Diggins v Condor Marine Crewing Services Ltd

The Court of Appeal considered whether a seaman employed on a vessel registered outside Great Britain can bring a claim for unfair dismissal and whether the Employment Tribunal had jurisdiction in the present facts. The court held that section 199(7) of the Employment Rights Act 1996 (the deeming provision for persons employed on board ships registered in the United Kingdom) is not exhaustive of all maritime situations and does not exclude the application of the territorial linkage principles laid down in Lawson v Serco [2006] UKHL 3. The key legal test for peripatetic employees remains whether the employee had a base in Great Britain; applying that test the court upheld the Employment Appeal Tribunal's conclusion that the claimant was based in Great Britain and that the tribunal therefore had jurisdiction.

Background and parties. The claimant, Mr Diggins, was employed through a Guernsey company as chief officer on a vessel registered in Nassau which traded mainly between the Channel Islands and Portsmouth. He lived on board during tours of duty but his home was in Lowestoft. He was dismissed with effect from 1 April 2007 and brought a claim for unfair dismissal.

Procedural history. The Employment Tribunal held it had no jurisdiction because the vessel was registered outside Great Britain. That decision was reversed by the Employment Appeal Tribunal (HHJ Burke QC), which concluded in principle that the tribunal could have jurisdiction and that the claimant was based in the United Kingdom. The employer appealed to the Court of Appeal.

Nature of the claim / relief sought (i). A claim for unfair dismissal under Part 10 of the Employment Rights Act 1996.

Issues framed by the court (ii).

• Whether section 199(7) of the Employment Rights Act 1996 exhaustively governs the jurisdiction of British tribunals over seafarers employed on board ships; and
• If not, whether the Employment Tribunal had jurisdiction in the particular circumstances by reference to the territorial link principles identified in Lawson v Serco [2006] UKHL 3, specifically whether the claimant had a base in Great Britain.

Reasoning and decision (iii). The court rejected the appellant's argument that section 199(7) was intended to be exhaustive. The statutory language and history show that section 199(7) creates a deeming class of persons on certain British-registered ships for whom jurisdiction is available if specified conditions are met, but it does not displace the general Serco principles applicable to peripatetic employees. The court endorsed the EAT's application of the Serco test: the relevant inquiry is where, in practice, the employee was based, looking at where tours of duty began and ended and other practical factors. On the facts, the claimant's tours began and ended in Portsmouth and he lived in Lowestoft; he therefore had a base in Great Britain. The Court of Appeal dismissed the appeal and upheld the EAT's conclusion that the Employment Tribunal was not prevented from exercising jurisdiction. The court also held that it was appropriate for the EAT to decide the base question as a legal issue in the absence of primary findings on that point.

Wider context. The court noted the Serco decision as supplying the territorial linkage principles following repeal of the earlier statutory exclusion and observed that the judgment preserves the ability of peripatetic employees, including seafarers, to establish jurisdiction by showing a sufficient link (a base) in Great Britain.

Appeal dismissed. The Court of Appeal held that section 199(7) of the Employment Rights Act 1996 is not an exhaustive code displacing the general territorial-linkage principles established in Lawson v Serco [2006] UKHL 3. For peripatetic employees the relevant test remains whether the employee had a base in Great Britain; applying that test the claimant was based in Great Britain and the tribunal had jurisdiction. The EAT was entitled to decide the base question on the material before it.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (HHJ Burke QC), which had allowed the claimant's appeal against an Employment Tribunal decision that it lacked jurisdiction. Neutral citation for this appeal: [2009] EWCA Civ 1133.