Ms L Gordon v Mr G Patten and Yacht Management Company Ltd: 4101437/2022 and 4101570/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4101437/2022, 4101570/2022Venue AberdeenHearing 4 October 2022
Between
Ms L GordonClaimantYacht Management Company LimitedRespondent
Before
Employment Judge J M HendryDate 11 November 2022
JUDGMENT
(1) In respect to the first claimant, Ms L Gordon the Tribunal finds that it has jurisdiction to deal with her claims both under the Employment Rights Act 1996 and the Equality Act 2010. E.T. Z4 (WR)(2) In respect to the second claimant, Mr G Patten, the Tribunal finds that it does not have jurisdiction to deal with the claim for unfair dismissal under the Employment Rights Act 1996 and the application to the Tribunal is dismissed.
REASONS
[1]A preliminary hearing took place by ‘‘CVP’’ on 4 October 2022 in order to consider whether or not the Employment Tribunal had jurisdiction to hear the claims made by the two claimants against the respondent company. The respondents sought strike out of the claims.[2]Prior to the hearing the parties had prepared an Agreed Statement of Facts which was lodged with the Tribunal on 3 October. Both Counsel had prepared Skeleton Arguments which were also intimated to the Tribunal. The Tribunal had the benefit of a Joint Bundle of Productions. Both sides had lodged relevant authorities.[3]The Tribunal had been advised prior to the hearing that evidence was not going to be led by either party and that they would rely on the agreed facts which had been adjusted between them and reduced to writing. However, at the start of the hearing Mr O’Carroll indicated, as a preliminary matter, that there were two matters he needed to raise. The first related to paragraph 5 of the agreed facts. That paragraph states: “The respondent does not carry out business in the UK and does not have a place of business in the UK or any berths there. Mr Patten and Ms Gordon are unable to provide any comment on this.”[4]It was with the final sentence that Mr O’Carroll took issue. In essence he queried the logic of accepting that the respondent carried out no business in the UK but the claimants being unable to comment on the matter. He could not understand how they could agree that the respondent does not carry out any business in the UK if this was their position.[5]There followed a brief discussion about this matter. Mr Arnold was appearing without his client’s presence and he was concerned thar it would be impossible for him to take instructions quickly. I suggested that as long as it was agreed that the respondent carries out no business in the UK the second sentence could not detract from that stated fact as the agents had agreed it as a fact. Mr Arnold suggested that he was comfortable with deleting the last sentence of the paragraph and leaving that matter as it stood. Mr O’Carroll was satisfied with this change.[6]The next matter that Mr O’Carroll raised related to paragraph 19. The paragraph reads: “Mr Patten commenced employment with the respondent as a second engineer in December 2012, before being promoted to chief engineer on the Vessel on 6 September 2017.”[7]It was clear, Mr O’Carroll said, from the documents in the Joint Bundle that the Vessel had not been built in 2012 and that Mr Patten had only started work and signed his contract on 1 September 2017. Mr Arnold indicated that he was prepared to accept an alteration to clarify the position to allow the hearing to proceed. The statement of facts will therefore be altered to delete December 2012 and substitute 1 September 2017.[8]The hearing was then adjourned for a short period. I had only received the Skeleton Arguments on the morning of the hearing and this allowed an opportunity to read them. When we reconvened Mr Arnold briefly took me through his Skeleton Argument. On a preliminary matter he indicated that he did not think it was appropriate for the respondent to seek a Deposit Order at this stage in the proceedings. This was accepted by Mr O’Carroll and the application withdrawn. Mr Arnold indicated that both parties appeared to agree that the claimant was a peripatetic employee and that this was, therefore, one of the categories Lord Hoffman referred to in the seminal case of Lawson v. Serco Ltd as allowing an employee recourse to the Employment Tribunal.[9]I indicated that it would be helpful if parties would take me through what they believe was the correct approach to the application of the substantial connection test to the particular facts here and which factors they felt were the most significant for their respective positions.[10]I set out the agreed facts below: Background to the respondent[1]As at today’s date, the respondent manages a fleet of six super yachts, including M/Y Alamshar (the “Vessel”).[2]The respondent is a Guernsey registered company (see Certificate of Registration on page 78).[3]The respondent does not carry out any business in the UK and does not have a place of business in the UK or any berths there. Mr Patten and Ms Gordon are unable to provide any comment on this.[4]The respondent instructs a third party to run management and payroll functions which is carried out from offices in Guernsey.[5]The respondent’s HR function is based in France. The majority of the respondent’s management, HR and administrative tasks are carried out by Andrew Glossop (“Mr Glossop”), Fleet Manager of the respondent (who is based in Spain) and Dominique Antz (“Ms Antz”) Legal Assistant of the French Delegation of the AKDN Foundation (who is based in France). Background to Ms Gordon[6]Ms Gordon commenced employment with the respondent on the Vessel on 25 March 2019 as Second Stewardess. Her employment contract dated 25 March 2019 (pages 92 – 103) states that her place of commencement of employment was Lürssen Shipyard, which is in Lemwerder, Germany (page 92) Ms Gordon did not travel from her home address in Aberdeen to the Vessel until 26 March 2019.[7]Andrew Graham, the Captain of the Vessel at that time and Chief Stewardess, Gemma Lusk, both employed by the respondent, interviewed Ms Gordon for her role via a Skype call from Germany where Ms Gordon was situated in Aberdeen (where she resides). This was followed by a phone call from the Chief Stewardess, Gemma Lusk, from Germany while Ms Gordon was still Aberdeen where she was offered a week’s trial period on the Vessel which was situated in Germany. Ms Gordon travelled to Germany to commence her role as per her contract of employment. This is also reflected in the Vessel’s official logbook (page 134). As is usual practice in the industry and in accordance with the Maritime Labour Convention (“MLC”), her expenses were paid by the respondent from her leaving her house in Aberdeen to arriving on the Vessel. After the trial, Ms Gordon returned home to Aberdeen where she was told that she had been successful in securing the role. Ms Gordon flew out again to Lemwerder, Germany on 26 March 2019 to commence her role. Full travel expenses were paid by the respondent (as is usual practice in the industry and in accordance with the MLC as set out above).[8]During Ms Gordon’s employment, her line manager was the Chief Stewardess who was also based on the Vessel.[9]Throughout Ms Gordon’s employment, she was paid salary by the respondent in Euros into a bank account in Aberdeen, Scotland (page 118). She completed tax returns to HMRC (pages 120 – 123) as obliged to do so as a Scottish resident. Payment of tax in “whichever jurisdiction they are payable” is required pursuant to her employment contract (page 96).[10]On 11 October 2021, Ms Gordon’s role of Second Stewardess was made redundant. The confirmation of the redundancy of her position took place in Barcelona, Spain, where the Vessel was located at that time (see the Vessel’s logbook on page 137). The email confirming Ms Gordon’s redundancy was followed by a letter sent to Ms Gordon from Barcelona to her home address in Aberdeen.[11]At the time of receiving the letter terminating her contract, Ms Gordon was at home in Scotland as she was signed off as unfit to work.[12]The dismissal of Ms Gordon was carried out by Mr Glossop from Spain. Ms Antz confirmed Ms Gordon’s dismissal by reason of redundancy by email.[13]Ms Gordon’s employment contract states that “This Agreement will be governed by and construed in accordance with the law of England and Wales” (page 102).[14]Furthermore, the employment contract also states that each party “agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement” (page 103).[15]Ms Gordon’s employment contract was on standard terms and she did not negotiate the jurisdiction or governing law clauses with the respondent.[16]Ms Gordon subsequently received a payment in relation to her redundancy pay which was calculated on the basis of her full weekly salary and years worked at the respondent. Background to Mr Patten[17]Mr Patten commenced employment with the respondent as Second Engineer on 1 September 2017, before being promoted to Chief Engineer on the Vessel on 6 September 2017.[18]Mr Patten signed a contract of employment dated 1 September 2017 in respect of his Chief Engineer role (pages 80 – 87).[19]Mr Patten signed his employment contract for his role of Second Engineer in the UK.[20]Mr Glossop promoted Mr Patten to his role of Chief Engineer in Spain (the role which was made redundant and to which his claim relates) and he signed his employment contract for this role outside of the UK in either Italy or Spain.[21]Mr Patten’s employment contract states that “This Agreement will be governed by and construed in accordance with English law” (page 87).[22]Furthermore, the employment contract also states “The Parties submit to the non-exclusive jurisdiction of the English Courts as regards any claim, dispute or matter arising out of or relating to this Agreement” (page 87).[23]Mr Patten’s employment contract was on standard terms and that he did not negotiate the jurisdiction or governing law clauses with the respondent.[24]During Mr Patten’s employment, his line manager was the Captain who was also based on the Vessel.[25]Throughout Mr Patten’s employment, he was paid salary by the respondent in Euros into a bank account in Jersey (page 117).[26]On 11 October 2021, Mr Patten’s role was made redundant. The confirmation of the redundancy of his position took place in Barcelona, Spain, where the Vessel was located at that time (see the Vessel’s logbook on page 137).[27]At the time of receiving the letter terminating his contract, the claimant was at home in the Republic of Ireland as he was signed off as unfit to work.[28]The email confirming Mr Patten’s redundancy was followed by a letter sent to Mr Patten from Barcelona to his home address in the Republic of Ireland.[29]The dismissal of Mr Patten was carried out by Mr Glossop from Spain. Ms Antz confirmed Mr Patten’s dismissal by reason of redundancy by email.[30]Mr Patten requested clarification over the relevant jurisdiction to deal with the dispute surrounding his termination, and was referred to his employment contract. The respondent provided a copy of his employment contract and said “as to the law and jurisdiction of your contract, a copy of this is attached so that you can pass this to your lawyers should you so wish. They should be able to determine the law and jurisdiction from the contract" (page 140).[31]Mr Patten subsequently received a payment in relation to his redundancy pay which was calculated on the basis of his full weekly salary and years worked at the respondent. M/Y Alamshar[32]The Vessel was built in 2014 in the Devonport Royal Dockyard in Plymouth, UK and was first registered in the Cayman Islands (see Certificate of Registry at page 79). In summer 2014, the Vessel’s build was completed and it was delivered to its owner at the time.[33]On 19 August 2020, the Vessel was sold to a Portuguese owner, The Ismali Imamat, (see bill of sale at pages 104 – 105). Following this on 23 September 2020, the Vessel was re-registered in Portugal (see Certificate of Registry at pages 106 – 107).[34]Legally the Captain of the Vessel is obliged to keep a logbook, which sets out the location of the Vessel by showing the date and time of departure from a particular port or harbour (the Vessel’s logbook is at pages 124 – 137).[35]It is legal requirement that this document is true and accurate and therefore the logbook is a definitive record of the Vessel’s location.[36]The logbook confirms the following:a. The Vessel was built in Plymouth, UK in 2014 and was berthed there on 8 July 2014, before leaving the UK for Guernsey on 8 July 2014 at 15:00 (page 126);b. On or around 29 September 2014, the Vessel returned to Plymouth, UK (page 127) for warranty items;c. On 5 August 2016, the Vessel left Plymouth, UK at 16:10 following the warranty refit) for Guernsey (page 127);d. From 5 August 2016 to date, the Vessel has not entered a UK port or UK waters (pages 127 – 137).[37]Below is a table which sets out the leave dates of Ms Gordon and Mr Patten whilst employed by the respondent and cross-refers this to the location of the Vessel at that time. To compile this, the parties used the respondent’s internal records of annual leave as confirmed as true and accurate by Ms Gordon and Mr Pattern (pages 88 – 91 and 108 – 113) and the Vessel’s logbook (pages 124 – 137), which sets out the location of the Vessel as explained above.[38]The respondent is not in possession of all of the annual leave records (for example, it does not have records for 2019). However, the logbook shows that the Vessel has not entered a UK port or UK waters since 5 August 2016.[39]It therefore follows that both Miss Gordon and Mr Patten commenced and ended all of their respective tours of duty in a location furth of Great Britain. As is usual practice in the industry and in accordance with the MLC, all expenses were paid by the Respondent, from the Vessel to Ms Gordon and Mr Patten’s respective home addresses (in Aberdeen and the Republic of Ireland respectively) which included airfare and taxi fare.[40]Below is the table of annual leave compared with the Vessel’s location referred to above: Lindsay Gordon Date of Annual Leave Location of the Vessel Commenced Ended At At ending commencement 1 January 2020 14 January Port Adriano, Port Adriano, 2020 Mallorca, Spain Mallorca, Spain 14 February 24 May 2020 Port Adriano, Port Adriano, 2020 Mallorca, Spain Mallorca, Spain 24 September 3 October Portimão, Portugal Portimão, 2020 2020 Portugal 4 December 29 December Port Adriano, Port Adriano, 2020 2020 Mallorca, Spain Mallorca, Spain 1 January 2021 11 January Port Adriano, Port Adriano, 2021 Mallorca, Spain Mallorca, Spain 31 January 2021 27 February Port Adriano, Port Adriano, 2021 Mallorca, Spain Mallorca, Spain 3 April 202125 April 2021 Port Adriano, Port Adriano, Mallorca, Spain Mallorca, Spain Garreth Patten Date of Annual Leave Location of the Vessel Commenced Ended At At ending commencement 1 January 2017 22 January Lürssen Shipyard, Lürssen 2017 Germany Shipyard, Germany 13 March 201727 April 2017 Lürssen Shipyard, Lürssen Germany Shipyard, Germany 17 June 201730 June 2017 A Coruña, Spain Astilleros Shipyard, Mallorca 1 August 2017 31 August Olbia, Sardinia Port Adriano, 2017 Mallorca, Spain 22 December 4 February Port Adriano, Port Adriano, 2017 2018 Mallorca, Spain Mallorca, Spain 1 January 2020 5 January Port Adriano, Port Adriano, 2020 Mallorca, Spain Mallorca, Spain 5 February 202020 May 2020 Port Adriano, Port Adriano, Mallorca, Spain Mallorca, Spain 1 August 2020 2 October Porto Cervo, Italy Portimão, 2020 Portugal 1 December 24 January Port Adriano, Port Adriano, 2020 2021 Mallorca, Spain Mallorca, Spain 14 March 202125 April 2021 Port Adriano, Port Adriano, Mallorca, Spain Mallorca, Spain 7 June 202130 June 2021 Port Adriano, Port Adriano, Mallorca, Spain Mallorca, Spain Claimant’s submissions[41]Although the authorities were not wholly clear on the matter Mr Arnold accepted that it was up to the claimants to demonstrate that the Tribunal had jurisdiction. His position was that the case of Windstar provided the Tribunal with the most helpful guidance. The claimants had to show a connection with Great Britain that must partly consist of a connection with Scotland or in Mr Patten’s case with England and Wales.[42]In his Skeleton Argument he had set out various propositions. The first was that the Tribunal did not have jurisdiction by virtue of Section 15 C(2) of the Civil Jurisdiction and Judgments Act 1982 (the ‘‘CCJA’’). That allows the employee, irrespective of the domicile of the employer, to sue in the courts ( or tribunals) ‘‘from where the employee habitually carries out the employee’s work’’ As his client worked wholly outside the UK she could not rely on this part of the Section.[43]The second proposition was that Section 15 C(5)(d) of the CCJA was engaged displacing the earlier section where it says that sections 2 and 3 do not affect the operation of any other rule of law which permits a person not domiciled in the UK to be sued in the UK. He referred to Rule 8 of the Employment Tribunal Rules specifically Rule 8(3)(d) which states that: ‘‘the Tribunal to determine the claim by virtue of a connection with Great Britain and the connection in question is at least partly a connection with Scotland’’.[44]The third proposition Counsel argued was that if Section 15 C did not apply then 15 D did. The respondent had not simply entered appearance but had entered appearance and lodged a defence to the substantive claims. Counsel then submitted as a fourth proposition that the applicable law being that of England and Wales this would cause no practical difficulty for the Tribunal here. He then addressed the territorial reach of the various claims being made.[45]The accepted test for having a connection was that referred to in both Lawson and Windstar. His position was that the claimant was a peripatetic employee and the Tribunal should apply what he referred to as the ‘base’ test.[46]Considering the background facts of this case Counsel began by submitting that the choice of law in the contracts of employment were relevant factors. In his view such a clause created a strong connection with the employment law of Great Britain. Considering the first claimant he enunciated the following factors (referencing them to the Agreed Statement of Facts): a) It was agreed that the first claimant was peripatetic. b) The first claimant resided in Aberdeen. c) Her Bank account was in Aberdeen. d) Her salary was paid by her employers to her Bank in Aberdeen. e) She accounted for HMRC tax. f) Payment of tax in ‘‘whichever jurisdiction they are payable’’ was required by the contract of employment. g) The contract of employment provided the governing law was that of England and Wales. h) The contract provided that jurisdiction was to be the courts of England and Wales (AF16). i) Redundancy was calculated on the basis of UK law. j) The claimant’s expenses were paid for her to return to Aberdeen.[47]Counsel made reference to the facts in Windstar which he suggested were similar to the present case. That case is binding authority on the Tribunal. In that case the claimant, who was British, was employed as a master of a cruise ship. The ship did not cruise in UK waters. The employing company was incorporated in Jersey and had a head office in Guernsey. The claimant lived in Kent. He would fly to the port where the ship was berthed to begin his tours of duty from either Heathrow or Gatwick. In this case the Tribunal found that his tours of duty started when he arrived at Heathrow.[48]Mr Arnold then referred to paragraphs 36 of the Windstar case in which the case of R v Pensions Regulator (2016) IRLR 199 was discussed and the reasoning approved. In that case the Judge had held that an employee’s base was the place from which he set off to work and to which he returned. In the Judgment Leggatt J described the legal history of the case. It was recorded at paragraph 37 that he “rejected the claimant’s submission that the employees’ base was the ship on which they worked. He held that the base, rather, was the place from which they set off to work and to which they returned….he had to identify a port or other fixed place in Great Britain as the seafarer’s base”. (emphasis added)[49]In Mr Arnold’s submission the claimant’s home was the ‘‘other fixed place’’ in the current case. He then took the Tribunal through the factors set out in paragraph 18 of his skeleton argument. Mr Arnold argued that the Tribunal had jurisdiction under s.15C and in the alternative 15D of the Civil Jurisdiction and of Judgments Act (CJJA). In addition, the Tribunal he argued was seized of jurisdiction by the operation of s.15D (2) because the respondents had gone much further than simply challenge jurisdiction but had set out defence on the merits of the case.[50]Specifically, in relation to unfair dismissal Mr Arnold made a number of points. He discussed the special regime that applied to seafarers. A generous approach should be taken to any decision regarding where an employee is based (Ravat). The place where a ship is registered is not determinative and a mariner may still be based in the UK even if the ship sails from non UK ports (Windstar). The starting point is not the contract but how it was operated (Lawson) and the choice of law is a relevant factor (Ravat).[51]Briefly referring to Mr Patten’s position he did not choose to raise the proceedings in Scotland. That seemed to happen automatically possibly because Ms Gordon had raised proceedings here and they were administratively put together. Mr Pattern would be able to deploy various arguments that the Tribunal in England had jurisdiction referring me to the letter from the instructing agents Slater and Gordon, Solicitors on the 6 May 2022, page 156: “a) The claim relates to a contract under which the work is or has been performed partly in England and Wales (Rule 8(2)(c)). When the Claimant first started, he joined the ship in Plymouth, England. When the Claimant had a formal interview for the role of Second Engineer, it was in Plymouth, England. The Yacht would dock in the UK and sail around the UK coast. b) Further, the tribunal has jurisdiction to determine the claim by virtue of a connection with Great Britain and the connection in question is at least partly a connection with England and Wales (Rule 8(2)(d). The Claimant’s connection with the law of Great Britain is much stronger than with the law of any other country. The Yacht travels around the Mediterranean. Although it carried the Cayman flag, it did not and does not travel there. The Claimant has no connection to Guernsey, without being able to rely on the law of Great Britain the Claimant would be lift in limbo. c) A relevant factor is that the contract’s choice of law is England, and the contract grants the courts of England jurisdiction. d) The Claimant is a peripatetic worker and his place of work is to be determined by his base. When he started he boarded the ship in Plymouth. The Claimant’s contract states if repatriated, he will be returned to London.”[52]Mr Patten’s case he submitted should be transferred to England The appropriate forum was England and Wales and give he has no connection with Scotland it should be transferred there. Counsel suggested that it was not appropriate for the Tribunal in Scotland to determine Mr Patten’s case. Respondent’s position[53]Mr O’Carroll picking up the last point made by opposing Counsel pointed out that the if the Tribunal found there was jurisdiction than that would be the point at which the issue of whether or not the case should be heard in Scotland should be determined. The jurisdiction that had to be considered was UK wide. There was either a substantial connection with the UK or not.[54]Turning to the submission that the respondent had in some way accepted the jurisdiction of the Tribunal this he suggested could not be the case. The ET3 raised the question of jurisdiction and nothing should be read into the fact that the merits of the claims were disputed. This was a ‘belt and braces’ approach properly adopted in case the plea to jurisdiction fell away.[55]Mr O’Carroll submitted that there was a fundamental misunderstanding when considering an employee’s base. He accepted that in Windstar that when departing on a tour of duty it was accepted that a port was the employee’s base. This did not mean that a person’s home address could be a base. That was an artificial way of considering the matter. Common sense dictated that a base was an office or headquarters or the like. In this case the vessel and the respondents had no connection to the UK. The vessel was not registered here. It did not sail from the UK or in UK waters.[56]Counsel pointed to the ASF (para 5) None of the acts complained of in either of the originating applications are alleged to have taken place in Great Britain (ASF, para 38(d)). Neither claim relates to a contract under which work is or has been partly performed in Great Britain, whether in Scotland or England and Wales in relation to the Vessel (ASF, para 38(d)). Accordingly, the bases for jurisdiction in rule 8(3) paragraphs (a) – (c) should be immediately discounted.[57]The respondent’s position was that the starting point in relation to jurisdiction is the four categories of worker expounded by Lord Hoffman in Lawson v Serco [2006] ICR 250 which serve as guiding principles. Both claimants fit within the category of “peripatetic employee.” Lord Hoffman had adopted the guidance provided by Lord Denning in Todd v British Midland Airways [1978] ICR 959: “A man's base is the place where he should be regarded as ordinarily working, even though he may spend days, weeks or months working overseas. I would only make this suggestion. I do not think that the terms of the contract help much in these cases. As a rule, there is no term in the contract about exactly where he is to work. You have to go by the conduct of the parties and the way they have been operating the contract. You have to find at the material time where the man is based." (emphasis added)[58]In the case Ravisy v Simmons & Simmons UKEAT/0085/18/00 the EAT noted in relation to the Lawson category where the claimant worked outside Great Britain: “the presumption is against jurisdiction unless there is something which puts the case in an exceptional category, such that the employment has much stronger connections both with Great Britain and British employment law than with any other system of law. That is a question of fact and degree.” (emphasis added)[59]In Ravat v Halliburton [2012] ICR 389. At paragraph 27 Lord Hope stated the following: “Those factors [whether the relationship was “rooted and forged in Great Britain will never be unimportant, but I agree that the starting point needs to be more precisely identified. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule.” And later at paragraph 29: “The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.”[60]Mr O’Carroll’s position was that the Employment Tribunal should not simply to list the number of factors pointing towards and away from a connection between the claimant and Great Britain, but rather to look at the quality of those connections in order to ascertain whether the relationship between the two is sufficiently strong. The factors which tend to point most strongly towards or away from such a connection is where the employment was actually carried out. In other words, he submitted, where the employee began and end his or her tour of duty.[61]The respondents Counsel then discussed the various factors which should be properly considered. He accepted that the Ms Gordon had her home in Aberdeen. Mr Patten however lived in Eire. Both claimants were paid in Euros. MS Gordon was paid to an account in Aberdeen and Mr Patten to one in Jersey. Referring to the case of Olsen v Gearbulk Services Ltd UKEAT/0345/14 the Tribunal should consider the tax position particularly national insurance. Ms Gordon has provided HMRC receipts regarding tax [JB p120 – 123]. However, it is not clear what arrangements were made regarding NI contributions. No details have been provided regarding Mr Patten’s tax arrangements or whether he paid tax/NI at all, given that payments were made to an account in Jersey, a tax haven.[62]The respondent’s payroll was dealt with by a third party from Guernsey. The respondent’s HR function is based in France. The majority of the Respondent’s management, HR and administrative tasks are carried out by Andrew Glossop Fleet Manager of the Respondent (who is based in Spain) and Dominique Antz Legal Assistant of the French Delegation of the AKDN Foundation (who is based in France). Ms Gordon’s role was directed by her line manager, the Chief Stewardess, who was based on the Vessel (ASF para 10). Mr Patten’s line manager was the Captain who was based on the Vessel (ASF para 26). Ms Gordon was recruited by interview in German (ASF 8) and Mr Patten recruited initially in 2012 via a company called PB Yachts as Second Engineer and was then provided with a suspensive contract to work aboard the Vessel in his promoted capacity as Chief Engineer from the date of construction of the Vessel in 2014. Mr Patten signed his contract as Second Engineer in the UK. He signed his contract as Chief Engineer [bundle pages 80-87] (the role he was dismissed from) either in Italy or in Spain (ASF paras 21 and 22).[63]Counsel then considered the choice of law clauses. He did not believe much weight should be placed on these. For both claimants, the choice of law clause was a bare statement, not the subject of negotiation (ASF paras 17 and 25). The redundancy pay to each claimant was calculated on the basis of full weekly salary and years worked (ASF paras 18 and 33). It was not subject to the statutory cap applicable to a week’s wage and was thus considerably more generous than would have been provided under the Employment Rights Act 1996 ERA.[64]There was Mr O’Carroll submitted no requirement to find that the claimant’s must have a local remedy or a remedy somewhere as Mr Arnold had suggested. (see Rajabov v FCO [2022] EAT 112 ) He referred to the case of Powell v OMV Exploration & Production Ltd UKEAT/0131/13. In that case the claimant Mr Powell was employed by company incorporated in the Isle of Man managed and operated from Austria. Worked in Dubai for three weeks in four, with the fourth week spent as "rest time" at his UK home. He had supervisory responsibilities for two employees based in GB. He paid tax and NI to the UK authorities as well as, to an extent, those abroad. It was held that there was no jurisdiction as Mr Powell was an "international commuter", in the same way as Mr Ravat. Further, Regulation 4 Equality Act (Work on Ships and Hovercraft) Regulations 2011, operates to exclude Part 5 EqA (ss 39 to 83) from seafarers working wholly outside GB waters unless the ship’s entry in the register maintained under section 8 of the Merchant Shipping Act 1995 specifies a port in Great Britain as the ship's port of choice (which the Vessel does not – ASF pages 79 and 106-7).[65]It is therefore the clear intention of Parliament to exclude certain rights under the EqA to seafarers unless the conditions set in that Regulation are met. Such seafarers would therefore be without a remedy under Part 5 EqA in GB Employment Tribunals. The absence of remedy without a finding of jurisdiction in a GB Employment Tribunal is further weakened as a ground for asserting that jurisdiction should be afforded in the absence of compliance with Lawson v Serco principles.[66]The position is not altered by reason of the fact that both claimants were at the time of their dismissal for reasons of redundancy at their respective residential addresses (ASF paras 13 and 29). The tests identified in the paragraph below all lead to the same conclusion: that neither claimant’s employment had a sufficiently strong connection with GB to afford them jurisdiction here.[67]The correct approach, he suggested, would be to identify the category in Lawson v Serco which the employee falls into. It may then be helpful to consider why the employee was absent from work and the length of absence before dismissal. (2) Where the employee was ordinarily working or based, and for how long, before the absence. (3) Where the employee would have been working at dismissal, if they had not been absent from work. (4) Whether there was an active employment relationship between the date of absence and the date of dismissal. (5) Where the contract was operated from at the time of dismissal and (6) Whether the tribunal would have had territorial jurisdiction as at the date on which the individual became absent from work: (YKK Europe v Heneghan [2010] ICR 611).[68]Counsel did not believe that the claimant was assisted by EU-derived rights. Mr Patten has a claim solely based on unfair dismissal. Ms Gordon had, in addition to her unfair and automatic unfair dismissal claims, claims for disability discrimination, associated victimisation and detriment associated with whistle blowing. Counsel referred to the case of Bleuse v MBT Transport Ltd [2008] ICR 488, in which the claims for unfair dismissal and unlawful deduction of wages were dismissed on the basis that the claimant did not have his base here and therefore failed to demonstrate the necessary connection with that jurisdiction as required by the Serco principles. The claim under the Working Time Regulations was allowed on the basis of the UK’s obligation to interpret legislation so as to give effect to EU-derived rights. Standing the terms of Schedule 1(3) of the EUWA 2018 his position was that it would be unlikely that Bleuse would be decided in the same way today. The interpretive and enforcement obligations on the UK are general principles of EU law which are struck at by the 2018 legislation. Mr O’Carroll also referred to the case of R (Hottack) v Foreign Secretary 2016 ICR 975, in which it was held that where a work-related discrimination claim could not be brought under Part 5 of the Equality Act for jurisdiction reasons in terms of Serco principles, then it could not be brought at all.[69]In relation to the whistle blowing claim, the test for territorial jurisdiction in respect of a claim for automatically unfair dismissal and detriment arising from a protected disclosure is the test that applies in relation to claims for unfair dismissal, namely whether there was a sufficiently close connection with the UK and British employment law (Smania v Standard Chartered Bank [2015] ICR 436).[70]Finally, he submitted that Ravat makes clear that where the claimants actually carried out their duties is the decisive factor. In each case, both claimant’s duties were carried out on board the Vessel in locations in Germany or the Mediterranean. The fact that their flights to their home addresses were paid for was irrelevant to the base where each of the claimants worked. None of the acts complained of occurred within the jurisdiction of the Employment Tribunals in Great Britain. The decisions to dismiss each claimant for reasons of redundancy were taken in Spain (ASF 18 and 33). As a matter of logic, the other acts complained of specifically by Ms Gordon are alleged to have occurred on the Vessel, which as the log book confirms and is agreed as accurate, never entered a UK port or UK waters at any time during her employment with the respondent.[71]Although the place of employment is not an absolute rule (although decisive), the vast preponderance of the other factors as set out above and in the respective ET3 forms demonstrates that in addition to the place of work factor, when other relevant factors set out above are taken into account, neither claimant reaches the level of sufficiently strong connection with GB necessary in order to engage the jurisdiction of GB Tribunals.[72]Of the two claimants, the connection of Mr Patten with Great Britain was he said even more slender, given that he resides in the Republic of Ireland, a country outwith Great Britain and British waters. It is therefore submitted that his claim ought to be struck out for want of jurisdiction at this stage rather than accede to a request to have his claim transferred to the Central Employment Tribunal. Its lack of merit can be determined as a preliminary matter at this stage before this Tribunal, along with that of Ms Gordon, without the need for further unnecessary procedure in Central London with the time and expense which that would entail. Discussion and Decision Application for Transfer[73]The first issue is a preliminary matter as to whether or not Mr Patten’s case should be transferred to England and Wales to be dealt with there. His position being that this would be both his preference and the appropriate jurisdiction to deal with his case. I had noted that Mr Patten’s agents had sought permission of the President to transfer the case but that this was refused. I cannot order that the case is transferred that would be a cross border transfer under Rule 99 which power can only be engaged by the President or Vice President. In any event the jurisdiction that is being sought is that of the UK Employment Tribunal system rather than the most appropriate forum for determination of the dispute as between the two regions that make up that system. The Tribunal in Scotland is part of a unified Tribunal system. It also seems wholly in accordance with the overriding objective to deal concurrently with both cases. I must reject the application to seek Mr Patten’s cases’ transfer to England and Wales: anything he can say there he can say here. In passing I am conscious of the decision in D Curran and Sons v Beswinski EAT0476/09, which although Northern Ireland case supports the decision that if there is no jurisdiction here then the course of action is to dismiss and not transfer. The reasoning in that case appears applicable here. Prorogation of Jurisdiction[74]The next matter which can be conveniently dealt with before considering jurisdiction more widely was the submission by Mr Arnold that the respondents had acceded to the jurisdiction of the Tribunal (engaging Rule 15 D(2) of the Civil Jurisdiction and Judgments Act 1982) because they had lodged a substantive defence to the claims and not restricted themselves to their plea that the Tribunal had no jurisdiction. There has been no explicit acceptance of jurisdiction. Indeed the opposite is true. Rule 15D(3) disapplies Rule 15D(2) ‘‘Where (a) appearance was entered to contest jurisdiction’’ The fact that the plea to jurisdiction was taken at the earliest opportunity along with a defence on the merits does not lend itself to a finding that the respondents have tacitly accepted jurisdiction. They did not for example lodge a counter claim or delay in making the plea. As Mr O’Carroll observed it was prudent, if the plea were to be rejected, for them to set down their position on the merits at this stage. The circumstances here do not in my view allow me to infer that the respondents have accepted the jurisdiction of the Tribunal in relation to these matters. Jurisdiction[75]The facts on which I am asked to proceed and which are relied on have been agreed. They are not as complete as they could be. It would have been helpful to have known if the claimants were paid a salary or day rate and from what time they were paid. Was it for example when the joined the vessel? Did they fly? Was this arranged by the respondent? Did the respondents arrange their return home? The claimant’s tax position is also not completely clear to me from Agree Fact 9. If the case proceeds to an appeal no doubt these details can be agreed. There is no criticism of either Counsel but they appeared without their clients and were unable to take instructions on such matters which to be fair I did not raise during the hearing.[76]Both claimants make claims of unfair dismissal. The right to make a claim for unfair dismissal comes from Section 94(1) of the Employment Rights Act 1996 (ERA). In the past the territorial scope was limited by Section 196(3) of the ERA, now repealed, which excluded those who worked ordinarily outside the UK. There appears to be no obvious alternative jurisdiction that might hold sway but that does not mean that UK jurisdiction is necessarily appropriate.[77]The question of the territorial reach of the statute and the right to make a claim for unfair dismissal was considered by the House of Lords in the case of Serco. The respondents here accept that both claimants both fall into the category of being peripatetic. That is one of the two categories of employees identified by Lord Hoffman in Serco that might, depending on the facts, be able to claim jurisdiction if there was a strong enough connection with the UK.[78]In that case Lord Hoffman indicated that when approaching this matter the courts should about the way in which the contract operated rather than the contract terms themselves. Referring to Lord Denning’s Judgment in Todd v Midland Airways Ltd (1978) IRLR 370 as providing helpful guidance he focussed on the base from which the employees left to carry out work abroad and distinguished this from the category of expatriate employees who are based permanently abroad.[79]Mr Arnold referred me to the case of Windstar as being the analogous with the present circumstances. That case, a decision of the Employment Appeal Tribunal, involved a master of a cruise ship. The ship spent it’s time in the Caribbean. The claimant lived in England and would fly to join the vessel. The ship was owned by a company based in the USA and operated by a company incorporated in Jersey with a head office in Guernsey. It was found that he started and ended his tours of duty in the UK. It was the base of the claimant that was crucial not the base of the employer. There were additional factors such as personnel services were provided by a UK company who recruited the claimant and conducted the disciplinary proceedings. The employment contract was governed by English law and the claimant ’s salary paid in the UK. The EAT considered that none of these elements were determinative and the relevant question was where the employee was based and the factors considered assisted in determining the base. The choice of law was held to be a relevant factor. Ms Gordon[80]There are a number of elements in the first claimant’s relationship with the respondent that were canvassed. Mr O’Carroll pointed out that although the claimant was paid here in the UK she was paid in Euros. Some deduction was made to HMRC for tax but not for National Insurance contributions. I accept that this to an extent weakens that particular connection but it remains a factor. Similarly, although Mr O’Carroll suggested that the choice of law should effectively be disregarded I do not agree. This is not a situation where the choice of law clearly disadvantages a party as in the situation where a jurisdiction is chosen that would present difficulties for parties effectively litigating there. The choice of the law which governs where the claimant actually lives must have been some comfort for her in entering the contract and some recognition by the respondent that any dispute would be litigated here. For this discussion I disregard the existence of Scots Law as if her claim proceeds the law of unfair dismissal is common to both jurisdictions. The choice of law was also held to be a relevant factor in Windstar.[81]The first claimant has other connections with the UK such as having her bank account here. The claimant’s Counsel also points to the claimant’s redundancy payment being calculated on the basis of UK law. I note that the statutory cap was not used but nevertheless the redundancy formula we are familiar with from the ERA seems to have been used with the calculation based on weekly salary and service rather than some other means of calculation.[82]There was argument around whether the first claimant’s address in the UK could properly be her base for the purposes of this test. Mr Arnold relied on both Windstar and the reasoning in Serco. He pointed to the judgment in R v Pensions Regulator and in this case he submitted that the ‘‘other fixed place was the claimant’s home address. I am bound to accept that the authorities suggest that the claimant’s home address can be her base. While I have some sympathy with Mr O’Carroll’s position that a home address can or should be regarded as an employee’s base I am bound by the decisions in Windstar and Serco. In the particular circumstances of this case I find that the first claimant’s base is within the UK and that her duty began and ended in the UK and that she is entitled to bring proceedings for unfair dismissal here.[83]Mr Arnold’s submission was that if I was to find that the claimant was entitled to bring a claim for unfair dismissal then her other claims under the Employment Rights Act (Sections 44, 47B, 103A) should also proceed. The claims for discrimination under the Equality Act (Sections 13, 15 and 27) should be treated as having the same territorial reach relying on the obiter remarks in the case Bates van Winkelhof v Clyde and Co LLP (2012) IRLR.[84]The Equality Act is silent as to jurisdiction. In Bates van Winkelhof the question of jurisdiction for Equality Act claims was touched on. It is worth repeating what was said in that Judgment at paragraphs 101 and 102 by Lord Justice Ellias: “101. In the circumstances it is not necessary for me to engage with two alternative submissions of Mr Linden. The first was that as Lord Hoffmann himself pointed out in Serco, it does not necessarily follow that all the rights under the 1996 Act should have the same territorial scope, although uniformity of application is desirable in the interests of simplicity. Mr Linden submitted that it is very much in the public interest that disclosure of wrong doing should be encouraged and whistle blowers should be protected. Similarly, with respect to alleged unlawful sex discrimination. This, he submits, should if anything mean that the territorial ambit should be wider for these claims than for unfair dismissal. Although I can see some attraction in that argument, it is difficult to identify in practical terms what looser test could be adopted, unless perhaps the principle adopted was that it would suffice for the employer to be in Great Britain irrespective of where the employee works, and that might be a step too far. In any event it is an argument for another day. 102. The other submission related solely to the discrimination claims. It was submitted that the Tribunal had jurisdiction to hear these EU derived employment claims by analogy with the approach of the EAT in Bleuse v MBT Transport Limited [2008] ICR 488 which was followed by the Court of Appeal in the Wallis case. The submission arguably involves an extension of the Bleuse principle and we heard virtually no argument on this difficult point. In view of my conclusion on the principal argument, it is not necessary to deal with it and in the circumstances I do not think that it would be sensible to do so.”[85]The remarks made do not give whole hearted support for Mr Arnolds propositions. However a starting point is perhaps the comment of Lord Hope in Ravat of the courts role ( at paragraph 26 ) ‘‘It is to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles’’ It would appear perverse for Parliament to have extended the jurisdiction for the protection unfair dismissal rights, by removing the territorial requirement, and not to have envisaged that important corollary rights such as those contained in Sections 44 ( Health and Safety detriment) and 47 (Protected Disclosure). There appears to be no good reason why these particular claims under the Employment Rights Act should be treated differently from unfair dismissal and good reasons for doing so. This would provide some uniformity for claims intimately related to the employment relationship, designed to protect employees as being in the public interest to do so.[86]Turning to the Equality Act claims although I accept that the claims here that we are considering arise from EU derived rights and that following EUWAS 2018 the claimant cannot rely on the interpretative and enforcement principles of EU law I do accept that she requires that assistance. the case of Hottak v Clyde and Co (2016) ICR 436 strongly suggest that the same test as that for unfair dismissal should apply to discrimination claims. The first claimant is, however, seeking to vindicate her rights under a UK statute. Parliament has left the extent of that jurisdiction to the Tribunal and Courts. I can see no reason why the base test which we have discussed above should not equally apply. This would offer a consistent approach. It would be difficult to logically entertain the idea that Parliament expects employees to be protected from unfair dismissal but that their other important rights under the Equality Act are unenforceable by a peripatetic employee. I therefore conclude that the Tribunal had jurisdiction to entertain these particular claims under the Equality Act. Mr Patten[87]The second claimant makes a claim for unfair dismissal only. It is accepted that the nature of his work is peripatetic. The principal difference between the first and second claimant is that he resides in Eire. Mr Arnold’s submission was to the effect that while on the base test Mr Patten might struggle there were facts that indicated a substantial connection with the UK specifically England and Wales as he started work sailing from Plymouth, on one occasion, and was interviewed for the post there. The choice of law was the UK and his connection here is stronger that with elsewhere. The matter is one of fact and degree (Ravisy v Simmons & Simmons UKEAT/0085/18/00. It is relevant from him to point to the choice of law in his contract. It was accepted that there was no negotiation of the clause but that it was ‘standard’ Nevertheless, as mention in relation to the first claimant it must have given the second claimant some comfort that he was subject to the law of England and Wales and not some far off and less familiar country. It is significant that he was paid in Euros and no deductions for UK tax made. The redundancy payment used the same formula as was applied to the first claimant.[88]While I have some sympathy with the second claimant and the position he is in, his ‘work’ in the UK was fleeting consisting of two separate occasions, an interview in England and beginning a cruise there. The other elements even when viewed together do not provide a substantial connection with the UK in my judgment. The essential facts are that he worked on a ship that does not sail from UK ports or in UK waters and for employers who paid him in Euros and who are not domiciled here. In relation to the second claimant I conclude that the Tribunal has no jurisdiction to entertain his claim.