this the one you meant Jordan ?
Times Law Reports
Hong Kong pilots employed in England
COURT OF APPEAL
Published May 31, 2005
Crofts and Others v Cathay Pacific Airways Ltd and Others
Before Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Waller and Lord Justice Maurice Kay
Judgment May 19, 2005
An employment tribunal had jurisdiction to determine unfair dismissal claims brought by international airline pilots employed by Hong Kong companies since their contracts of employment required them to be based in England.
They were therefore employed in Great Britain for the purposes of section 94(1) of the Employment Rights Act 1996. Similarly the tribunal had jurisdiction to hear contractual claims brought by those pilots in respect of their dismissals.
The Court of Appeal so held by a majority, the Master of the Rolls dissenting, when, inter alia, allowing the appeals of five pilots employed by Veta Ltd, a subsidiary of Cathay Pacific Airways Ltd, against the decision of the Employment Appeal Tribunal (sub nom Dickie v Cathay Pacific Airways Ltd (2004) ICR 1733) and remitting their unfair dismissal and breach of contract claims to the employment tribunal for determination.
The appeals of six pilots employed by Cathay Pacific against the dismissal of their contractual claims and an appeal of a pilot employed by USA Basings Ltd were dismissed.
Mr David Griffiths-Jones, QC and Miss Joanna Heal for the pilots; Mr Christopher Jeans, QC and Miss Anya Proops for the employers.
THE MASTER OF THE ROLLS, dissenting, said that Cathay Pacific was Hong Kong's major airline. Until the early 1990s all Cathay Pacific pilots were employed by Cathay Pacific Airways Ltd.
Then there was a change of policy to enable some pilots to live in countries other than Hong Kong. Pilots could be allocated a base area from which their flight cycles would start and at which they would end. One such home base was London Heathrow.
Pilots for whom Europe was the base area entered into contracts of employment with Veta Ltd, a subsidiary of Cathay Pacific registered in Hong Kong, which was little more than a shell company.
The contracts of employment of all the pilots were governed by Hong Kong law. Their salaries were paid into Hong Kong bank accounts. They held Hong Kong professional pilots' licences. All training, disciplinary and grievance procedures took place in Hong Kong, from where flight instructions were issued.
Five Veta pilots and six Cathay pilots complained of unfair dismissal and breach of contract. The employment tribunal held that it had jurisdiction to entertain the unfair dismissal claims of the Veta pilots as their employment had a substantial connection with Great Britain and Heathrow was to be regarded as their principal place of work, but it had no jurisdiction to consider the unfair dismissal claims of the Cathay pilots.
It had jurisdiction to consider the contractual claims of both, but whereas the contractual claims of the Cathay pilots should be stayed on the ground of forum non conveniens, those of the Veta pilots should not.
Before the hearing in the Employment Appeal Tribunal, the Court of Appeal gave judgment in Lawson v Serco Ltd (The Times January 30, 2004; (2004) ICR 204) on the ambit of application of section 94(1) of the 1996 Act.
The Cathay pilots abandoned their challenge to the decision on unfair dismissal. The Employment Appeal Tribunal dismissed all appeals in respect of the contract claims.
Applying Serco it decided that the Veta pilots' case on the 1996 Act was borderline and should be remitted to a fresh tribunal for rehearing, which should also consider whether the Veta pilots' contract claims should be stayed on the ground of forum non conveniens.
Section 94(1) of the Employment Rights Act 1996 formed part of Part X of the Act, which was concerned with unfair dismissal. Section 196 excluded from the ambit of the Act certain employees engaged in work wholly or mainly outside Great Britain.
The wording of section 196(2) might have been read as excluding from the application of Part X international pilots who necessarily spent most of their working hours outside Great Britain.
However, in Todd v British Midland Airways ((1978) ICR 959, 965) Lord Denning, Master of the Rolls, considering the predecessor of section 196(2), held that a man's base was the place where he ought to be regarded as ordinarily working, even though he might spend days, weeks or months working overseas.
The whole of section 196 was repealed by section 32(3) of the Employment Relations Act 1999. The authorities gave very little guidance as to the principles of statutory construction that should be applied to a such a repeal.
In Serco the Court of Appeal laid down the test that Part X of the 1996 Act applied to employment in Great Britain. The court rejected alternative tests of whether the employee had a substantial connection with the United Kingdom, or the base where the employee was employed was within the United Kingdom or whether he ordinarily worked in the United Kingdom.
In due course the House of Lords would rule in Serco whether employment in Great Britain was the correct definition. In the meantime the court was bound to apply it.
The effect of Serco was to restrict protection from unfair dismissal to those employees who, under their contracts of employment, worked in Britain. The tribunal concluded that on the facts the Cathay pilots were based in Hong Kong, but the centre of operations of the Veta pilots was London.
His Lordship said that provisions in section 196 by which mariners employed to work aboard a ship registered in the United Kingdom were to be regarded as ordinarily working in Great Britain, were replaced, after the repeal of section 196, expressly in section 199. Absent express provisions, which had not been introduced, section 94(1) of the 1996 Act could not apply to international airline pilots.
In relation to the contract claims, if they were to proceed before the employment tribunal, there was a strong case for arguing that that factor made the tribunal the more appropriate forum for the parallel claims for breach of contract.
LORD JUSTICE WALLER said that he could not accept that by virtue of the strict application of the Serco test section 94(1) of the 1996 Act could not apply to international airline pilots.
His Lordship found it difficult to contemplate that a pilot such as Mr Todd, who by virtue of his contract was found to be ordinarily working in Great Britain under the previous legislation, was, because of the repeal of section 196, no longer employed here.
Even if the Serco test was appropriate, that test had to be construed with sufficient flexibility to bring the employment of international airline pilots within the unfair dismissal provisions of the 1996 Act.
The tribunal had made detailed findings. The fact that the decision was difficult was not a basis for remitting the matter to a fresh tribunal to start again, and only if one was driven to do so by some lack of findings should it be contemplated that the further costs of remission should be incurred.
The place where the contract placed international airline pilots did throw light on whether under their contracts they were employed in Great Britain.
The findings of the tribunal led to the conclusion that the Veta pilots were employed in Great Britain because the contract required them to live and work in the way it did.
If the employment tribunal had jurisdiction in relation to the unfair dismissal claims, it would be the appropriate forum to hear the breach of contract claims of the Veta pilots.
LORD JUSTICE MAURICE KAY said that he had come to the same conclusion as Lord Justice Waller for substantially the same reasons.