The Court of Appeal (“CA”) has upheld a decision of the Employment Appeal Tribunal that a seaman employed on a ship registered outside Great Britain can bring an unfair dismissal claim in the UK, provided he can show that he satisfies the extra territorial jurisdiction test established in the House of Lords decision Lawson v Serco, namely that his duty begins and ends in the UK.
The seaman was a former chief officer, who was resident in Suffolk and worked two-week rosters on a vessel which travelled between the Channel Islands and Portsmouth. The ship was registered in Nassau in the Bahamas.
The CA considered the seaman to be a “peripatetic worker” (that is, an employee who travels from one place to another). A peripatetic worker will fall within the jurisdiction of UK courts if he can establish his employment is ‘based’ in the UK.
The CA emphasised that “if one asks where this employee’s base is, there can only be one sensible answer: it is where his duty begins and where it ends.” The seaman left each day from a UK port, to which he then returned each evening. The location from which the employer operated and the place where the ship was registered were not significant in determining this question. In this instance, applying the Lawson v Serco text, the employee’s base could only be said to be the UK.
Employers with peripatetic employees may encounter the issue as to whether those employees might have accrued employment rights in a foreign jurisdiction, a matter which becomes of paramount importance upon termination. Employers should carry out a careful assessment of the employee’s actual and potential employment rights before effecting a termination. When carrying out such an assessment, employers should look beyond the written terms of the employment contract and consider how it operates in practice.