English unfair dismissal right may apply to crewmembers of ships registered overseas and not in Great Britain

11 November 2009

Summary
The Court of Appeal has ruled that a seaman who was employed to work on a ship that was registered in the Bahamas and who was employed through an off-shore company, was entitled to bring a claim for unfair dismissal in the English Employment Tribunal of Diggins v Condor Marine Crewing Services Ltd (2009)

Facts of case
Condor Marine Crewing Services Ltd operates from and is registered in Guernsey. It employed Mr Diggins (D) through a subsidiary company as a chief officer on board a vessel which shuttled between the Channel Islands and Portsmouth. The vessel was registered in the Bahamas. D lived on the vessel when he was working aboard as chief officer. His tours of duty aboard ship started and finished in Portsmouth where D disembarked at the end of each period of service. In addition, he lived in Lowestoft, England.

D complained that he had been unfairly dismissed but the Employment Tribunal (ET) rejected his claim. This was because the ET stated that section 199(7) of the Employment Rights Act 1996 meant that D was excluded from the English employment law right not to be unfairly dismissed. This was because the section stated that for the right to apply, the vessel on which D worked must be British-registered. The ET also stated that under his contract of employment D’s work was wholly outside Great Britain.

Unfair dismissal claim
D appealed and the matter was heard by the Court of Appeal (Court) who decided that D was entitled to bring his claim for unfair dismissal in England because:

Section 199(7) did not necessarily exclude D’s case being heard by the ET. D was part of a category of peripatetic employees not excluded under s 199(7). Such employees could bring claims for unfair dismissal in England if they met the conditions stated in the House of Lords case of Lawson v Serco (Serco) Ltd (2006).

Applying the rule in Serco, the Court needed to establish where D’s base was and his working practices before he could bring his claim for unfair dismissal. The Court noted that D's tours of duty started and finished in Portsmouth. It was also established that he was normally resident in Lowestoft.

They cited with approval Lord Denning’s comments in Todd v. British Midland Airways Ltd (1978) where it was said: 'A man's base is the place where he should be regarded as ordinarily working, even though he may spend days, weeks or months working overseas. ... You have to go by the conduct of the parties and the way they have been operating the contract. You have to find at the material time where the man is based.”

The conclusion reached by the Court was that if one asks where D’s base was, there can only be one sensible answer: it was where his duty began and where it ended. The company may have been based in Guernsey but D had no real connection with that place and he had even less a link with the Bahamas, where the ship was registered.

The Court did not accept that the considerations of where the company operated or where the ship was registered could have any significant influence on the question where a particular employee was based. D was based in England.

Comment
Parliament did not intend that any employee employed anywhere in the world could take a claim for unfair dismissal before the British courts. Only crew who can show they are peripatetic employees based in Great Britain are likely to be able to claim employment law rights protecting them against unfair dismissal. This judgment ends what has been called an “arbitrary difference” between those working on board aircraft and those employed on ships, since up until now, aircrew, but not ship’s crew, could often bring unfair dismissal claims in England.