Windstar Management Services Ltd v Harris

For the territorial reach of the right not to be unfairly dismissed under section 94(1) of the Employment Rights Act 1996, a peripatetic employee’s base is determined from the employment relationship as operated in practice. A seafarer has no automatic statutory base at the port where the ship is joined or left. The Employment Tribunal may find that duty begins and ends elsewhere, including at a UK airport, where the contract and practical arrangements support that conclusion. Relevant factors include the employee’s base, the place from which paid duty begins and ends, the choice of governing law, recruitment and disciplinary arrangements, and other connections with Great Britain. Courts should not replace the repealed territorial limit with detailed rules for seafarers.

Mr Harris, a British master mariner, was employed on a cruise ship which operated predominantly outside UK territorial waters. He lived in Kent, travelled from UK airports to join the ship, and was paid for periods beginning on departure from the UK and ending on return. His employment contract was governed by English law.

The Employment Tribunal held that it had jurisdiction over his unfair dismissal claim under section 94(1) of the Employment Rights Act 1996. Windstar Management Services Ltd appealed, arguing that a seafarer’s base had to be the port where the voyage began and ended, or alternatively that the Tribunal had misdirected itself about when duty began and ended.

1. Appeal dismissed. The Employment Tribunal did not err in law in holding that Mr Harris could rely on the right not to be unfairly dismissed.
2. The governing approach is the general construction of section 94(1) described in Lawson v Serco and developed in Duncombe and Ravat. The question is whether the employment has a sufficiently strong connection with Great Britain and British employment law for section 94(1) to apply. The inquiry is one of law applied to facts and degree. Courts should avoid inventing detailed ancillary rules after Parliament repealed the express territorial limitation.
3. For a peripatetic employee, the base principle remains relevant. The question is where the employee, rather than the employer or ship, is based. The place where duty or paid working time begins and ends is an important factor, but it is not an inflexible rule that fixes a seafarer’s base at the port of embarkation or disembarkation.
4. Diggins v Condor Ltd was binding and did not decide whether duty must be confined to time spent aboard ship. Its references to duty and tours of duty left it open to the Tribunal, on appropriate facts, to find that duty began and ended elsewhere than at a port. The practical arrangements and contractual obligations may include periods for which the employee is paid.
5. The choice of English law was a relevant factor. It could, together with the other circumstances, show that the employee’s base was Great Britain. Dhunna v CreditSights Ltd did not make such a clause irrelevant; it merely showed that the clause carried little weight on its particular facts.
6. The decision in R (Fleet Maritime Services (Bermuda) Ltd) v Pensions Regulator was not followed in the section 94 context. It concerned a different express statutory test, a different factual and procedural setting, and did not consider the significance of a choice of law clause. The Tribunal was entitled to find that Mr Harris’s duty began and ended in Great Britain and that the other factors did not displace that conclusion.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal sitting at London (South) dismissed. The Tribunal’s decision was sent to the parties on 12 November 2015.
• Employment Tribunal: Held that it had jurisdiction to determine the unfair dismissal claim under section 94(1) of the Employment Rights Act 1996.