Fleet Maritime Services (Bermuda) Ltd, R (on the application of) v The Pensions Regulator (Rev 1)

For the purposes of the Pensions Act 2008, a peripatetic worker ordinarily works in Great Britain where the worker is based there for work purposes. The assessment generally depends on how the contract operates in practice, rather than solely on its terms when made or on the proportion of working time spent in Great Britain.

A ship is not a seafarer’s base. It is a means of transport, and work aboard it occurs in Great Britain only while the ship is within Great Britain. A seafarer may nevertheless be based in Great Britain where tours of duty habitually begin and end at a British port. Paid travel to and from an overseas ship does not itself constitute work in Great Britain.

Fleet Maritime Services (Bermuda) Ltd, a Bermuda company employing crew on cruise ships, sought judicial review of a compliance notice upheld by the Pensions Regulator. The Regulator considered that certain UK-resident seafarers working mainly outside UK waters were within the territorial scope of the automatic-enrolment regime.

The central issue was whether those seafarers were workers who were working or ordinarily worked in Great Britain under their contracts within section 1(1)(a) of the Pensions Act 2008. The court reviewed three categories identified by the Regulator and considered the relevance of earlier employment-law authorities concerning peripatetic workers and seafarers.

1. Applicable approach. The statutory language is the starting point. Section 1(1)(a) does not impose a simple majority-of-working-time test. Such a test would be arbitrary and unsuitable for peripatetic workers. The relevant question is whether the worker is based in Great Britain for work purposes.
2. The phrase “under the worker’s contract” identifies the work relevant to section 1. It does not require the worker’s base to be determined solely from the contract’s terms. Consistently with Lawson v Serco Ltd, the court should generally examine how the contract is actually operated at the relevant time.
3. A ship cannot be treated as the worker’s base. A base is the fixed place from which a peripatetic worker departs and to which the worker returns. A ship is a means of transport. A seafarer works in Great Britain only when the ship is within Great Britain; work on the high seas is not work in Great Britain.
4. A seafarer who habitually begins and ends multiple tours of duty at a British port may therefore be regarded as based in Great Britain, even if most work is performed abroad. A single tour, or occasional departure from and return to a British port, is insufficient. Where tours habitually begin and end at ports in different countries, no British base may be identifiable.
5. The Regulator’s first category was legally correct, subject to assessing the actual regularity of the worker’s pattern. Whether the facts establish a British base is ordinarily a question of degree for the Regulator, subject to review for reasonableness. Its second category was legally incorrect: paid travel to and from an overseas ship is commuting, not work performed in Great Britain.
6. The claim succeeded to the extent that the Regulator’s decision required amendment and the decision was quashed. There was no order as to costs.

This was a first-instance judicial review. The judgment records that permission to proceed was granted by Mr Justice Mitting after permission had initially been refused on paper.