Wittenberg v Sunset Personnel Services Ltd & Ors

An employment tribunal deciding the identity of an employer must determine which entity was in truth the employer. It must not decide the issue merely by identifying the entity which performed functions commonly associated with employment, such as payroll, personnel administration or issuing a dismissal letter. Those functions may be performed by a contractor.

Where an employment tribunal has used that incorrect test, the factual issue will ordinarily require reconsideration by the tribunal which heard the evidence. Territorial reach may depend on the employer’s identity and place of business. A tribunal must also take account of relevant statutory regulations governing seafarers before deciding the territorial application of the Equality Act 2010.

The claimant was a German mariner living in Germany who worked as chief engineer on a vessel operating offshore Nigeria. He brought claims for dismissal-related statutory rights, discrimination, holiday pay and contractual redundancy pay against companies in the Tidewater group.

The Employment Tribunal held that Fairway Personnel Services Ltd was his employer. It dismissed the statutory claims for want of territorial jurisdiction, but held that it could hear the contractual claim. The respondents cross-appealed the finding on the employer’s identity, and the claimant appealed the territorial rulings.

The central issues were the correct test for identifying the employer and whether the statutory claims could be determined without consideration of the regulations governing work on ships and hovercraft.

1. Error of law on employer identity. The Employment Tribunal applied the wrong test. It asked which company performed functions most characteristic of an employer and treated the personnel functions undertaken by Fairway as determinative. The correct question was which company actually was the claimant’s employer. Payroll and personnel functions can be carried out by contractors and do not, without more, identify the employer.

2. The Employment Tribunal’s analogy with agency work was irrelevant to the complex crewing arrangements in the maritime and offshore industries. Its finding that Fairway acted autonomously in dismissing the claimant was also inconsistent with its findings that managers in Nigeria decided he should not return to the vessel and instructed Fairway’s employee to dismiss him.

3. The Employment Appeal Tribunal was minded to remit the employer issue to the Employment Judge. The issue depended on factual findings made after hearing the evidence, and the employer’s identity and place of business were relevant to territorial reach.

4. Territorial reach reserved. The EAT did not finally determine the claimant’s statutory territorial-jurisdiction appeal. Neither tribunal had been addressed on the relevant provisions of the Equality Act 2010 (Work on Ships & Hovercraft) Regulations 2011. Those provisions showed that the Equality Act 2010 was not silent as to seafarers’ territorial reach. Fresh submissions were therefore required.

5. The EAT gave only a preliminary view that, on the arguments then advanced, the Employment Tribunal had not made a substantive error in finding an insufficient connection with Great Britain. It directed the parties to make representations on disposal, the regulations and the contractual term referring to statutory employment protection.

• Employment Appeal Tribunal: held that the Employment Tribunal had applied the wrong test to the identity of the employer, and reserved final disposal pending submissions.
• Employment Tribunal, Aberdeen: decision advised 18 January 2013. It found Fairway Personnel Services Ltd to be the employer; dismissed the statutory claims for lack of territorial jurisdiction; and allowed the contractual redundancy claim to proceed against Fairway.