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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hunt v United Airlines Inc [2008] UKEAT 0575_07_0304 (3 April 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0575_07_0304.html Cite as: [2008] UKEAT 0575_07_0304, [2008] ICR 934, [2008] UKEAT 575_7_304

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APPEARANCES

 

For the Appellant	Mr J WEST (Solicitor) Messrs Pearce West Solicitors 30 Westgate Galleries Westgate Centre Oxford OX1 1NZ
For the Respondent	MISS J McCAFFERTY (of Counsel) Instructed by: Messrs. Osborne Clarke Solicitors One London Wall London EC2Y 5EB


 


SUMMARY

JURISDICTIONAL POINTS: Working outside the jurisdiction

The Claimant was employed by a US airline and based in Paris. She was to be transferred to the London base; but before she did so she went off work through ill-health and never moved to or worked from London thereafter. Her ill health process was handled in the USA and ended in dismissal. Did the ET have jurisdiction to hear her unfair dismissal claim? The ET said no.

Held, applying Lawson v Serco and Williams v University of Nottingham, that the Tribunal had rightly considered what the factual position was at the date of dismissal and had reached the correct conclusion. To apply a "what if" test, as contended for by the Claimant, would be inconsistent with the Lawson v Serco principles, which are summarised at para 25 of this judgment.


 


HIS HONOUR JUDGE BURKE QC

Introduction

1. This appeal raises an interesting and difficult question of law. That question is - where a peripatetic employee is to be transferred from overseas to work at a base in Gt. Britain, but becomes ill before the transfer takes effect and is dismissed whilst still absent from work through illness, does the Employment Tribunal have jurisdiction to hear a claim for unfair dismissal?
2. The Appellant, Ms Gloria Hunt, presented a claim to the Employment Tribunal that she had been unfairly dismissed by her employers, United Airlines Inc ("United"). She also claimed that United were in breach of her contract of employment by failing to provide her with sufficient notice of dismissal. At a pre-hearing review held at the Reading Employment Tribunal, the employment judge, Mr R Byrne, concluded in a judgment sent to the parties with reasons on 24 September 2007, following the decision of the House of Lords in Lawson v Serco Ltd [2006] IRLR 289 ("Lawson"), that the Tribunal had no jurisdiction to hear either claim and therefore dismissed both. By her appeal Ms Hunt asks us to conclude that the employment judge was wrong in law to dismiss her unfair dismissal claim and to decide that the Tribunal did have jurisdiction to hear it. There is no appeal in respect of her breach of contract claim.

The Facts

3. The Tribunal heard evidence from Ms Hunt and from Mr Sanderson, the manager of Onboard Services for flight attendants at United's base at London Heathrow Airport. Detailed findings of fact were made by the Tribunal. I do not need to set them all out. I extract the factual history from the Tribunal's findings and the documents which were before the Tribunal.
4. Ms Hunt is a USA national. She joined Pan American World Airways in 1979. After training as a flight attendant she was sent to work from that airline's Heathrow base but, in 1980, transferred to their New York base. In 1989 she transferred back to Heathrow.
5. In 1991 that airline's Heathrow base and routes were sold to United; and Ms Hunt became employed by United, with continuity of service (as appears from the agreed dates of employment in her claim form and United's response). She was given a terms and conditions document which provided:

"I will become a Flight Attendant assigned to the London Heathrow domicile providing that I have complied with the United Kingdom immigration rules applicable to United Airlines Flight Attendants assigned to Heathrow."

The word "domicile" was defined in a collective agreement between United and the Association of Flight Attendants as "a geographical area designated by the company where flight attendants are based".

6. Ms Hunt continued to be thus based at Heathrow until 2000, when, at her own request, she was transferred to United's Paris base at Charles de Gaulle Airport. She made that request because she wished to live in France. She has lived in France ever since. In France she received her salary in US dollars, paid into a US bank account. Deductions were made for US taxes, for her pension fund contributions and for French social taxes.
7. The Tribunal found, at paragraphs 7 and 8, that in February 2005 Ms Hunt was notified by United that she would be transferred from the Paris domicile to the London domicile due to the expiry of her working visa in France. On 24 February 2005 United wrote to the immigration authorities at Heathrow in these terms:

"The above named is a flight attendant with United Airlines and has been transferred to our base in the United Kingdom under ALE visa conditions, effective 1^st April 2005…"

On 1 April 2005 Ms Hunt signed a document which was headed "Notice to United Airlines Flight Attendants transferring to a Non-US base". It read as follows:

"Flight attendants transferring to a non-US base will continue to be represented by the Association of Flight Attendants ("AFA") and their pay, work and rules and benefits will be governed by the AFA collective bargaining agreement.

Accordingly, transferring flight attendants' employment will be governed exclusively by applicable United States law, including the Railway Labor Act, and jurisdiction over any and all grievances, charges, claims, disputes and lawsuits regarding or in any way related to their employment, shall be vested exclusively in the AFA United grievance procedure and board of adjustment, or in courts of competent jurisdiction of the United States and the State of Illinois where such is permitted by the Railway Labor Act and the AFA agreement. A flight attendant's acceptance of a transfer to a non-US base shall be deemed to constitute his/her agreement with the above principles.

Transfers to a non-US base will be subject to, and conditioned on satisfaction of, applicable immigration and visa requirements of the host country, and of countries to which you can be assigned to fly. Further details on this and related subjects will be provided in separate documentation.

My signature acknowledges that I have reviewed and understand the terms outlined above, applicable to flight attendants transferring to the LHR base and that I have been given a copy of this notice."

8. Although the Tribunal did not refer to this, it is common ground that that transfer was planned with Ms Hunt's agreement.
9. The Tribunal found that, at that time, there were 567 active flight attendants at the Heathrow base. Mr Sanderson at Heathrow was responsible for ensuring that flight crews had information as to safety and operational matters and for managing any disciplinary process for flight attendants. Long term sickness issues were dealt with by United in Chicago, although telephone calls from flight attendants who said that they were sick were outsourced to what is presumably a call centre in the Philippines.
10. The duties of a flight attendant working from Heathrow involve their attending a pre-flight briefing for 20 minutes; they would then go on board their aircraft one hour before departure; on return to Heathrow their duties were finished once the passengers had left the aircraft.
11. All flight schedules for flight attendants, wherever based, were worked out in Chicago and accessed by flight attendants remotely by computer.
12. Ms Hunt was, as a result of illness, absent from work from 10 March 2005. The decision to move her to a new domicile i.e. "the base at Heathrow" never became effective because she never attended work after 9 March 2005. She did not report for work at Heathrow on any occasion and had not, prior to her dismissal, attended Heathrow for work since 2000.
13. When Ms Hunt's ill health became persistent (or when she claimed that it was – there was obviously an issue as to that between Ms Hunt and United which has not been resolved) United embarked upon a lengthy course of management of her ill-health, which was carried out from Chicago under an elaborate medical arbitration process in accordance with a US collective agreement, US law and the terms of the document of 1 April 2005. On 6 September 2005 United wrote to Ms Hunt as follows:

"Effective 09/01/05, the Flight Attendant Service Center (FASC) assumed all administrative and procedural functions for those flight attendants who are currently on Non-Occupational Medical Leave of Absence. This means that for the duration of your leave of absence, you will report to the FASC as opposed to your home domicile. Upon return from Non-Occupational Leave of Absence, you will automatically be returned to your home domicile for all purposes."

Ms Hunt accepted what was set out in that letter. The Tribunal found, at paragraph 17 of its judgment, that Ms Hunt

"… fully engaged in the medical arbitration process which was conducted in accordance with the US collective agreement and US law and in accordance with the agreement she had signed on 1 April 2005 (21). Ms Hunt accepted that Vicki Hammer had handled her medical arbitration and that the entire process had been managed from the United States. She accepted that the arbitration was in accordance with the FA Collective Agreement between United and the US. Save for the one telephone call made by the Claimant to Mr Sanderson some time after September 2005 (see paragraph 14 above) no one at Heathrow was in any way involved in the process."

The telephone call there referred to was the subject of findings at paragraph 14; in brief Ms Hunt attempted to contact Mr Sanderson on his mobile telephone to request that he intervene in the dispute between her and United about her medical assessment; he was on holiday; she left a message; he decided not to become involved and did not return her call.

14. Eventually the arbitration process foundered, for reasons into which it is not necessary to go; and Ms Hunt was invited to a disciplinary meeting pursuant to the terms of the US collective agreement on 6 February 2007. That meeting was to take place at Heathrow because it made sense for the two disciplinary personnel to travel to the UK to deal with a large number of United employees at the same time rather than requiring a large number of employees to travel to Chicago. In the event Ms Hunt did not attend the meeting and was dismissed by letter a week later.
15. My attention was drawn on behalf of Ms Hunt to a number of other documents passing between Ms Hunt and United's Administrative base in Chicago and internal documents which referred to Ms Hunt's designation to Heathrow, describing her as "LHRSW" or "LHR based" or "LHR domiciled". Those documents were not referred to expressly in the Tribunal's judgment but were all before the Tribunal. I should add that, although Ms Hunt continued to live in Paris throughout the period of her ill health and until her dismissal and did not work in London or anywhere else, it was not suggested to the Tribunal that her base was Paris at the date of her dismissal. That was so because, in early 2006, United closed their Paris base and ceased to fly from Paris. There was no dispute that, if Ms Hunt had not been off work, as she claimed through sickness, her transfer to London would have been effective. She would not have stayed in Paris.

The Tribunal's conclusions

16. The Tribunal expressed its conclusions in these terms at paragraphs 29 and 30 of its judgment:

"29. It is clear to me from careful consideration of Lawson v Serco that I have to establish on the facts of this case where Ms Hunt's base was at the time of dismissal in order to determine whether or not this Tribunal has jurisdiction to deal with those claims. I have to consider the conduct of the parties and the way that they have been operating the contract at the time of dismissal.

30. It is clear from the findings of fact above that at no point had the Claimant begun to perform the contract at Heathrow following her transfer. She had not physically attended at Heathrow to report for work. That was for good reason namely her ill health. However it seems to me that I cannot overlook that fundamental fact. In reality she was not physically based at or working from Heathrow. Further by her conduct in, quite understandably, seeking to resolve the ill health issues, quite clearly did so applying the provisions of US terms of employment governed by a collective bargaining agreement made between her US trade union, and United. That process was clearly and directly managed from Chicago from September 2005 as was her dismissal. Having found as a fact that she never worked at the London domicile after 2000 I must inevitably dismiss this claim. She was not in fact based at or working at Heathrow at the time she was dismissed. She was not in employment in Great Britain at the time of her dismissal. Accordingly applying Lawson v Serco the Tribunal has no jurisdiction to hear that claim."

The Submissions

17. Ms Hunt has been represented before me by Mr West, her solicitor, who appeared before the Tribunal. United have been represented by Miss McCafferty of Counsel, also as before the Tribunal. I am grateful to both for their clear and helpful arguments.
18. The parties' submissions can, without disrespect I hope, be briefly summarised.
19. Mr West puts forward two grounds of appeal. The first has been described as "the reasons ground"; it is that the Tribunal, having in paragraph 29 correctly set to itself the task of deciding where Ms Hunt's base was at the time of the dismissal, then failed in paragraph 30 to make any determination as to where that base was. There were, Mr West submits, two possibilities – Heathrow and the USA; and the Tribunal had to consider those possibilities and decide which of them was Ms Hunt's base rather than restricting itself to a finding that she was not based in London. She had to be based somewhere; if the Tribunal, instead of considering only whether London was her base, had considered where her base was, on the facts they could only have chosen London. He further submitted that, contrary to Miss McCafferty's arguments, Chicago was never put forward before the Tribunal as Ms Hunt's base (as opposed to the USA more generally).
20. Mr West's second submission is that the Tribunal failed correctly to apply the principles as to jurisdiction in the Tribunal to hear unfair dismissal claims set out by the House of Lords in Lawson. The correct approach in a case of long term sickness absence, he submitted, has to be to ask where would the employee have been ordinarily working or based if she had not been absent through sickness; and there could only be one answer to that question, namely London. The Tribunal had therefore erred in focussing solely on whether Ms Hunt had ordinarily worked in London (since her transfer to Paris in 2000). An employee might not be working at the time of her dismissal for a number of reasons; she might have been on suspension or garden leave, on maternity leave, on a sabbatical or absent through sickness; because an employee had ceased to work at the time of her dismissal for any one of those reasons, she had not ceased to have a base; and that base could only be ascertained by asking the "but for" or "what if" question. Thus the Tribunal was bound to adopt a wider test than simply "where was Ms Hunt working at the time of her dismissal?" and to ask where she would have been working but for the cause of her absence.
21. Mr West submits that that approach alone was consistent with the requirement to consider where the employee ordinarily worked set out in Lawson.
22. Miss McCafferty submits, in relation to the first ground, that the reasons given by the Tribunal are entirely sufficient to comply with the well-known principles established in cases such as English v Emery Reimbold & Strick [2003] IRLR 710 and Meek v City of Birmingham District Council [1987] IRLR 250 (CA). The choice, she submits, before the Tribunal, was London or Chicago; therefore the Tribunal's decision that Ms Hunt was not based at Heathrow inevitably included a decision that Ms Hunt was based in Chicago. It was not necessary for the Tribunal to say more.
23. As to the second ground of appeal, she submits that the "but for" or "as if" approach proposed on behalf of Ms Hunt is erroneous. Lawson required the Tribunal to look not at the terms of the contract of employment but at how the contract of employment was being operated at the time of the dismissal; and, on the facts as found, Ms Hunt had at the relevant time no involvement with United in London; she was not working at all; she was absent from work. The only active content of her employment relationship was her long term sickness; and she had agreed that that should be, as it was being, managed wholly in Chicago to which base she had been told to report throughout her period of absence.

Lawson v Serco

24. Counsel agree that, in order to answer the question which I posed at the beginning of this judgment, I must start with the decision of the House of Lords in Lawson. In the years after s196(3) of the Employment Relations Act 1996, which provided that jurisdiction in the Employment Tribunal to hear an unfair dismissal claim was excluded in cases in which the employee ordinarily worked outside Great Britain, had been repealed by the Employment Relations Act 1999 extensive forensic and academic controversy reigned about the territorial scope of the Tribunal's unfair dismissal jurisdiction. Eventually, after a series of decisions in the EAT and in the Court of Appeal, three cases, each on different facts, reached the House of Lords. In the first case, Lawson itself, the claimant was a UK citizen who at the time of his dismissal worked as a security supervisor for a UK company on Ascension Island in the South Atlantic, where his employers had a contract to service the RAF base. In the second, Botham v the Ministry of Defence, the claimant was a civil employee of the MOD working at various MOD establishments in Germany but treated for various purposes as a UK resident. In the third, Crofts v Veta Ltd, the employee was a pilot employed by a subsidiary company of and to fly aircraft for Cathay Pacific Airways Ltd. Both companies were Hong Kong companies; but the employee had been assigned permanently to Cathay's Heathrow base and lived in and worked from the UK.
25. Lord Hoffmann, with whom the remainder of their Lordships agreed, gave important and helpful guidance as to how the jurisdictional problem should be approached. With considerable timidity but in order to achieve conciseness I have felt it preferable, rather than quoting passages from Lord Hoffmann's speech, to attempt to summarise what he said, so far as relevant for present purposes, in six propositions as follows:

1. Section 196(3) of the Employment Rights Act 1996 having been repealed something must be found to replace it. There is no one rule or verbal formula; the answer is to be found in principles of statutory construction; see paragraphs 15 and 23.

2. Whether s94(1), providing the right to claim for unfair dismissal in the United Kingdom, applies or does not apply to a particular employment relationship is a question of law, although a question involving judgment in the application of the law to the facts; but the decision of the primary fact finder is entitled to considerable respect. See paragraphs 24 and 34.

3. Because in modern times the courts are more concerned with how a contract of employment is operated in fact than with its original terms, that question is to be judged as at the date of dismissal and not at the date when the contract of employment was made; Paragraphs 27 and 29.

4. In a standard case the application of s94(1) should depend upon, whether, at that time, the employee was working in Great Britain; Paragraphs 25 – 27.

5. In the case of peripatetic employees, other than mariners for whom there is specific statutory provision, the most helpful test is – where was the employee based at the relevant time? Paragraphs 29 and 30.

6. Expatriate employees i.e. employees who both work and are based abroad will not normally fall within the territorial scope of s94(1); but they might fall within that scope if they were posted abroad by a British employer for the purposes of a business carried on in Great Britain or worked in what amounted to a extra-territorial British enclave in a foreign country.

26. On the basis of those propositions, Mr Lawson and Mr Botham were to be treated as expatriate employees who fell within the territorial scope of s94(1); and Mr Crofts was, as a peripatetic employee, to be similarly treated.

Williams v University of Nottingham

27. It is, unsurprisingly, evident that the question which arises in the present case was not expressly considered by their Lordships in Lawson. However, Miss McCafferty submits that a similar question arose in Williams v University of Nottingham [2007] IRLR 660, a decision of the Employment Appeal Tribunal presided over by Wilkie J which was not cited to the Tribunal in the present case because it had not yet been reported.
28. In Williams the employee was employed by the University to a post at the University of Nottingham in Malaysia, a joint venture operated in Malaysia by a Malaysian company in which the University had a minority share holding. The employee was appointed in the UK in September 2003 and was immediately seconded to Malaysia. He worked wholly there and never worked in the UK. In September 2005 differences between the employee and colleagues in Malaysia arose; the University terminated his secondment to Malaysia and required him to return to Nottingham; but that return never happened. The employee raised a number of grievances and was permitted by the University to stay in Malaysia while the grievance process was pursued. Before it ended and without ever working in Nottingham and while still resident in Malaysia, the employee resigned and made a claim to the Employment Tribunal that he had been unfairly constructively dismissed and had been subjected to disability discrimination. The Employment Tribunal decided that it had no jurisdiction to entertain either claim.
29. The EAT dismissed the employee's appeal, concluding, so far as disability discrimination was concerned, that the approach required of a Tribunal was very similar to that which applied to unfair dismissal. On the wider submission that the Tribunal had erred in not finding that the employee worked for the purposes of a business carried on in Great Britain, the EAT concluded, following the second of the six propositions which I have distilled from Lawson, that the question was one of law but one in which considerable respect should be given to the views of the Tribunal, that the Tribunal had concluded that the employee was working for a business which was being conducted in Malaysia and that the termination of his secondment did not alter that position. At paragraph 22 the EAT said:

"The second ground of appeal is more far-reaching. It is that the employment tribunal misconstrued the factual situation. It failed to recognise the impact of the fact that, by the date of his resignation, the appellant's secondment to Malaysia had terminated and that his contract of employment required him to work in the United Kingdom. On that basis, it is said, the employment tribunal should have concluded that, both in respect of unfair dismissal and in respect of disability discrimination, the appellant should be treated as if he were working in the UK or had employment at an establishment in Great Britain so as to confer jurisdiction on the employment tribunal without consideration of provisions relating to those who did not work in the UK. In our judgment that ground of appeal is misconceived. The employment tribunal made it clear in paragraph 29 of its decision that, had the appellant returned to work in Nottingham in November 2005 as he was told to do, his situation may have been different. But he did not and, furthermore, the respondent accepted that position by agreeing that he should remain in Malaysia until such time as his invocation of the grievance procedure had run its course. At no time was the appellant able to say that he had ever worked for the respondent in the UK. To rely on a contractual requirement for him to work in the UK, even ignoring the fact that the respondent had waived that requirement for the time being, would be to approach the matter on the basis of contractual entitlement which Lord Hoffmann made abundantly clear was inappropriate in respect of unfair dismissal and which is wholly inconsistent with s.68(2A)(b) of the DDA which focus on where work is performed rather than where contractually it could be required to be performed. Furthermore, this does not appear to have been an argument which was raised before the employment tribunal, as the employment tribunal recorded, at paragraph 21, that the parties had agreed that the issue in the case was the proper construction of s.68(2A)(b), a position inconsistent with the argument now being put forward."

30. Mr West submitted that the facts in Williams were distinct from those of the present case because (a) Ms Hunt had for some time worked for United in Great Britain whereas Mr Williams never had worked for the university in Great Britain and (b) because the university had agreed with Mr Williams that, during the grievance process, he could stay in Malaysia whereas in Ms Hunt's case, after she had gone off sick, she was transferred to Heathrow. Miss McCafferty submitted that the decision in Williams supported her case. Just as Ms Hunt was, by reason of her sickness, an atypical peripatetic employee, so Mr Williams was an atypical expatriate employee on secondment. He was ordered back to Nottingham; Ms Hunt was transferred back to Heathrow; in neither case did that change come into effect. Thus the two cases were in substance very similar. She relied particularly on the stress laid by the EAT, in the passage I have quoted, on the need to focus on what actually happened rather than on what would have happened in different circumstances, e.g. in Mr Williams case if he had returned to work in Nottingham.

Conclusions

The First Ground

31. I have not found it difficult to reach a conclusion as to Mr West's first ground of appeal, namely that the Tribunal's judgment does not contain the insufficiency of reasons for which he contends. I do not need to resolve the conflict between Mr West and Miss McCafferty as to whether the Tribunal was invited on behalf of United to consider Chicago as the appropriate base rather than London or the USA rather than London. Miss McCafferty, without seeking to check from notes made at the time, accepts that she may have referred to "the States" rather than specifically Chicago; but no other location in the United States than Chicago was ever suggested or envisaged from the evidence; Mr West did not suggest that he had taken any point at the hearing before the Tribunal on the lack of clarity as to where, in the United States, United was seeking to locate Ms Hunt's base. The resolution of this forensic disagreement is not necessary because, as paragraphs 20 and 21 of the Tribunal's judgment demonstrate, and as indeed as is not in dispute, the principal thrust of Miss McCafferty's submissions was that Ms Hunt was not based at Heathrow; for Ms Hunt could only establish jurisdiction if her base was shown to be London.
32. The Tribunal had therefore to decide whether Ms Hunt's base was or was not in London; and that it expressly did in paragraph 30 of its judgment in the words

"She was not in fact based or working at Heathrow at the time she was dismissed."

The Tribunal, in my judgment, did not need to go any further or to state what was the location of Ms Hunt's base; it needed only to determine whether it was or was not to be found in London; and that it did, giving reasons why it came to that conclusion.

33. Further I accept Miss McCafferty's submission that, although it was in my judgment strictly unnecessary for the Tribunal to do so, it is clear that the Tribunal did find that Chicago (or the USA) was the relevant base. First, if, as is common ground, the choices before the Tribunal were London or Chicago (or the USA without Chicago being expressly identified), by concluding that Ms Hunt was not based in Great Britain at the time of her dismissal the Tribunal have implicitly concluded that her base was elsewhere i.e. in Chicago (or the USA). Secondly, if the judgment is read as a whole and in particular the findings of fact in paragraph 17 are read together with paragraph 30 the Tribunal can be seen expressly to have concluded that Ms Hunt's base was Chicago (or the USA) for the reasons they set out.
34. The Tribunal was required by the principles in the authorities to which I have referred earlier to set out its reasons for its conclusion so as to enable the parties to see why they have respectively lost and won. In my judgment it did not, in paragraph 30, fall short of those requirements; the reasons for its conclusion are amply and satisfactorily set out. In truth, Mr West's argument that, had the Tribunal asked where Ms Hunt's base was rather than whether she was based in London, they could only have come to the conclusion that her base was in London is more appropriate to his second ground of appeal and not to a reasons ground, as the first ground admittedly is.

Second Ground

35. In contrast the second ground raises what appear to me to be very real difficulties. Had the facts of the present case not arisen in real life they could readily have been made the subject of a moot by distinguished academics, the result of which would not have been easy to predict. The unusual facts of this case may well never be repeated; but that does not make the correct resolution easier to ascertain.
36. It is common ground that Ms Hunt was to be regarded, using the classification adopted by Lord Hoffmann, as a peripatetic employee and that neither party suggested to the Tribunal that she should be regarded as having no base at all at the material time i.e. the date of dismissal. It is also common ground, therefore, that the Tribunal's task was to decide whether, at that date, she was based in Great Britain, i.e. in London or not, following paragraph 29 of Lord Hoffmann's speech (paragraph 5 of my attempted distillation of that speech). As I have already set out Mr West submits that the correct approach to that task is to apply a "but for" test; Miss McCafferty submits that the correct approach is to apply an "as is" and not an "as if" test. I agree that the choice between those two tests is decisive.
37. While it is tempting to apply the "but for" or "as if" test, in my judgment the Tribunal was right to resist that temptation. I agree with Mr West that, if the Tribunal had looked only at where Ms Hunt was working at the material time, it would have applied too narrow a test; for, because of her sickness, she was not working at all; yet neither party suggested that she had no base. In the standard case of a peripatetic employee the base is likely to be the place where that employee ordinarily works, as Lord Hoffmann said at paragraph 29 of his speech, adopting what Lord Denning had said in Todd v British Midland Airways [1978] IRLR 320. However in the case of a peripatetic (or any) employee there may be many situations in which the employee is not actually working at the date of the dismissal; and in such a case, in my judgment, the Tribunal must look more broadly at the facts in evaluating where the employer's base was rather than simply asking where the employee was working at that date.
38. However it does not, in my judgment, follow that in such a case the Tribunal must as a matter of law ask itself what would have been the position if the facts were different. What the Tribunal was required to do in this case was to consider the factual circumstances which indicated how the contract was being operated at the time of the dismissal. The Tribunal expressly referred to the need to take that approach in paragraphs 20 and 29 of its judgment. Having directed itself as it did in paragraph 29, the Tribunal then in paragraph 30 did not base itself only on where Ms Hunt was or had been working; it referred to the indications, as to which it had found the facts earlier in the judgment, which pointed away from a London base and, specifically, to the process of managing her ill health issues in Chicago.
39. Had the Tribunal accepted the temptation held out to it by Mr West at paragraph 26 it would, in my judgment, have been departing from the approach required of it by Lawson, namely to look to see how the parties were at the relevant time actually operating the contract. Although Lawson lays down that, at least at present, the evaluation which has to be carried out is a question of law, that evaluation is likely to be fact-sensitive; that is why Lord Hoffmann regarded it as important that respect should be paid to the decision of the primary fact finder; and while it is natural to seek a solution to a difficult task of evaluation by asking what would be the solution were the facts in some way different, that in my judgment would, in the present context, have been an erroneous approach or at least not an approach which the evaluator is bound in law to adopt.
40. I find support for the above view in paragraph 22 of the EAT's judgment in Williams. I do not regard the fact that Mr Williams never worked for the university in England whereas Ms Hunt had worked in England for United, but not since 2000, as a material distinguishing feature; the fact that Ms Hunt had so worked could not have been of any real significance in the evaluation in her case; and although it is correct that the university agreed to allow Mr Williams to remain in Malaysia, the EAT indicated in paragraph 22 of its judgment in that case that that was not a material factor; whether Mr Williams could have been required to return to Nottingham or not was irrelevant; what was important was that he had not gone back to Nottingham but remained in Malaysia. The EAT was thereby rejecting the "what if" approach.
41. I acknowledge that an EAT decision, albeit highly persuasive, is not formally binding on me and that therefore it is not necessary that Mr West should be able to find a real distinction between the facts in Williams and the facts of the present case; but I regard that decision, despite Mr West's valiant attempt to distinguish it, as at least providing guidance and reassurance that the approach I have adopted is correct.
42. For these reasons I do not accept Mr West's submission that the Tribunal had applied the wrong test in paragraph 30 of its judgment. However, because the decision as to where Ms Hunt was based is, by reason of the decision in Lawson, to be regarded as a matter of law, I must carry out some degree of evaluation of my own. Miss McCafferty agreed that, for that reason, I was not restricted in this appeal against the Tribunal's evaluation, once it was decided that the Tribunal had not applied the wrong test, to considering perversity - which as she correctly pointed out – is not put forward as a ground of appeal; but she submitted that the evaluation was highly fact-dependent and that I should not depart from the conclusion reached by the Tribunal who heard the evidence, unless it was very clearly established that the Tribunal's evaluation was wrong.
43. I do not go all the way with that submission; but I must at least give considerable respect to the Tribunal's evaluation, and I must direct myself, as the Tribunal did, to consider what was actually happening at the material time rather than contractual entitlement or what might have happened had the facts been different. At the material time Ms Hunt's transfer to London had not taken effect, as the Tribunal's detailed findings demonstrate, to any material degree. She had not worked in London at all since the anticipated transfer date or since 2000. She had no contact with London (save for one abortive telephone call which is of no importance). Although some of the documents contain a designation code or description of Ms Hunt as being at Heathrow, they are purely administrative documents which do not demonstrate or record any actual contact or connection between Ms Hunt and Heathrow. Moreover (apart from payment of sick pay, which as I understand it, had ceased by the date of dismissal) the only active element of Ms Hunt's employment was the management of her continuing ill health absence which was, as the Tribunal justifiably and correctly found on the evidence, directly managed from Chicago. It was so managed over a lengthy period culminating in Ms Hunt's dismissal, from Chicago. In those circumstances I agree with the Tribunal's evaluation. On the evidence the Tribunal was entitled to find and correctly found that Ms Hunt was not based in London. Making my own evaluation I reach the same conclusion. Accordingly the Tribunal had no jurisdiction to hear her unfair dismissal claim.
44. For the above reasons this appeal is dismissed.