Diggins v Condor Marine Crewing Services Ltd
Employment Appeal Tribunal (UK)
A recent decision of the UK Employment Appeal Tribunal (“EAT”) reminds us that the tentacles of UK employment law can sometimes extend across the waters to be binding on Guernsey employers and companies.
Mr Diggins (“D”) was employed by Condor Marine Crewing Services Limited (“Condor”) as a chief officer on the ferry between Portsmouth and the Channel Islands. It was accepted that Condor was based in Guernsey and that D’s contract of employment with the company expressly provided that it was governed by Guernsey law. D, however, lived in the UK and joined and left the vessel in Portsmouth each working day. The ferry was registered in the Bahamas.
D wanted to bring a claim against Condor for unfair dismissal under section 94(1) of the UK Employment Rights Act 1996 (as amended) (the “ERA”). Condor argued that the jurisdiction of the UK tribunals was excluded, primarily because of specific provisions in section 199 of the ERA that apply to mariners. The company was successful in the Southampton Employment Tribunal and D appealed to the EAT.
The EAT noted that specific provisions of the ERA rendered it immaterial to a claim for unfair dismissal that D’s employment contract was governed by Guernsey law.
Much of the EAT’s decision deals with the statutory history and interpretation of the mariners’ provisions at section 199.
Ultimately it was decided that nothing in section 199 prevented D from bringing an unfair dismissal claim and so his case fell to be determined according to normal principles concerned with the jurisdiction of UK Employment Tribunals. These principles are set out in the leading House of Lords case, Serco Limited v Lawson1 .
Lawson concerned a UK-based company which operated globally, providing services to both the public and private sectors. The Company engaged Mr Lawson to work as a security supervisor on Ascension Island, where it had a contract to service the Royal Air Force base. The House of Lords held that, in any case where the jurisdiction of the UK Tribunals is at issue, the correct approach was to ask whether the employee was “working in Great Britain”. However, the phrase “working in Great Britain” should be treated as a general principle rather than a firm rule and assessed at the time of dismissal, rather than by reference to the terms of the contract. In the case of a “peripatetic” employee whose work took him to many different places (such as a pilot for an international airline), that employee’s base should be treated as his place of employment for the purpose of establishing jurisdiction. In the case of an “expatriate” employee working and based abroad, jurisdiction will only arise in exceptional cases. Examples given were where the employer operates within a political or social British enclave in a foreign country, or where employees were posted abroad for the purposes of a business carried on in Great Britain (such as a foreign correspondent on the staff of a British newspaper).
Applying Lawson, the EAT in Diggins held that the tribunal had erred in law in concluding that D was excluded from the right to claim for unfair dismissal before a UK tribunal. The EAT then went further and held that it was satisfied that D fell within the class of peripatetic employees considered in Lawson, and that whether or not he was entitled to bring the claim depended on where he was based at the time of his dismissal. The EAT acknowledged that Condor was based in Guernsey but stressed that the question was where the employee, not the employer, was based. After referring to the fact that D lived in the UK and started and finished his tours of duty in Portsmouth each working day, the EAT concluded that D was based in the UK, and therefore had a right to claim unfair dismissal under UK law.
While Guernsey law may be stated to be the governing law of the employment contract, this will not necessarily preclude the application of foreign (for example UK) statutory employment rights. In some instances an employee may qualify for protection under foreign laws that do not have a Guernsey equivalent, for example various UK anti-discrimination laws and statutory provisions conferring certain maternity, redundancy payment and minimum notice rights.
Guernsey employers with employees who work abroad should take note that Diggins has brought the long arm of UK employment law one step closer to Guernsey.