Employment Judge T Vincent RyanMr. G. Pollitt (instructed by Counsel) for claimantDate 27 October 2025
JUDGMENT
[1]The claimant’s application for an Order for Specific Disclosure dated 20th October 2022 was not pursued for the purposes of this hearing; it was not decided upon.[2]The Tribunal does not have jurisdiction to hear the claimant’s claims made under the Employment Rights Act 1996 or the Equality Act 2010.[3]Subject to the claimant establishing before a court in England & Wales (other than the Employment Tribunal) that such court would accept jurisdiction to hear a breach of contract claim made by him under normal principles of international private law, the Tribunal does not have jurisdiction to hear the claimant’s claim of breach of contract.
REASONS
[1]This hearing is to determine whether the Tribunal has territorial jurisdiction to hear the claimant’s (C’s) claims.[2]C, a seafarer, was employed by the respondent (R) as a Captain. He brings claims under: 2.1. the Employment Rights Act 1996 (ERA) (Unfair Dismissal, including Automatic Unfair Dismissal (Public Interest Disclosure - PIDA), Detriment (PIDA), and Unauthorised Deduction from Wages), 2.2. the Equality Act 2010 (EqA) (Race Discrimination and Disability, Discrimination, and Victimisation), and 2.3. for breach of contract (under the jurisdiction granted by the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 (“Extension Order”)).[3]R says that the Tribunal does not have jurisdiction in respect of any of the claims.[4]I had the benefit of an agreed hearing bundle and an authorities bundle. Both parties provided written skeleton arguments which they each then supplemented, both in writing and orally. I heard evidence from C and, on behalf of R, Captain Elio Autiero, Director of Human Resources for the company providing that support to R, and Mr James Halle, a Manager with a Company that supports the cruise shipping brand that engaged C.[5]I had the opportunity to pre-read and, following the hearing, to revise the documentation with particular emphasis on the authorities referred to by respective Counsel. So detailed were the respective analyses set out in the competing written and oral submissions that I cannot usefully supplement or better explain some of the principles in issue, and I may endorse parts of either submission by reference rather than re-hash them. I expressed my gratitude to counsel for their assistance, clarity, and reasonable brevity. The Issues:[6]There was no agreed List of Issues. This hearing was arranged at a preliminary hearing held on 29 June 2022 conducted by Employment Judge Jenkins. The minutes of the hearing say that this preliminary hearing is “to consider the issue of territorial jurisdiction…….. whether the Tribunal has jurisdiction to consider the claimant’s claims under [ERA, EqA, the Extension Order] by reference to the place and type of work undertaken by the claimant for the respondent”.[7]The issues I had to address were: 7.1. ERA Claims: given the implied territorial limitation, a seafarer usually working outside Great Britain cannot bring claims to the Tribunal save in exceptional circumstances where the connection is sufficiently strong with Great Britain. I had to decide, as a question of fact and degree, where the claimant was based, worked, and, according to a multifactorial test, whether his connection to Great Britain was sufficiently strong for the Tribunal to have jurisdiction. 7.2. EqA Claims: the relevant provisions apply to seafarers only in prescribed circumstances regardless of whether the work is carried out within or outside the United Kingdom. I had to decide whether the claimant’s work was located in Great Britain and was sufficiently closely linked to it, taking into account all relevant factors; if C worked outside Great Britain and adjacent waters I had to decide whether he worked on UK registered vessels specifying a Great Britain port of choice, was a British citizen and his employment was located within Great Britain or retained a sufficiently close link with Great Britain. 7.3. Extension Order: I had to decide whether a court in England and Wales would have jurisdiction to hear such claims. I had to decide whether R was domiciled in UK, where C habitually carried out work or last did so, whether R’s place of business was situated, and whether C was domiciled, in UK.[8]Based on an over-simplification of C’s case, at this hearing I had to decide whether C worked in Great Britain or whether there was a sufficiently strong connection/close link with Great Britain.[9]Based on an over-simplification of R’s case at this hearing, that it is all about the base, or rather time and base, I had to decide whether C’s base was in Great Britain at the material time. The Facts:[10]By agreement of the parties the material period for my consideration of territorial jurisdiction is 30 October 2020 to 12 November 2021 (“the material period”).[11]C was employed by R from 17 August 1999 until the effective date of termination of his employment on 13 November 2021. He was employed as a ship’s captain on cruise ships and for a relatively brief period was a Fleet Captain which involved him visiting. and effectively inspecting (my description) various ships of the brand.[12]R: 12.1. R is a company incorporated in Bermuda, which is its principal place of business although it has an administrative office in Guernsey. 12.2. R recruits seafarers who serve on Princess Cruises (the brand) cruise ships. 12.3. R is a company within the Carnival Group of companies, being a wholly-owned subsidiary. 12.4. Carnival Corporation is incorporated in Panama and its operational headquarters is in Florida, United States of America. Carnival plc is incorporated in the United Kingdom and its operational headquarters are in Southampton. 12.5. The brand includes a number of cruise lines and at various times, but not the material period, C worked on some of those lines but principally Princess Cruise Lines which is incorporated in Bermuda; its operational headquarters is in California, United States of America; this has been the case since 2008. Since May 2019 “onboarding” arrangements have been carried out from offices in Italy by Navitrans SRL (an Italian member of Carnival Group). The crew management system, MAPS, was administered respectively from California and Naples as appropriate, using information as to officers, crew and staff, and their places of residence all of which information was provided by the officers, Crew and staff. 12.6. R maintains a presence for HR purposes in Southampton. Insofar as this affected C, this related to some training. During the lockdowns caused by the COVID pandemic and subsequently, R administered its UK furlough scheme for staff paid under the UK PAYE system from Southampton as a matter of administrative convenience; this was a time of extreme pressure on R and the group of companies such that emergency measures were taken which were extraordinary to suit extraordinary times; C chose to submit a grievance to R via Southampton and it was then dealt with from there.[13]Contracts: 13.1. C was employed under a Senior Officers Employment Agreement (SOEA) (page 75 to 88 of the agreed hearing bundle). This document, dated 2005, sets out C’s standard terms and conditions of employment. Significant clauses for our purposes include: 13.1.1. clause 3 which measures the length of any assignment on board from the date upon which C leaves “home“ to join an assigned ship until the date of “returning home after disembarkation”. 13.1.2. Clause 5 relating to secondments which specifies that any secondment in the UK for a period in excess of 30 days would require a move to a contract “as a UK employee” (indicating that this agreement did not envisage C being such). 13.1.3. Clause 6 refers indirectly to a UK pension scheme. 13.1.4. Clause 7 Travel: the provisions relate to travelling on company business “within the country of residence” . 13.1.5. Clause 9 Certification: this requires a valid ENG1 medical certificate of fitness and is an English form. 13.1.6. Clause 12 Sick Leave/Sick Pay: this clause refers to a reduction of full pay equal to Incapacity Benefit which an officer should claim from the Department of Social Security. The reference to IB and DSS are British references which are now outdated and were never updated although this agreement was referred to in subsequent assignments. 13.1.7. Clause 13 Compassionate Leave: this clause refers to a request from an officer “to be at home because of particular domestic circumstances”. 13.1.8. Clause 21 Supplemental Medical Coverage: this clause specifically provides that a scheme is only available to those who normally reside in the UK, which implies that this form of contract was used for non-UK residents also (consistent with clause 5 referred to at paragraph 13.1.2 above). 13.1.9. Clause 27 does not provide for exclusive legal jurisdiction but instead provides that the agreement shall be construed and interpreted in accordance with “English law”, a reference understood to be to the law of England and Wales. 13.2. Seafarers Employment Agreement (SEA): the parties would then enter into agreements concerning particular assignments setting out dates for embarkation and disembarkation, a guaranteed wage, and reference to assigned rank. An example is at page 102 of the joint bundle. For our purposes the significant clauses include: 13.2.1. clause 3 management position: this provides that C would receive from R statements of positions on issues, policies and procedures which C was obliged to familiarise himself with, communicate and support. These were received from California and Naples whilst C was working during the material period. 13.2.2. Clause 4 wages: C was paid in sterling (Great Britain Pounds – GBP). R would pay officers in the currency they elected to receive on the understanding that it was the currency they wished to spend. 13.2.3. Clause 5 provides for “entire agreement/severability” although clause 10 refers to the general terms and conditions of employment as set out in the SOEA (see above 13.1). 13.2.4. Clause 10 makes provision for “new entrants” which did not apply to C. 13.2.5. The SEA provides that the agreement is an international agreement between one or more foreign parties (without specification, and there were only two parties, R and C), and that the parties are bound to arbitration of any dispute in “English” courts, again accepted as a reference to the courts of England and Wales. It does not state why this is so.[14]C: 14.1. C was recruited and “onboarded” prior to the current arrangements affecting Princess cruises. He was recruited in Southampton and HR was run from there at that time. Since 2008 operational management of the claimant has been effected from California, USA, and onboarding arrangements/HR from Naples, Italy. The substantive management of C and his work has therefore been effected by US and Italian companies situated respectively in California and Naples, with some delegation in extraordinary circumstances (the pandemic and a grievance lodged by the claimant) managed in Southampton but under overall supervision from California and Naples, since 2019. 14.2. C was employed as a ship’s Captain. I apologised for not affording him his title during the hearing and he re-assured me that “Mister” was in order; I do not know whether he is entitled to use of the title now and so I have, for safety stayed with “Mr” in the heading of this judgment; obviously no disrespect is intended. He was employed to work on ships and he was not employed to work in the United Kingdom. He describes himself in his claim form in terms of place of work as being “Peripatetic”; so he was. 14.3. Throughout the material period when C worked he worked principally on vessels that were not GB registered and were not sailing in UK waters, or adjacent thereto. When C was incapacitated from work through ill health, and/or furloughed, he divided his time between living in Wales and living in Spain/Gibraltar subject to travel restrictions in those places during the Covid pandemic. Work requirements were not determinative of where he stayed at any particular time during those periods. When he was not working he was able to choose where he stayed subject to restrictions imposed by respective governments, local and national, to meet Covid restrictions. Save for complying with sickness absence policies none of the work requirements applied such as those relating to work base, such as references in the above agreements to “home“ and “residence”. C was able to, and did, provide certificates of fitness to work from a doctor based in Spain and from a doctor based in Wales. 14.4. At various times immediately before and during the material period C owned and/or rented residential accommodation in Wales, Spain and Gibraltar for use by him and his immediate family. 14.5. C is Welsh with strong family ties to the Neath/Swansea area. Throughout any given year he would spend some time in one or other of his Welsh properties. 14.6. To facilitate his most advantageous tax position, C was required to live outside the United Kingdom for a minimum of 183 days each year and by so doing he paid no UK income tax. He was ostensibly liable to such taxation but because of his absence for the required period no tax was payable according to his acquired tax code. C was liable to pay national insurance contributions if and when he worked on British registered ships and in British waters, which he generally did not. 14.7. Senior officers such as C were expected to join their cruise ships the day before departure of a cruise but were entitled to arrive the day before that at R’s expense. By this I mean that R would pay travel expenses by air from a designated home base airport to the airport nearest to the ship’s mooring and would also repatriate the senior officer to the designated home base airport at the end of each assignment on board. 14.8. In 2017 C formally notified R of a change of home address on the designated form for doing so. He notified R that his home address was a Spanish address. This facilitated both parties in respect of travelling arrangements and C was able to designate Malaga as his principal base airport for travel to and from assignments. 14.9. In consequence of the claimant’s said notification, travel arrangements and payments were made on the basis that he was resident in Spain utilising Malaga airport. His employment documentation such as wage slips and P60s showed his home address as his Spanish address. R believed that C lived in Spain, and therefore for work purposes his base was at the Spanish address that he provided to R as being his home address. 14.10. C continued to visit Wales and spent a considerable amount of time whilst on sick leave or whilst furloughed during the material at one of his Welsh properties. This was when he was not working. When preparing and submitting annual tax returns in UK he would cite a Welsh address. 14.11. Notwithstanding the above paragraph, I find on balance that C spent more of his time each year in Spain/Gibraltar than in Wales; for tax purposes he could at most (taking into account working days) have only spent 182 days in Wales and on the balance of probabilities I find that he spent fewer days there in normal working times (when not incapacitated by illness or on furlough). I noted that he did not keep his GP practice updated as regards various Welsh property addresses when seeking medical certification, indicating that he did not necessarily consider any particular Welsh address so significant that his own doctor would need to know it, and that some medical certification, albeit on a UK form, was completed by a Spanish doctor practising in Spain. I shared R’s observation that one of the factors that influenced C in utilising property in Gibraltar was that it was “more British” in character (i.e. than the location of his Spanish home) which seemed odd for someone who purported to live in Wales and who therefore had an actual British option which he said he had in fact taken. 14.12. In January 2020 owing to the Covid pandemic, Princess Cruises (a British registered vessel) went into emergency response mode and all the ships were taken out of service. Diamond Princess was severely affected by Covid and moored in Tokyo. A management team from Princess Cruises, in conjunction with Japanese authorities, managed the situation from shoreside. C was posted to Tokyo on 21 February 2020 (flying there from the Bahamas) to relieve the captain, initially at least living ashore along with the rest of the “Jump Team”. C boarded diamond Princess to support operations and on 24th of March the support crew did too. C was repatriated on 28th March 2020. This assignment was not usual but was specifically for a unique emergency situation and it did not effect a change in the usual management and other employment arrangements affecting C. This emergency assignment falls outside the material period. 14.13. C’s last assignment at sea was on the Regal Princess which he joined in Cyprus, having flown from London Heathrow to Larnaca on 14th August 2020. He disembarked on 20 November 2020, being repatriated to Gibraltar, and, owing to a combination of annual leave, sick leave and furlough, he did not work again after 20 November 2020. C’s assignment to Regal Princess was the only work assignment during the material period. Regal Princess is registered in Bermuda. It did not enter UK, or adjacent, waters during this assignment. On-boarding and repatriation arrangements, and all managerial instruction and control was from California directly or via Naples as appropriate and usual.[15]C has reserved his position with regard to any claim for breach of contract in respect of notice (as opposed to holiday pay which is pursued here) with a view to taking such proceedings in another court in England or Wales. To the best of my knowledge no such proceedings have been commenced and I do not therefore know whether a court has accepted jurisdiction for such a claim. The Law:[16]I refer to paragraph 7 above as a general statement and I endorse the respective submissions on law from the parties, save where they are not in agreement, (which was in any event principally the application of an agreed interpretation of the law); in general where there was disagreement I favoured R’s legal submission. Mr Pollitt was constructively frank about some difficulties facing his case, without making concessions.[17]ERA: S.199 ERA provides for Mariners and limits the rights where the Tribunal has jurisdiction, and to circumstances of employment on a British registered vessel with an identified port in Great Britain (S199 (7)). The application of ERA is not however excluded if those conditions are not met. Counsel agreed that the principal authority on implied territorial limits is Lawson v Serco Ltd [2006] ICR 250. It was held that there must be implied territorial limits on jurisdiction, such that there would be no protection for work outside Great Britain save in exceptional circumstances where the connection with Great Britain is sufficiently strong; for peripatetic workers “the only sensible option” would be to determine where the worker was based. This is a question of fact and degree (Ravat v Halliburton Manufacturing and Services Ltd [2010] UKSC1). I am required to decide where the claimant was based, where he ordinarily worked, examining all relevant circumstances and contractual terms. A non-exhaustive list of example factors is suggested in the authorities to assist in deciding “base” for the purposes of work. I am entreated to be more concerned about how the contract actually operated at the time in question, the material period, than the terms of the original contract; circumstances change. Base is where one’s duty begins and ends (Diggins v Condor Marine Crewing Services Ltd [2010] ICR 213). It is not solely about where an employer is based or operates or in this case where ships were registered. I consider that the relevant factors include where control is exercised from and where that was felt by the claimant and, in like manner, to whom and where there was mutuality of obligation, but specifically where that operated. In other words, applying common tests of employment, I consider it was material for me to consider where the claimant’s work was controlled and where the parties were when they owed each other mutuality of obligation.[18]EqA: part V of the act applies to work. By section 81 EqA Part V only applies to work on ships and seafarers in circumstances that are prescribed. Those circumstances are prescribed in Equality Act 2010 (Work on Ships and Hovercrafts) Regulations 2011. Regulation 2 provides that employment is located in Great Britain if the contract is entered into in Great Britain or takes effect in Great Britain; whether the legal relationship retains a sufficiently close link with Great Britain is to be determined by reference to all relevant factors including those listed. Regulation 4 governs seafarers working wholly outside Great Britain and adjacent waters and applies Part V to seafarers on UK ships so registered, if the seafarer is a British citizen (or other specified) and the legal relationship of the seafarer’s employment is located within Great Britain and retains a sufficiently close link with Great Britain.[19]I was referred to Walker v Wallem Ship Management Ltd [2020] IRLR 257 and Bathgate v Technip UK Ltd [2022] EAT 155. Where a seafarer worked outside UK or adjacent, waters, on a ship that was not registered in the UK, or a UK flagged ship where all the other conditions are not met then the tribunal has no jurisdiction. In applying the regulations what mattered was where the work was performed rather than where a claimant may be at the time of bringing a claim. What matters was a claimant’s base as a seafarer at the time of normal working, here at the material period.[20]Extension Order: section 3 Employment Tribunals Act 1996 applies. A claim for contractual damages, for sums due under the contract, may be brought to an Employment Tribunal if it is such that a court in England and Wales or Scotland would under the law for the time being in force have jurisdiction to determine such an action. In those circumstances it was submitted I needed to consider the Civil Jurisdiction and Judgments Act 1982 s.15 C; this provides for jurisdiction so long as the employer was domiciled in the United Kingdom, the employee habitually worked in the United Kingdom, or that was where the business was situated. An employer may have deemed domiciled in the United Kingdom if it has a branch or agency or establishment in UK, and the dispute in question arose from its operation. Otherwise jurisdiction could be established if a court would accept such jurisdiction under normal principles of international private law. Application of law to facts:[21]For the purposes of work, C was based in either Spain or Gibraltar at all material times but not in Wales or any other part of the United Kingdom. For these purposes I had to consider his home, residence, domicile in the context of his providing his services for payment, with that mutuality of obligation, as controlled by R. R required to know where C would be for the purposes of ensuring transport to and from assignments and it asked C to designate his home base. For these purposes base, home, residence and domicile are all addresses relevant to the proper performance of work.[22]For the purposes of this judgment “home” is not wherever the claimant hung his hat, had his heart, nor is it a matter of hiraeth (Welsh: longing for one’s family home). It is not a question of homeland or favourite place. One can have a family home and a work home that are separate. It did not matter to R where in Wales C chose to spend any of his time. It mattered to R that it had notification of a designated base, and C designated an address in Spain. He explicitly changed his work base from Wales to Spain; he did so in writing on the form designed to notify R of his home base; he never changed it back.[23]I accept that whenever C was not working he would spend some time at one or other of his addresses in Wales. When C was incapacitated from work, or not permitted to work in order to avail of the furlough scheme, he spent some time in Wales. He did not effect a formal change to his work base and did not need to as he was not working. Although he spent some of this time in Gibraltar, and maybe Spain, I accept that his preferred venue latterly was in Wales. None of this matters to R. It did not form part of the working relationship or necessary disclosure of information because there was no practical implication for work. There were practical implications attached to the designated base (Spain) and that is what matters in the relationship of employer and employee.[24]C was a peripatetic worker.[25]C’s work duties began and ended in Spain. His work throughout the material period was predominantly on vessels that were not UK registered and in waters that were not UK waters.[26]When C worked as Fleet Captain visiting numerous ships, which was outside the material period, he did not change of work base, the role was temporary and not habitual, general or usual, and he worked on vessels in a variety of jurisdictions.[27]C’s assignment to Diamond Princess was temporary and in an emergency situation that was, as is often said, unprecedented. It was not therefore habitual, general or usual. It involved working in the jurisdiction of Japan as well as on board a British registered ship but, again, C did not indicate a change of work base. The deployment was an emergency measure for a short period.[28]C could have effected a change in his work base but chose not to do so.[29]That is not to say that there was no connection with Wales or United Kingdom in general. There were connections beyond the emotional.[30]The claimant’s contractual documentation referred to interpretation according to English law (sic) and there was a similar arbitration clause. There was no exclusive jurisdiction clause and I consider that this is significant. I am unable to find that there was a particular reason for this omission, but it was omitted. The contract was written in English and, to the best of my knowledge, C is a first language English speaker (and I apologise if Welsh is his first language). At the time the SOEA was issued R operated its HR function from Southampton and C had designated an address in Wales as his home base. Both those circumstances changed over time, the former at the behest of R and the latter at the behest of C. Subsequent SEAs merely referred back to the standard terms contained in the SOEA and I do not consider that each such reference reinstated R's HR function to Southampton or C’s work base to an address in Wales. Material circumstances had changed over time.[31]With the removal of R’s HR function to Naples, management of C generally to California, and C’s volitional change of work base/home for the purposes of work, the connection with England and Wales was weakened for all purposes related to the working relationship.[32]C was paid in GBP as a matter of his convenience and he could have elected to be paid in any currency. Whilst this may be a factor to take into account with regard to the strength of a connection it was primarily a matter of domestic housekeeping. In a situation where C and his colleagues were given the right to elect whatever currency they wished at any particular time, and to vary to suit themselves, I do not consider that this is a strong link with there being a legal connection with the jurisdiction of England and Wales. Payment in GBP was not a requirement or concern of R’s.[33]C submitted tax returns to HMRC but paid no tax because he lived outside its jurisdiction for no less than 183 days per annum. This was a personal tax arrangement for his benefit and not one that affected R’s business arrangements or requirements. C was at liberty to vary this election but he both chose to subject himself to submitting a UK tax return and at the same time to remaining outside UK for the required period. Whilst there is a connection it is an odd connection; it is in fact based upon deliberate geographical distancing giving rise to nil liability. If C had worked on British registered ships and/or in British waters he may have been subject to an NIC but because he did not in the material period the charge did not arise, and any connection was therefore notional and not strong.[34]I have covered above the principal areas of argument for the connection point and base point argued by respective counsel. Because I had read the witness statements before commencement of the hearing I suggested to counsel that their respective clients had emphasised a number of points in their witness statements and perhaps these were matters that were due some consideration in terms of C’s base and connection with the jurisdiction of England and Wales. The test is multifactorial and is a question of fact and degree, as has been established in the authorities. These headings or factors have varying degrees of relevance and were not suggested by me as being exclusive, or necessarily in all cases, applicable, but just something to bear in mind in the context of the witness statements. As I raised them it seems appropriate for me to address them: 34.1. birth/nationality: this is irrelevant to the issues before me. C had a connection with Wales through birth, and whether he considers his nationality Welsh or British he enjoyed the same connection, but that has no bearing on his work. 34.2. residence/travel: I have discussed these aspects in some detail above. Based on my findings of fact and the findings above, applying the law to the facts, these factors indicate that the Tribunal does not have jurisdiction. 34.3. recruitment: the claimant was recruited in Southampton, UK. That was because at the time R’s HR function operated from there. That changed. Over time the location of recruitment dwindles in importance to the point that it no longer establishes a strong connection with a particular jurisdiction. What was significant regarding location was the operation of the HR function. Save for some training and furlough pay (and the claimant submitting a grievance to Southampton) the HR function moved to Italy and weakened that connection with England and Wales. I say more about the operation of furlough arrangements below. I do not consider in the context of HR that the provision of some training from the Southampton office is a sufficiently strong connection with England and Wales to establish jurisdiction. There are many aspects of HR and it is clear that Southampton was at best a sub- office providing limited services to employees as devolved or delegated from the Italian HR main office. That delegation was a matter of administrative convenience for R and is not a significant work connection between C and England and Wales. C chose to submit His grievance to Southampton office which may have been in the mistaken belief that this was appropriate, but in any event it would be a self-serving creation of a connection and it is one that I do not consider significant in terms of C’s work, and working arrangements between R and C. 34.4. contractual terms: the parties had the opportunity to create the strongest connection in terms of their working relationship by stating that the contractual arrangement was subject to the exclusive jurisdiction of the courts of England and Wales. R did not do so in its documentation and C did not demur. In terms of a contract written in the English language it is perhaps unsurprising that the documentation refers to English interpretation, or specifically interpretation in accordance with English law. I cannot make a finding of fact as to R’s motivation. The provision along with the provision for arbitration in England in the event of a dispute creates a connection. It is significant that it is not expressed as the strong connection that it could have been by way of an exclusive jurisdiction clause. I consider that whilst it may indicate matters relating to jurisdiction it does not outweigh consideration of work base, where duties began and ended. 34.5. currency of payment: this was a matter of C’s election which he could change at any time. It was a matter of his convenience. Some of his colleagues were paid in other currencies and I heard evidence that some changed their election at various times for various reasons. Evidence was given that R assumed payment was in the currency of the employee’s spending; there was no such contractual obligation nor was it a requirement of R that payment be made to a Bank in England and Wales or in GBP. Again, this is a connection but one of interest only to C and it is not related to the performance of work but remuneration. I do not consider this to be a strong connection with England and Wales in the circumstances, nor a connection that outweighs those that point towards the Tribunal not having jurisdiction. According to my findings currency is not even tied to C’s elected and notified base for work purposes, Spain. 34.6. tax/national insurance: I have discussed this in more detail above. 34.7. furlough: the furlough arrangements were handled in Southampton for those employees who are paid through the PAYE scheme, albeit C was entitled to and availed of income tax exemption because of his place of residence outside the jurisdiction for in excess of 183 days per annum. These arrangements were delegated to Southampton and I assume that other national schemes were administered in other nations for certain employees depending on the method of their payment. For the purposes of C not working and of R benefiting from the UK government scheme this is a connection to England and Wales. It is expressly in relation to non-work. R continued to pay C as before even though he was on furlough and he did not provide any services; R claimed UK government assistance; it was R who benefited from the UK connection. This was clearly a matter of financial significance and convenience to R. In these circumstances it is another connection but I do not consider that it outweighs the other factors, and primarily base, which militate against jurisdiction in this Tribunal. It had nothing to do with C working but everything to do with his not working. It was an exceptional circumstance as an emergency measure in unprecedented times. It cannot be considered to be a usual, general or habitual connection. 34.8. HR support: as stated above this changed over time and from 2019 was based in Italy. This is a significant factor because of the substantial involvement of the Italian office in the day-to-day management of C whilst at work, (as well as whilst off sick, and, despite its delegation, to Southampton the Italian office maintained overall responsibility during furlough). This impacted instructions to C, overall responsibility for all aspects of HR (allowing for some delegation under its overall control) and management of travel arrangements and payment. These are all fundamental to the working relationship. The connection therefore with Italy is a stronger connection in this respect than they connection with Southampton, it militates against jurisdiction in the Tribunal. 34.9. Ships’ registration/flag: C primarily worked on ships that were not registered in the UK and in the material period a ship registered in Bermuda. 34.10. Control: R’s effective control of C was exercised either directly from US or Italy, at times directly from Italy or otherwise as a conduit of instructions from US. This being the case any acknowledgement of obligation between the parties was between R based in either US or Italy and C whose designated work base was in Spain, and who, whilst at sea was generally, habitually, usually on non-UK registered ships in non-UK waters or waters adjacent to UK waters. All of this is indicative of the tribunal not having jurisdiction in this case. 34.11. Incorporation of employer: R is registered in Bermuda. This is not determinative of the question of jurisdiction. It is a factor. It is not even a major factor save to establish context. 34.12. Performance of duties: as stated repeatedly the usual practice was for C to work usually on non-UK registered ships, in non-UK waters and not adjacent to UK waters, complying with instructions and following through arrangements given or made by R through offices in Italy and US. All of this is indicative of the tribunal not having jurisdiction in this case.[35]I am, of course, conscious of the implications for the parties of my accepting or rejecting their respective cases. It is important in a democratic society that issues of discrimination and whistle-blowing, fairness in employment and due payment, are aired so that those aggrieved can prosecute their cases and those accused can defend themselves. These are issues of profound importance, and the implications here have given me cause to pause for considerable thought and careful analysis and re-analysis, reading and re-reading the parties’ submissions and the authorities relied on. This is not however a matter of judicial discretion where I have to consider reasonableness or whether to extend jurisdiction on the grounds of justice and equity. The issue is one of jurisdiction, whether the Tribunal is empowered to deal with the claims at all. I am constrained by statute, regulation and precedent. I am confident and re-assured, from what has been said by Counsel, that if I am in error then the right of appeal will be exercised appropriately.[36]For all the above reasons I find that the Tribunal does not have jurisdiction in respect of claims made under ERA or EqA nor the Extension Order, subject to a proviso in respect of the Extension order. The proviso is that C may yet establish that a court in England and Wales will accept jurisdiction for a breach of contract claim under the normal principles of international private law. I do not feel that it is appropriate for me to make a judgment at this stage and on the basis of what is before me that would presume to limit the High Court or County Court in England and Wales from accepting jurisdiction in respect of C’s claim of breach of contract in respect of notice pay. Given the hierarchy of courts I am not so empowered, but I would consider a judgment at this stage to be trespassing on another court’s territory. In the circumstances I do not decline jurisdiction in respect of the holiday pay claim which is argued as a breach of contract but would rather stay that consideration pending the High Court or County Court considering its position with regard to jurisdiction in respect of the other indicated proceedings for breach of contract. The question of whether another court would accept jurisdiction under normal principles of international private law has yet to be decided and it is not for me to say, on the basis of what is before me, whether they would or would not. I do not feel I can be so presumptuous. If jurisdiction was to be so accepted then the question for me would be answered. I would similarly consider it to be answered if jurisdiction was declined, or the claimant decided not to take action. Obviously if the parties consider that I am in error, or sitting on the fence, on this point they may either apply for me to reconsider or they can appeal. In the circumstances I will stay the breach of contract claim before the Tribunal until 31 January 2023 or earlier successful application to lift the stay, and I will direct that the parties provide an update in respect of any proceedings in the High Court or County Court for breach of contract by no later than 24 January 2023 so that the extension or lifting of the stay can be further considered; this will all be provided for in a separate order and direction.[1]By email dated 15 October 2025 the Claimant notified the Tribunal that he was withdrawing his claims of Breach of Contract in the Tribunal (the only remaining claim in this protracted litigation).[2]In doing so the Claimant requested: “the claims not be dismissed in accordance with Rule 51(a) of the Employment Tribunals Procedure Rules 2024 on the basis the Claimant intends to pursue his claims for breach of contract in the UK County or High Court or another Jurisdiction. The Tribunal is aware there remains a jurisdictional dispute between the parties and we submit therefore there is a legitimate reason for not dismissing the claims. We submit (sic) is in accordance with the Overriding Objective and in the interests of justice to not dismiss the claims.”[3]By emails dated 16 October 2025 and 22 October 2025 the Respondent opposed withdrawal and, alternatively, the request that the claims not be dismissed. The Respondent’s position was submitted in detail and has been duly considered.[4]The Employment Tribunal Procedure Rules 2024, Section 51 provides: Where a claim, or part of it, has been withdrawn under rule 50 (end of claim), the Tribunal must issue a judgment dismissing it (which means that the party advancing it may not commence a further claim against the party responding or replying to it raising the same, or substantially the same, complaint) unless—(a) the party advancing the claim has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so, or(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.[5]In this case the Claimant has unequivocally withdrawn his claims of Breach of Contract. If the withdrawal email had said no more, I would have been obliged to dismiss the claims.[6]The Claimant has however expressed, at the time of withdrawal, a wish to reserve the right to bring such a further claim in another jurisdiction.[7]I am satisfied, given the history of this litigation and the contents of the Claimant’s said email, that he has a legitimate reason for expressing that wish, his stated intention to pursue the claim in another jurisdiction, where I know that the Claimant has pleaded grounds for such a claim, there are complexities in the matter, and there are issues as regards further action in this jurisdiction. He does not speculate about the possibility of pursuing these claims or state a mere aspiration in some indefinite period of time; the Claimant has confirmed a firm intention. I have no evidence or submission before me to the effect that the Claimant is time-barred or otherwise prohibited from pursuing the claims in another jurisdiction. The onus is on the Claimant to bring his stated intention to fruition.[8]I have considered the Respondent’s representations. I appreciate their comments. If Rule 51 required a merits based analysis (beyond satisfying myself of the legitimacy of the reason for requesting that the claims not be dismissed) I would have invited the parties to provide further written submissions and suggested the option of holding a preliminary hearing by video or in person. As I say, I note the Respondent’s views on the merits of the Claimant’s request and criticism of his failing to date to bring matters to a head. I agree that parties to litigation require certainty. I consider that the current situation is sub-optimal. There are issues that could perhaps be considered further under Rule 51 (b), if the Claimant had not satisfied the requirements of Rule 51 (a). Rule 51 provides for one or other provision to apply 51 (a) “or” (b).[9]When the matter was stayed, and on each subsequent extension of the stay, I anticipated that the Claimant would indeed either pursue or withdraw these claims, and in the latter circumstances the claims would be dismissed. The delay and uncertainty is unsatisfactory, but not something that I feel I can address further without hearing from the parties and that is not required in view of my decision.[10]I am obliged to consider the Overriding Objective, and I have done so. My decision must be based on the interests of justice. In this case I have to consider those interests where the Claimant has satisfied me that Rule 51 (a) applies, and is satisfied. On that basis, it would not be in the interests of justice to dismiss these claims. I hope and trust that the parties will conclude this saga soon. Approved by