High Court rules on what amounts to "ordinarily working in Great Britain" for purposes of auto-enrolment legislation

Even where a worker spends most of his time outside this country, the High Court has ruled that he may be "ordinarily working in Great Britain" for the purposes of auto-enrolment legislation.  If a worker does not have a fixed place of work, what is key is where the worker's "base" is.

Background

The requirement to auto-enrol a worker into a pension scheme applies to an individual "who is working or ordinarily works in Great Britain under the worker's contract". 

The recent case of The Queen on the application of Fleet Maritime Services (Bermuda) Limited v The Pensions Regulator concerned cruise ship workers who were resident in the UK. For a significant majority of the time which the workers spent working on the cruise ships, they were outside UK territorial waters.  The Pensions Regulator asserted that workers living in the UK were "ordinarily working in the UK" if their tour of duty began and ended in the UK and therefore the employer was required to auto-enrol them in a pension scheme.  The employer did not accept the Regulator's view and brought judicial review proceedings.

The Court ruling

The court held that in the case of a worker who travels from place to place as part of his work, the question of whether he ordinarily works in Great Britain is determined by where he is "based". The concept of a base is that of a place from which a worker sets off at the start and to which the worker returns at the end of a period when the worker is travelling in the course of his work.  To satisfy this test there had to be "a sufficient degree of regularity" in the worker's departure from and return to a place.  A single tour beginning and ending at the same port would not justify regarding that port as the place where the worker "ordinarily" worked.

Some key points arising from the judgment

  • Base is to be determined by reference to how the contract is actually being operated at the relevant time, not by looking solely at the wording of the contract.
  • A person's base may be in Great Britain notwithstanding that most of his working time is spent outside Great Britain.
  • It is not necessarily the case that every worker will have a base.  The mere fact that no other country can be identified as the worker's base does not necessarily mean that a worker is ordinarily working in Great Britain. ·      
  • The length of a tour of duty does not of itself affect the question of where a worker is based. ·
  • A ship travelling from one place to another can not be regarded as the worker's base. ·
  • Perhaps surprisingly, the judge took the view that even where a worker was paid for travelling from the UK to an overseas port in order to join a cruise ship, the travel to the overseas port was commuting to a place of work rather than working. However, it appears this decision was based on specific wording in the relevant contracts which provided that tours of duty started and ended respectively on joining and leaving the cruise ship. ·
  • The judge took the view that a foreign worker sent to Britain by their employer for a few months to carry out a particular project should not be regarded as working in Great Britain for the purposes of the legislation.  The reference to "working in Great Britain" should be construed as "working with their base in Great Britain" rather than working in Great Britain on a temporary visit.  The judge did not need to decide this point to decide the case in question, so this part of the judgment is not legally binding on the Regulator.  It is nevertheless likely to affect how the Regulator interprets the law.

Comment

This is the first court case on the issue of what constitutes ordinarily working in Great Britain/the UK for the purpose of auto-enrolment legislation.  The approach applied in this case is similar to that which would be applied by a court considering an unfair dismissal claim  The case is particularly relevant to employers whose businesses involve international transport, but potentially relevant to other employers with workers whose time is split between the UK and other jurisdictions.