The Court of Appeal (“CA”) has upheld a decision of the Employment
Appeal Tribunal that a seaman employed on a ship registered outside
Great Britain can bring an unfair dismissal claim in the UK, provided he
can show that he satisfies the extra territorial jurisdiction test
established in the House of Lords decision Lawson v Serco, namely that
his duty begins and ends in the UK.
Facts
The seaman was a former chief officer, who was resident in Suffolk
and worked two-week rosters on a vessel which travelled between the
Channel Islands and Portsmouth. The ship was registered in Nassau in
the Bahamas.
The CA considered the seaman to be a “peripatetic worker” (that is,
an employee who travels from one place to another). A peripatetic
worker will fall within the jurisdiction of UK courts if he can
establish his employment is ‘based’ in the UK.
The CA emphasised that “if one asks where this employee’s base is,
there can only be one sensible answer: it is where his duty begins and
where it ends.” The seaman left each day from a UK port, to which he
then returned each evening. The location from which the employer
operated and the place where the ship was registered were not
significant in determining this question. In this instance, applying
the Lawson v Serco text, the employee’s base could only be said to be
the UK.
Commentary
Employers with peripatetic employees may encounter the issue as to
whether those employees might have accrued employment rights in a
foreign jurisdiction, a matter which becomes of paramount importance
upon termination. Employers should carry out a careful assessment of
the employee’s actual and potential employment rights before effecting a
termination. When carrying out such an assessment, employers should
look beyond the written terms of the employment contract and consider
how it operates in practice.
Resources
Diggins
v Condor Marine Crewing Services Ltd [2009] EWCA Civ 1133
For further information or to discuss the issues raised, please
contact Colina Greenway (colina.greenway@abbisscadres.com)
on +44 (0) 203 051 5711.
