Wittenberg v Sunset Personnel Services Ltd

Territorial reach of British employment legislation is determined by the strength of the connection between the employment relationship, Great Britain and British employment law. The place of work is the starting point, although it is not conclusive. An employee who lives and works abroad must ordinarily show an especially strong connection before the general rule is displaced.

A choice-of-law clause is relevant but is not decisive. The Equality Act 2010 provisions concerning work by seafarers apply only in the prescribed circumstances. Rights derived from EU law do not automatically have worldwide territorial reach. The appeal was refused, with the breach of contract claim remitted to the Employment Tribunal.

The claimant was a German national living in Germany and working principally offshore Nigeria as a mariner. His employer was Fairway Personnel Services Ltd, a company registered in Scotland and operating from Aberdeen. His work was performed outside the United Kingdom, the European Union and UK territorial waters, and not on a UK-registered ship.

The Employment Tribunal held that it had jurisdiction over the common-law breach of contract claim but that the statutory claims lacked territorial reach. The statutory claims concerned unfair dismissal and other rights under the Employment Rights Act 1996, discrimination claims under the Equality Act 2010, and annual leave under the Working Time Regulations 1998. The appeal concerned whether the Tribunal had applied the correct territorial-scope test and whether EU-derived rights or the seafarer provisions altered the result.

1. Appeal and applicable approach. The appeal was refused. Territorial reach is distinct from international jurisdiction and applicable law. For employment legislation without an express territorial provision, the question is whether the connection with Great Britain and British employment law is sufficiently strong to justify presuming that Parliament intended the legislation to apply.
2. Employment Rights Act 1996. The place of employment is the starting point, although it is not decisive. An employee who both lives and works abroad requires an especially strong connection with Great Britain and British employment law. The inquiry is one of fact and degree. The claimant’s employer, the Aberdeen offices, the choice-of-law clause and references to UK employment legislation were relevant, but insufficient. His work was performed offshore Nigeria, he lived in Germany, the employing group was American, and there were no other features powerful enough to displace the pull of the place of work.
3. Choice of law. Section 204 did not prevent consideration of the proper law of the contract. It prevented the choice of law from being decisive or from contracting out of the Act. The choice-of-law clause was therefore a factor to be weighed in assessing territorial connection.
4. Seafarers and discrimination claims. The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 applied to the claimant’s claims under section 39, because they were claims concerning work and dismissal within Part 5. The claimant did not satisfy regulation 4, since the ship was not registered at a port in Great Britain.
5. EU-derived rights. The principle in Bleuse did not establish worldwide territorial reach for rights derived from EU directives. Such rights may require effective enforcement within the EU, but the claimant’s work was outside the EU and there was no sufficiently close connection with EU law or a member state’s employment law.
6. Disposition. The respondent’s name was amended to Tidewater Support Services Limited. The appeal was refused and the case was remitted to the Employment Tribunal to hear the breach of contract claim.

• Employment Appeal Tribunal. Earlier decisions of the Employment Tribunal dated 18 January 2013 and 22 June 2015 determined the employer’s identity and territorial reach. The appeal proceeded on the territorial-scope issues.
• Employment Appeal Tribunal. The appeal was refused. The common-law breach of contract claim was remitted to the Employment Tribunal.