United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D DALGARNO (Solicitor) Messrs Warner Cranston Solicitors Pickfords Wharf Clink Street London SE1 9DG
For the Respondents	MR T LINDEN (Of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


MR JUSTICE LINDSAY: With some reluctance we dismiss this appeal. We shall at several points in our decision express our unease at the way the case has proceeded. The temptation has been great for us to allow the slate to be wiped clean so that a less imperfect fresh hearing might replace what has so far occurred. However, for all our unease, we have not identified any error of law that would enable us properly to yield to that temptation, as we confess we would have wished to do. We thus have no choice but to dismiss the appeal, which we must now explain.

On the 17th December 1996 there were made available to the parties the Extended Reasons of Mrs E Prevezer, as Chairman sitting alone, for her decision in the Industrial Tribunal matter of Mrs J Bannigan and two others against United Airlines. We shall call that case "the Bannigan Case". Mrs Bannigan and her two fellow applicants were employed as flight attendants by United Airlines. They brought claims alleging breach by the Airline of their maternity rights under Sections 66 to 68 of the Employment Rights Act 1996. Other colleagues of Mrs Bannigan had earlier in another case made similar claims against the Airline but had failed on a preliminary jurisdictional point. A similar jurisdictional point was raised in the Bannigan Case and, in manner we shall need to deal with in some detail, was heard, as mentioned above, by one member only, Mrs Prevezer. Her decision was, oddly, expressed as "unanimous" but its conclusion was clear; she ruled that the Industrial Tribunal had jurisdiction to hear the Applicants' claims. There had thus been two decisions on the same preliminary point completely at odds with one another. The Airline appeals to this Tribunal. We heard the appeal over two days with, unavoidably, a gap between the two. The matter has been well argued on both sides and the argument has ventured into areas of procedure which have an importance beyond the confines of this present appeal. The matters disclosed in the appeal have at a number of points occasioned in us, as we have mentioned, considerable unease for reasons which we shall explain in order that the grounds for such unease may be avoided in other cases.

First, though, we shall set out sufficient facts to make our judgment intelligible. United Airlines, a United States corporation, is the well-known International airline which has its headquarters based in Chicago but operates from airport bases all over the World. One of those is at London Heathrow, from which it operates Trans-Atlantic flights and flights to other parts of the World, including other parts of Europe. Its employment of flight attendants is regulated by the terms of a substantial booklet which is called "The 1987-1996 Flight Attendant Agreement" the terms of which have been agreed between the Airline and the Association of Flight Attendants, a Trade Union of which all the Applicants are members. Persons wishing to be and selected to become flight attendants for the Airline undergo training in Chicago. If the training is successfully undergone the applicants are required to sign a "Pre-hiring Agreement" in which they agree that their terms of employment will be as in the booklet. All the Airline's flight attendants all over the World are employed on the same terms.

On the 11th March 1996 there was heard at London (North) Industrial Tribunal before Mr J.A. Threlfell sitting with two Members the preliminary jurisdictional point in the earlier case to which we have referred. Extended Reasons were given in that case (which, by reference to the name of the first applicant in it, Ms S.J. Bowie, we will call "the Bowie Case") on the 25th March 1996. Evidence had been heard in the Bowie Case from two of the applicants to it and from the Assistant General Counsel of the Airline, its senior U.S. staff representative (Labour Relations), its Manager of Heathrow-based in-flight service and its Heathrow Airline staff representative. There had been no significant dispute of fact between the parties to the Bowie Case, each of whom was professionally represented. The applicants in the Bowie Case were employed under contracts identical to those in the Bannigan Case. The unanimous decision of the three-person Industrial Tribunal in the Bowie Case was that the Tribunal did not have jurisdiction to hear the applicants' complaint because (so far as now material) for the purposes of Section 141 of the Employment Protection (Consolidation) Act 1978 the applicant flight attendants in the Bowie Case ordinarily worked outside Great Britain. In the Bannigan Case it is Section 141's replacement, Section 196 of the Employment Rights Act 1996, that has been chiefly referred to but there has been no suggestion to us that the substance of the statutory provisions has changed. The maternity rights claimed in the Bannigan Case (which correspond to the claims in the Bowie Case) are created under Part VII of the 1996 Act but by Section 196 (3) (d) and (2) the provisions of that part:-

"............ do not apply to employment where under the employee's contract of employment he ordinarily works outside Great Britain".

The emphasis conferred by the words "under the employee's contract of employment" upon the employee's contract is to be noted. The conclusion of the Industrial Tribunal in the Bowie Case was, as we mentioned, that the Airline's flight attendants who were applicants in that case ordinarily worked outside Great Britain. The unsuccessful flight attendants in the Bowie Case lodged appeals to the E.A.T. but even before the Industrial Tribunal hearing in the Bowie Case the Bannigan Case had been launched.

We pause in the chronology to mention the first of the matters that causes us unease in the case. We do not seek to apportion blame between employer and Union because we do not have sufficient material to do so but it is obviously undesirable that either or both should have allowed to arise, or should have failed to have avoided there arising, a situation in which a point of importance affecting many employees should be decided not at one hearing together of one or more test cases but by separate hearings at separate times and on separate evidence. The risk of conflicting decisions is illustrated by the diametrically opposed conclusions of the Bowie Case and the Bannigan Case and time and costs will have been wasted that a more thoughtful approach would have avoided. Nor is it conducive to good industrial relations if working alongside each other and employed by the same employer at the same places on identical terms there can be some who have succeeded on a point of jurisdiction and some who have failed on the very same point and who thus have been denied whatever benefit, if any, their fellows might go on successfully to be awarded. Later the unsuccessful flight attendants in the Bowie Case dropped their Appeal. No reasons appear for that step but it is hard to escape the thought that it was a tactical one taken to avoid any upholding of the Bowie decision by the E.A.T. facilitating the Airline's progress in the Bannigan Case. Responsible employers and Unions can be reasonably expected by the Industrial Tribunal to foresee the need for one or more test cases and for them to be heard together and so far as practical then to procure that such a course should be adopted. Considerations of tactical advantage and disadvantage in individual cases should yield to the wider interest of both Union and employer in the early, economical and homogeneous development of the law and, if they do not, tribunals may have to develop special sanctions in costs to deter those who add to the demerits we have mentioned by wasting valuable Court time.

To revert to the chronology, after the Airline had learned of its success in the Bowie Case it applied to the Industrial Tribunal for a striking-out of the Bannigan Case. The response of the Industrial Tribunal was by a letter of 15th July 1996 to direct that there should be a preliminary hearing of the question of whether, having regard to Section 141 (2) of the Employment Protection (Consolidation) Act 1978 as amended, the Tribunal has jurisdiction to consider the Bannigan complaints. On the 11th September 1996 a standard form of document ("IT4") - "Notice of Hearing of a Preliminary Point" -was sent to the parties specifying the 21st October as the date for its hearing although, in the event, that date was later put off to the 28th November.

Neither the letter of 15th July nor the "IT4" of 11th September mentioned that the parties were to have "an opportunity to submit [inter alia] representations in writing" within Rule 6 (2) of the Rules of Procedure. The sending of a notice of such a kind is, strictly speaking, a pre-condition of a hearing and determination of a jurisdictional or other question under Rule 6 (1) but neither side has relied on this point. Given that each party was then professionally represented the likelihood is that neither could realistically claim not to have known that there was, indeed, an opportunity to make representations in writing should it have chosen to do so. In the circumstances, although we shall revert to the point later, we make nothing of the omission in the IT4. The Notice in Form IT4 indicated the hearing would be limited to consideration of the preliminary point that had earlier been identified and it went on:-

"You are responsible to ensure that all the witnesses you may wish to call can attend at the hearing".

The Bowie hearing, it will be remembered, had been before a three-person Tribunal and had heard oral evidence. This Bannigan Tribunal was plainly expecting also to be able to hear oral evidence but nowhere in the preceding letter or in the IT4 itself was it said that the hearing would or might be not before a three-person Tribunal but before a Chairman sitting alone. The fact that the preliminary issue in the Bannigan Case transpired to be heard by the Chairman alone provoked a careful argument from Mr Dalgarno of Warner Cranston, Solicitors for the Airline, to which argument we now turn.

By Section 4 (1) of the Industrial Tribunals Act 1996, but subject to the later provisions of the section, proceedings before an Industrial Tribunal are required to be heard by the Chairman and two others. The two others are not to be selected at random from those eligible to sit but "in accordance with regulations so made". The regulations are careful to ensure that on a three-person Industrial Tribunal, the Chairman apart, the other two shall be balanced in the sense that, unless the parties otherwise agree - Regulation 7 (b) - one is to come from the list of persons appointed after consultation with employees' representative bodies and the other from the list made after consultation with the employer's representative bodies - see Industrial Tribunal (Constitution etc.) Regulation 1993, Regulations 5 and 7 (2). However, the later provisions of section 4 specify a list of proceedings which are to be heard by the Chairman alone (Section 4 (2) and (3)) unless the Chairman decides, by reference to specified considerations, that they should nonetheless be heard by a three-person Tribunal. The Chairman can thus elect for a three-person Tribunal if there is a likely dispute of fact or if a point of law makes that desirable and may also have regard to the wishes of the parties on the point - Section 4 (5) (a) to (d). It is not said that the preliminary jurisdiction point that arose in the Bannigan Case was such a case that it would have to be heard by a Chairman alone under Section 4 (3) and, even if it had been, a prudent Chairman might in any event have thought it wiser to elect for a three person Tribunal under Section 4 (5). However, in 1993 there was added to the statutory provisions a new one now found at Section 4 (6) which provides as follows:-

"(6) Where (in accordance with the following provisions of this part) the Secretary of State makes Industrial Tribunal procedure regulations, the regulations may provide that in such circumstances as the regulations may specify, any act required or authorised by the regulations to be done by an Industrial Tribunal may be done by the person mentioned in sub-section (1) (a) alone."

That is to say by the Chairman alone. Thus there came to be made Regulation 8 of the 1993 Regulations which introduce the Rules of Procedure in Schedule 1 to those Regulations which by Rule 13 (8)("Miscellaneous Powers") provides (with our italics):-

"(8) Any act required or authorised by these rules to be done by a Tribunal may be done by a Chairman except -

(a) the hearing of an Originating Application under Rule (8);

........................"

Presumably those last few words "under Rule 8" are intended to add something to the intent as it would have been had Rule 13 (8) (a) merely excepted "the hearing of an Originating Application". Looking, then, to Rule 8 one finds (bringing its cross-references up-to-date) that it begins by providing:-

"(1) Any hearing of an Originating Application shall be heard by a Tribunal composed in accordance with [Section 4 (1), (3),(7) of the Act of 1996]"

- see Tsangacos -v- Amalgamated Chemicals Ltd [1997] ICR 154 at 160 f-g EAT. Those references to sub-sections of Section 4 are references to the parts specifying a three-person or one-person Tribunal or a Tribunal consisting only of one of the two Presidents of Industrial Tribunal sitting alone. It is easy enough to see that any Chairman cannot have been intended to be authorised to be able to hear a matter which has been specially directed to be heard by a President of Industrial Tribunals alone. Easy enough, too, to see no need for Regulation 13 (8) to enable a Chairman alone to hear a matter which a Chairman alone can in any event hear under Section 4 (3). Leaving those two cases aside, what, then, is the intended effect of the reference in Rule 13 (8) to the remaining category referred to in Rule 8 (1) namely cases within Section 4 (1) which, subject to the other provisions of Section 4, are to be heard by three-person Tribunal? Is it intended to exclude what are primarily three-person cases from being heard by a Chairman alone? Whatever the intended effect of the final words "under Rule 8" in Rule 13 (8) (a) it cannot be that the exception which is Rule 13 (8) (a) is intended to have the effect that all cases which are within Section 4 (1) are unable in any event to be heard by a Chairman alone under Rule 13 (8) as that would render the reference to Rule 8 quite pointless. If that had been the case the references to Rule 8 would be, as to cases within Section 4 (3) unnecessary, as to those within Section 4 (7) plainly not intended and, if that were right, as to Section 4 (1) of no effect. The reference to Rule 8 must therefore have been intended to have some other effect. The best clue to the intention behind the reference to Rule 8 in Rule 13 (8) (a) is to note firstly that it is not to any part but to the whole of Rule 8 that reference is made and secondly to note the heading to the whole of Rule 8, namely, a heading - with the definite article - "The hearing". That heading takes its place in a logical sequence of headings which take the procedure forward from Rule 6 "Entitlement to bring or contest the proceedings" to Rule 7 "Pre-hearing review" to Rule 8 "The hearing". It is a familiar usage to use the definite article with the word "hearing" to describe the substantive hearing. Interlocutory Injunctions or undertakings, for example, are frequently made or agreed over "the" hearing of a Motion, Petition or Originating Summons or in relation to any legal process other than an action, begun by writ, where the substantive hearing is called "the trial". In such a case a hearing of the motion, for example, merely for directions for evidence would not be understood to be "the" hearing. The possibility that such a usage suggested by the heading is intended is fortified by the distinction which appears in Rule 8 (2) and (6) between "Any hearing of" an originating application and any hearing "in connection with an originating application".

Accordingly, in Tsangacos supra at p. 161 A-C it was held that the reference to Rule 8 imported a distinction between "any hearing of an Originating Application" - Rule 8 (1) - and "any hearing of or in connection with an Originating Application" in Rule 8 (2) and (6).

As to which is the proper description of what took place before Mrs Prevezer, it cannot in our view be said that a hearing of a preliminary point of the kind heard in the Bannigan Case is the hearing, the substantive hearing of the Originating Application under Rule (8), rather it is a preliminary matter the hearing of which by a Tribunal determines the entitlement of the applicant to bring the main proceedings, a step:-

"in advance of the hearing and determination of the proceedings by that or any other industrial tribunal"

- Section 9 (4) of the 1996 Act, with our italics added, and see also Rule 6 (1) of the 1993 Rules which provides:-

"(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion [hear and] determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates."

Again, the use of the definite article in Rule 6 is consistent with "the hearing of an originating application" being the substantive hearing of it. It follows, in our view, that under the combined effect of Section 4 (6) and Rule 13 (8) a Chairman alone may in point of jurisdiction hear a preliminary point, as was held in Tsangacos supra at 162 f, not following Mobbs -v- Nuclear Electrics plc [1996] 1 W.L.R 536.

In Mobbs the E.A.T. paid attention to Rule 6 (2) namely:-

"(2) A Tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the Tribunal."

Surely, the E.A.T. considered in Mobbs, if it had been intended that there should be an opportunity to adduce oral evidence on the hearing of a preliminary question under Rule 6 (1) then Rule 6 (2) would have required notice to be given of that, to correspond with its express provisions as to representations in writing and oral arguments. By inference, therefore, held Mobbs, there was not to be oral evidence on a Rule 6 (1) preliminary question. Then, by a further step not easy to discern, Mobbs held that, such being so, any hearing that did include oral evidence was the hearing of an originating application within Rule 8 and hence under Rule 13 (8) (a) could not be heard by a Chairman alone. The mistake in Mobbs may have been to identify any hearing which includes oral evidence, even if, under Rule 6 taking place "at any time before the hearing of an originating application" as being "the" hearing, the substantive hearing, under Rule 8.

Mr Dalgarno has sought to persuade us that Tsangacos supra, whilst correct in identifying flaws in Mobbs, is itself in error. Despite that argument we hold that we are entitled to prefer Tsangacos to Mobbs if only because of the combination firstly that Tsangacos is a later case which considered and rejected Mobbs and secondly because we are far from convinced that Tsangacos was wrong to do so - Colchester Estates (Cardiff) -v- Carlton Industries plc [1986] 1 CH 80. We add that Mr Dalgarno's argument constrains him to say (as his skeleton puts it):

"The fact that a rule 6 hearing is expressly stated to take place "before the hearing of an Originating Application" does not mean that it is not also a "hearing of an Originating Application under rule 8".

We find that the distinctions we have mentioned between the hearing and a hearing of an Originating Application and between the hearing of and a hearing in connection with an Originating Application, distinctions such as that upon which Tsangacos relies, whilst finer than one would hope to encounter in this area of the law, are, for all that, there to be noticed. Moreover, any argument against Tsangacos which involves saying that a hearing at one or the same time can be "in advance of" or "before" the hearing of an Originating Application (Section 9 (4) and Rule 6 (1)) and yet also be "the hearing of an Originating Application under Rule 8" seems to us to have weaknesses that need not be further explained.

We were concerned at one point in the argument that the reference in Section 4 (6) such that the Regulations may provide for a Chairman alone:-

"In such circumstances as the regulations may specify"

requires that the regulation should specify particular circumstances, for example such as might arise if what had been intended to a three-man Tribunal was at the last minute reduced through illness to only two and where it was then preferred to have a Chairman alone rather than what would then otherwise have been an unbalanced Tribunal of only two. However, Mr Linden for the Airline has satisfied us that the reference to such circumstances as the Regulations may specify makes the specification of particular circumstances discretionary rather than mandatory and in the event neither side before us argues that the Regulation 13 (8) is ultra vires.

Whilst we therefore hold that in point of jurisdiction the preliminary question was such that it could be heard by a Chairman alone, the second ground for the unease which we have earlier referred to in the case stems from the way that in the exercise of a discretion there here came to be a one-person Tribunal. There is something a little absurd about matters which are basically fit for hearing by a Chairman alone (the specified cases within Section 4 (3) of the 1996 Act) being heard by a Tribunal of three if, say, having regard to likely disputes of fact or an important point of law or the wishes of the parties the Chairman so decides, yet a matter which is basically proper for a three-person Tribunal under Section 4 (1) should end up, as in the Bannigan case, before a Chairman alone without any (or, at any rate, any visible) weighing-up of the likelihood of disputes of fact, the importance of the points of law likely to arise or any consultation to find the wishes of the parties. We are told nothing of how it came to be decided that the preliminary question in Bannigan, unlike the identical one in the Bowie Case, should be heard by the Chairman alone. The Industrial Tribunal knew of the earlier decision of a three-person Tribunal in the Bowie Case and knew that it had involved oral evidence on a notoriously difficult mixed question of law and fact, namely a determination of where employees ordinarily worked. Moreover, the Industrial Tribunal knew that the employees were not accepting but challenging that decision of the three-person Tribunal. How the discretion came to be exercised in favour of a Chairman alone is not clear. However, there was no appeal against that exercise of a discretion nor any application for a review of the decision before the hearing, a hardly surprising absence as the IT4 did not indicate the hearing would be before a Chairman alone. There was no appeal against the decision nor any application for a review as the hearing of the preliminary question in the Bannigan Case began, perhaps because it was not known until the last minute that a Chairman alone was to hear the case. However, no adjournment was then sought nor was any objection taken to the matter being heard by a Chairman alone. In the circumstances we hold that the Airline cannot make anything of the fact that in the exercise of a discretion the case was heard by only a Chairman.

However we do urge some caution in the exercise of a discretion to have hearings before only a Chairman outside the cases specified as fit for one person under Section 4 (3); Regulation 13 (8) can hardly have been intended to be so widely used as to lead to any undermining of the statutory provision of Section 4 that there should in general be balanced three-member Tribunals. It would be quite inappropriate if a plain objective of primary legislation came, in practice, to be undone by the secondary legislation later made under it. We reflect that the success of the Industrial Tribunals is attributed by many in the field to the careful balance in three-person Tribunals which the Regulations have hitherto ensured in cases of significance. Our unease is this. If, in the exercise of the discretion, Chairmen alone are increasingly chosen to deal with cases notwithstanding that disputes of fact are likely to arise in them on which the experience of the lay members would be valuable or that difficult mixed points of fact and law will need to be decided and if that is, furthermore, done without consultation with, or even notice to, the parties, there will be a real danger that the confidence in the Industrial Tribunals carefully built-up over the years will be sacrificed on the worthy but less sovereign altars of economy and speed. Tempting as it should always be to save money and time, the decision to proceed with a Chairman alone on a preliminary question should represent not an automatic response to there being a preliminary question but a careful weighing-up of what is truly appropriate in the particular case - see also per Lord Johnston in Fleming -v- Secretary of State EAT/341/96, unreported 15.10.96 E.A.T. at p. 11.

At the very least we would wish to bring it about that where it is decided that a hearing should be before a Chairman alone care should be taken that the parties are told of that intention in good time before the hearing. The present printed form IT4 is inadequate as it stands. Thought should be given not only to adding to the Form, as Rule 6 (2) requires, mention of an opportunity to submit representations in writing but also to add appropriate mention of the ability to adduce oral evidence if that is intended and of the intention, if such there is, for the hearing to be before a Chairman alone.

Turning to the law, material to this appeal, both sides have referred us to Wilson -v- Maynard Shipbuilding Consultants AB [1978] ICR 376 C.A., Todd -v- British Midland Airways [1978] ICR 959 C.A., Janata Bank -v- Ahmed [1981] IRLR 459 C.A. and Sonali Bank -v- Rahman [1989] ICR 314 EAT. All were concerned with the question of whether or not "under the employee's contract of employment he ordinarily works outside Great Britain" under the forebears of Section 196 (2) of the 1996 Act. Doing the best we can to provide a synthesis of these authorities we observe as follows:-

(i) For the purposes of this legislation no-one can, in respect of the self-same period, be ordinarily working both within and without Great Britain; the employment has to be in one or the other category - Wilson supra p. 384A.

(ii) Generally, which it is (subject to the limited exceptions mentioned in (iv) and (ix) below) is a question to be settled at and to be ascertained by reference to the time of the making of the contract - Wilson supra at 385C. Put another way, true subsequent variations in contract apart, the right not to be unfairly dismissed exists either throughout the employment under the contract or not at all - Janata supra at paragraph 24 and paragraph 27, adopting Maulik -v- Air India (1974) ICR 528.

(iii) The Court begins the quest by looking at the terms of the contract, express or implied, to see whether its terms of themselves require the employee ordinarily to work in some identifiable place or places - Wilson at p. 385B; 387 a-b.

(iv) As to the meaning of "ordinarily works" this has been paraphrased as meaning "almost exclusively works" - Todd supra at p. 967 a-c. However, it is dangerous to paraphrase; the better course is to adhere to the words of the Act - see for example Janata supra at para. 35.

(v) Later variation of contract apart, there is a limited exception permitting regard to be had to material later than the time of the making of the contract. The exception is this: if it is the case that there must have been a relevant term of the contract but its meaning and effect cannot adequately otherwise be determined then in such a case it is permissible to look at what the parties did and said later than the point of time at which they made the contract - Wilson supra at p. 385 f. That apart, the strict approach is that what was actually done under and after the contract is, at any rate at this stage of the enquiry, irrelevant - Wilson supra at p. 384 h.

(vi) The question of whether the contract of itself indicates where the employee is required ordinarily to work is not to be examined by reference only to the situation as it was at the point of time at which he was dismissed or to the situation at or over any other lesser period within the period of employment but rather by reference to the contractual provisions looking over the whole span of employment as contemplated within its terms - a consideration which may be of no great weight where the employment had no fixed or minimum term or contemplation of a change of place within its span but which can be a consideration of great importance where the dismissal occurs before the expiry of some fixed or minimum duration - see the example given in Janata supra at para. 39.

(vii) Supposing, as will frequently be the position, at least in cases that get as far as an appeal, that the terms of the contract themselves provide no direct answer to where the employee is required ordinarily to work (examples of which are where the contract does no more than provide that the employee shall work where the employer has work for him or where the employer, in his discretion, shall require him to work) then the examination moves on (but still regarding only the terms of the contract save in the exceptional case referred to in (v) above) to see where the employee's base was to be, again looking over the whole span of the employment which the contract contemplates - Wilson supra at p. 387 f-g, where examples are given of matters which may be provided for in the contract and point to one base or another, such as a defined headquarters, the description of travels beginning or ending in relation to employment, the currency of payment, provision as to the payment of National Insurance Contributions and so on - see also Todd supra at p. 964 g-h.

(viii) Determination of any employee's base under the provisions of the contract at such a stage and in such a way is not to be taken as of itself necessarily conclusive but it is a factor to be borne in mind with others and in the absence of special factors is likely to provide the ordinary locus of the employee's work where the earlier stages of enquiry have not - Wilson supra p. 387 g; Todd p. 966 g-h, 967 g-h; Janata para. 35, para. 47 and see also Iran National Airlines Corpn. -v- Bond unreported EAT/499/79 at p. 9F of the transcript.

(ix) If, even by this stage, no answer has emerged then, bearing in mind that the legislation requires that an answer has to be found, the Courts, for want of other assistance, have to be prepared to look beyond the terms of the contract. The Courts will then look at what has actually happened by way of performance of the contract of employment, even in cases outside the exceptional case referred to in (v) above - Janata supra para. 39; Todd supra at p. 964 g-h - to establish "base" which, if so found at this stage, will presumably have the same consequences as it would have had had it been found at stage (vii) namely that whilst not of itself necessarily conclusive, it is likely, in the absence of special factors, to provide the ordinary locus that is being sought.

If that represents a correct summary of the law then we must turn to seeing whether Mrs Prevezer departed from it so significantly as to have erred in law.

The first notable feature of the hearing before Mrs Prevezer was that the Airline called no evidence but simply referred to and relied upon the facts as found in the Bowie Case. It is not for us to say whether that was a material tactical error on the Airline's part (the Airline was not then represented by Mr Dalgarno) but it had the unfortunate consequence that Mrs Prevezer heard what one might call "live" evidence directly from Mrs Bannigan and evidence by way of written statements from Mrs Petinaud (a fellow-applicant of Mrs Bannigan) and from a Mr Creighton, a shop-steward of the Applicants' Union but heard nothing from the Airline that was evidence properly-so-called. This is yet another cause of unease on our part; it is no criticism whatsoever of Mrs Prevezer, who had to decide the case on the material duly presented to her, but we are far from convinced that there was an adequate presentation of fact. Questions such as, for example, how far, if at all, the Applicants had estopped themselves from asserting that they ordinarily worked within Great Britain by their acceptance of maternity benefits from the Airline payable under United States law were left unexplored. Our dissatisfaction at one or more test cases not having been arranged to be heard together is compounded when we find that there have now been two separate hearings on the same point without comprehensive and reliable guidance emerging such as could be used in other cases of flight-attendants within the Airline. The Bowie Case is unreliable as the later Bannigan Case is diametrically opposed to it; the Bannigan Case is unreliable as the presentation of fact to the Tribunal was one-sided and very likely incomplete. The waste in time and costs is both obvious and lamentable.

In her analysis Mrs Prevezer, correctly in our view, looks first at the contract (corresponding to our stage (iii) above) and concludes, again correctly, that the terms of the booklet put rostering of the Applicants at the discretion of the Airline. She says:-

"These applicants could be directed to work anywhere in the World or in Great Britain depending on the circumstances ....."

She saw it, in other words, as a case within the first part of our stage (vii) where the examination was to move on to where the employees' base was. The quotation from her decision last given continues:-

"....... and therefore the place where the applicants were based has to be taken into consideration".

As to that, it may be said that she skipped over the latter part of our stage (vii) (the determination of "base" by reference only to contractual provisions) but that criticism would only be significant if there had been contractual provisions which, had they been examined into at that stage, might have pointed her away from her later conclusion that the Applicants were based in Great Britain. Mr Dalgarno and Mr Linden have both taken us to parts of the booklet; there are definitions of "domicile", of the duties of flight-attendants consisting of en route or ground cabin services, of "home domicile", of the term "on duty" (duty begins with the employee reporting to a place designated by the Airline) and to other provisions but neither separately nor together do they seem to us to be, of themselves and as terms of contract independent of the manner of its performance, at all indicative of an employee's "base" away from Great Britain. We are not even sure that Mrs Prevezer, whilst not specifically mentioning such as a stage of her reasoning, had indeed overlooked the latter part of our stage (vii). The "Pre-hire Agreement" which was put before the Industrial Tribunal begins with a provision that the Airline:-

"............ after completion of training, hereby employs the undersigned as a flight-attendant initially at the London Heathrow domicile ........."

and it was the word "domicile" that was given the contractual meaning of a "geographical area designated by the company where flight-attendants are based" to which Mrs Prevezer had in terms referred in her decision.

But, even if Mrs Prevezer had skipped the latter part of our stage (vii), then we do not see that as being of any consequence because, even if she had not, she would, if our analysis is correct, have been able then to look, under our stage (ix), beyond the terms of the contract to the manner of its performance to find where the Applicants were based. As to that, she found that the Applicants were all British citizens, were recruited in Great Britain, and were not able, for want of "Green Cards", to work in the United States. The Applicants commenced and ceased their duties at Heathrow. Their shifts ended in Great Britain and they then spent time at their respective residences which were in each case in Great Britain. Heathrow was held by Mrs Prevezer, using the language to which we have already referred and which was to be found in the booklet, to be the "geographical area designated by the company where flight-attendants are based". Their salaries, although calculated in Dollars, were paid in Sterling and United Kingdom Income Tax and National Insurance Contributions were deducted therefrom.

Mr Dalgarno points to the apparent failure of Mrs Prevezer to emphasise that the flights in which the attendants served were largely (even, in terms of flying time, to an extent as great as 90%) outside the United Kingdom but that, whilst admitted by Mrs Bowie in the Bowie Case, was not even true of all the applicants in the Bowie Case and was not, so far as we can tell, proved in the Bannigan Case. We have not been supplied with the Chairman's Notes of Evidence; neither side had requested them. We therefore cannot be entirely sure what the evidence given to Mrs Prevezer was where it is of some material to which she does not specifically refer. Mr Dalgarno says further that it should have been borne in mind that the Airline was an overseas, a U.S. corporation, flying United States registered aircraft. However, Mrs Prevezer had referred to the Airline being based in Chicago so she cannot be assumed to have overlooked such matters. Mr Dalgarno says that under the contracts the attendants were, within broad limits, largely able to choose which flights they took and which duties they should perform. However, as special factors (even assuming that the evidence supported them) such considerations do little else than point out that the attendants chose duties beginning or ending at Heathrow. He says the Airline makes no U.K. domestic flights and that its flights invariably begin or end in the United States but that, of itself, does not seem to us to indicate that some of its employees cannot be based outside the United States or cannot be based within Great Britain. Mr Linden accepts that special factors appear not to have been addressed by Mrs Prevezer but argues that that is not a material shortcoming unless the Airline can demonstrate that there were such factors proved in evidence that were then overlooked. As to that we are not satisfied; the case may well have appeared differently had the Airline chosen to give evidence but as it is we find no error of law in Mrs Prevezer's conclusion that:-

"The base from which the applicants all worked was in Great Britain at Heathrow".

Further, we hold that on the facts found by her she was able without error to move on to her conclusion:-

"That the applicants were ordinarily working under their contract of employment in Great Britain".

The fact that she went on, irrelevantly as we would see it, to find her decision re-inforced by the fact that a similar conclusion had been accepted by the Airline in relation to another employee under a different contract at a different time does not indicate an error in her principal holding.

Accordingly, although we have expressed above our unease relating to several steps in the course the Bannigan Case has taken and although, by reason of its being in direct conflict with the conclusion in the Bowie Case and as depending on a one-sided presentation of fact, we do not see it as providing a reliable guide should there arise cases of other employees on the same contract, we must end, as we began; we have found no grounds on which it would in our view be proper to allow the appeal. There is, in our view, no material error of law. Accordingly we must dismiss the appeal.