act, and that the Industrial Tribunal was wrong in law to make a finding to that effect in paragraph 6 of their decisions.We accept, as did the respondent, that the appellants were not members of a permanent staff of the RAAF, and thus members of the regular air force, within the meaning of Section 90(c). If and insofar as the tribunal made a finding to that effect it was wrong to do so. However, that does not dispose of the matter. In our judgment FTAs may carry out the whole of their duties as members of the RAAF without necessarily being "permanent staff" as there defined, and thus members of the regular air force.In our view the Industrial Tribunal was entitled to conclude, based on the indicia relied upon by the respondent, that all their duties were carried out as members of the RAAF. We can find no basis in fact or law for the suggestion that their duties should be split in the way contended for by Mr Kibling. They were not members of the regular air force as defined in Section 223 of the 1955 Act, adopted in Section 156 of the 1980 Act; they were not members of a permanent staff and therefore members of the regular air force within the meaning of Section 90(c) of the 1980 Act; they were not employed by an association established for the purposes of Part VI of the 1980 Act, within the meaning of Section 138(3) of the 1978 Act. They were not "civilian" employees in Crown employment for the purposes of Section 138(1) of the 1978 Act. They were, for all purposes, members of the RAAF and as such were members of the air force of the Crown within the meaning of Section 138(3) of the 1978 Act, and thereby excluded from the employment protection provided by that Act.Accordingly we see no grounds for interfering with these decision of the Industrial Tribunal. The appeals must be dismissed.We would add this observation. FTAs such as these appellants fell between two stools; they were neither regular forces personnel; for whom compensation on redundancy is provided for under Queen's Regulations , nor civilian personnel entitled to statutory employment protection. That cannot be right. As Mr Brace put it in a letter to Wing Commander Fonfe dated 4th February 1995:

"We feel the RAF has a moral if not legal duty to address."

We are told that this question is to be addressed in the Reserve Forces Act 1996 , which will make FTAs subject to Queen's Regulations , and thus entitled to the same compensation for loss of their livelihood as members of the regular forces. Such provisions come too late for these appellants. We are bound to construe the law as it applied to them in 1994.Finally there will be an order for Legal Aid taxation of Mr Lewis's costs in the appeal.