The Pensions Regulator (TPR) had issued a compliance notice to a Bermuda-incorporated cruise company requiring all British domiciled workers to be assessed for auto-enrolment. In response, the employer brought a judicial review on the basis that the ships operated principally outside of UK waters and therefore the workers should not be subject to UK auto-enrolment legislation.
The question in R (Fleet Maritime Services (Bermuda) Limited) -v- The Pensions Regulator was whether seafarers employed by the claimant fell within the territorial scope of the Pensions Act 2008 (the Act), as TPR maintained, so as to qualify for automatic enrolment into a pension scheme in accordance with the Act. This hinged on the meaning of section 1(1)(a) of the Act, which defines a worker ‘who is working or ordinarily works in Great Britain under the worker's contract’.
The legal rights of ‘peripatetic’ employees such as airline pilots or expatriate workers who are posted overseas for extended periods has been a grey area for a long time. The Court followed the Lawson -v- Serco approach to determining a peripatetic worker's ‘base’ for the purposes of unfair dismissal jurisdiction and concluded that the approach was also applicable to the Act.
The High Court therefore determined that British domiciled workers were subject to auto-enrolment requirements if their work normally started and ended from a British port but not if they usually travel to a non-British port to join the ship. In this case, the time spent traveling between British and foreign ports was paid but was regarded as commuting time rather than actual working time.
Leggat J concluded that ‘a seafarer who lives in Great Britain but who works on a ship which spends all or most of its time outside Great Britain and whose tours of duty do not habitually begin and end in Great Britain cannot be regarded as based in Great Britain or as a worker who ordinarily works in Great Britain under the worker's contract.’ For the Act to apply, some degree of regularity is also required as a single tour cannot establish a base.
The Court therefore found that TPR had erred in issuing the compliance notice.