Windstar Management Services Limited v Harris
Employment Appeal Tribunal decision upholding an ET finding that it had jurisdiction to hear a claim of unfair dismissal brought by an employee who worked on a cruise ship throughout Europe and the Caribbean.
Windstar, a Company incorporated in the Channel Islands and which managed cruise ships, employed Mr Harris ("H") as a ship master. The cruise ship on which H worked toured throughout Europe and the Caribbean, but day to day operations were directed from the US and the ship itself was US-owned.
H's employment contract provided for English law to apply in the event of a dispute and his code of conduct originated from a British collective agreement. H lived in the UK, and the calculation of his "days of service" began on the day he flew from the UK to whichever port the ship was located and ended when he landed back in the UK following completion of the voyages for which he was employed. H was dismissed and brought a claim for unfair dismissal which Windstar challenged on jurisdictional grounds (i.e. that its employment did not have sufficient connection to Great Britain). The ET found that it had jurisdiction to hear the claim and Windstar appealed that decision.
The EAT upheld the ET's finding that it had jurisdiction to hear the unfair dismissal claim, ruling that it had not erred in law. The ET had approached the matter with reference to the "base principle" – the concept that jurisdiction is determined by the location where theemployee, rather than the employer, is based. It found that H was based in the UK and was therefore entitled to statutory protection from unfair dismissal. In particular, the ET noted that H's days of service began on the date he left and ended on the date he returned to the UK, rather than being limited to the dates he was actually on board the ship, and took into account the choice of English law in H's employment contract.
Global mobility is of increasing relevance for employers and it is important they understand their legal exposure with an ever mobile workforce. This case demonstrates that English courts will make findings on the facts of each individual case and that providing for a choice of law, or stating the employee's 'base' in employment contracts will be relevant information when determining these issues.