Diggins v Condor Marine Crewing Services Ltd

The ship-specific rules in Part 10 of the Employment Rights Act 1996 do not exhaustively exclude employees working on foreign-registered ships. Section 199(7) applies to the specified class of ships in the UK register and sets conditions for that class. Other shipboard employees may establish territorial jurisdiction under the general principles governing employment outside Great Britain.

Mariners are peripatetic employees. The practical question is whether the employee was based in Great Britain, assessed principally by the actual operation of the employment and where duties began and ended. The employer’s base and the ship’s registration generally carry little weight. Territorial scope is a question of law where the facts are sufficient.

Mr Diggins was employed as a chief officer on a vessel registered in the Bahamas. The appellant company operated from Guernsey, while the vessel principally operated between the Channel Islands and Portsmouth. Mr Diggins lived in Lowestoft and his tours of duty began and ended in Portsmouth.

After his dismissal, the Employment Tribunal held that it had no jurisdiction to hear his unfair-dismissal claim because he worked on a foreign-registered ship. The Employment Appeal Tribunal overturned that decision, holding that jurisdiction existed in principle and that Mr Diggins was based in Great Britain. The employer appealed on the construction of section 199(7) and on whether the factual conclusion should have been remitted to the Employment Tribunal.

Appeal dismissed.

1. Section 199(7) of the Employment Rights Act 1996 is not an exhaustive code governing every person employed on a ship. It identifies employment on ships in the specified UK register and states when the statutory rights apply to that class. Its language and statutory history support that construction. The authorities considered by the EAT, including Royle v Gloptik Management Ltd [1977] ICR 552, Wood v Cunard Line Ltd [1990] IRLR 281 and The Geest Line v Wright EAT/873/93, supported the same conclusion.
2. The general territorial principles in Lawson v Serco [2006] UKHL 3 therefore remained relevant. Comity did not require a different construction. Observations in Lawson v Serco about statutory provision for mariners did not establish that section 199(7) was exhaustive, particularly as its scope had not been argued in that case.
3. For territorial scope under section 94(1), the question whether the facts fall within the statutory jurisdiction is a question of law, although the primary fact-finder’s assessment merits considerable respect. The EAT was consequently entitled to decide the issue without remitting it, since no further material facts were required and remittal would impose unnecessary cost.
4. Mariners fall within the peripatetic category. The base inquiry is practical and concerns where the employee was based at the material time. Mr Diggins’s duties began and ended in Portsmouth, and his home was in Great Britain. The company’s Guernsey base and the vessel’s Bahamian registration did not materially alter that conclusion.

The order was that the appeal be dismissed.

• Court of Appeal (Civil Division) dismissed the employer’s appeal: [2009] EWCA Civ 1133.
• Employment Appeal Tribunal, HHJ Burke QC sitting alone, overturned the Employment Tribunal and held that the tribunal had jurisdiction in principle and that Mr Diggins was based in Great Britain.
• Employment Tribunal held that it had no jurisdiction to hear the unfair-dismissal claim.