Ferry Casinos Ltd v Fewster [1993] UKEAT 408_91_1307

EAT
Ferry Casinos Ltd v Fewster
[1993] UKEAT 408_91_1307 · 1993-07-13
HIS HONOUR JUDGE HULL QC: This is an appeal by Ferry Casinos Ltd against the decision of the Industrial Tribunal sitting at Hull on 21st May 1991. By that Decision dated 11th June 1991, on a preliminary point, the Industrial Tribunal held that it had jurisdiction to entertain Miss Fewster's complaint that Ferry Casinos Ltd ("the employers") had discriminated against her on the ground of her sex. The employers are an Isle of Man company which operates casinos on board four vessels operated by North Sea Ferries. Miss Fewster was employed by them first as a croupier and then as casino manageress. Her complaint arose from the fact that she was dismissed when she became pregnant.The Industrial Tribunal found that Miss Fewster was required to work on each of the four vessels from time to time. Two of them were registered in the United Kingdom and two in Holland. A list of the vessels on which she had served was put before the Industrial Tribunal: it was not entirely accurate, but it purported to show that on 89% of her trips she had sailed on one or other of the Dutch vessels. Apparently no reason for this preponderance was suggested.The vessels plied between Hull and either Rotterdam or Zeebrugge on a regular basis; it appeared that every night they sailed at 6 p.m. from, as the case might be, Hull, Rotterdam or Zeebrugge.Miss Fewster had, of course, to be on board before the ship sailed, but was not required to work as a croupier until 8 p.m. It was explained to us by Mr West, advocate for the employers, that this was when the casino opened and gaming began; the two hours enabled the ship to sail to a point outside British territorial waters and the gaming, and Miss Fewster's involvement in it, could then lawfully begin. If it had taken place within British waters, or while in dock, it would have been unlawful, as neither Miss Fewster nor the employers were licensed to take part in such activities in England.The Industrial Tribunal made no findings of fact about the matters so explained to us by Mr West, nor did it find what (if any) duties were carried out by Miss Fewster between the time when she went on board and the opening of the casino, or after the closing of the casino, nor did it find what her duties were when she was promoted to manageress. Despite these omissions from the findings, both Mr West and Miss Rose (who appeared for Miss Fewster) asked us to continue with the appeal. We are inclined to infer that both as croupier and as manageress Miss Fewster must have had duties to carry out before the casino opened and after it closed, and that part at any rate of these duties was carried out while the vessel concerned was in British territorial waters or at the dockside in Hull. Her "contracts of employment" (which are copied at pages 16 to 23 of our papers) are silent about her exact duties but observe cryptically "You are required to perform such other duties as reasonably requested, to correspond to the general character of the position held".Section 6(2) of the Sex Discrimination Act 1975 provides:
"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

... by dismissing her"

Section 10 of the Act provides:
"(1) ... employment is to be regarded as being at an establishment in Great Britain unless the employee does [her] work wholly or mainly outside Great Britain.

(2) Subsection (1) does not apply to -

(a) employment on board a ship registered at a port of registry in Great Britain ... but such employment is to be regarded as being at an establishment in Great Britain unless the employee does [her] work wholly outside Great Britain.(3) In the case of employment on board a ship registered ... in Great Britain (except where the employee does [her] work wholly outside Great Britain ...) the ship shall ... be deemed to be the establishment"Section 82(1) of the Act provides that:
" "Great Britain" includes such of the territorial waters of the United Kingdom as are adjacent to Great Britain."
Under S.63 a complaint of discrimination which is unlawful by virtue of Part 2 of the Act (which includes S.6) may be presented to an Industrial Tribunal.Mr West submitted that Miss Fewster carried out her work outside British territorial waters. Accordingly, whether S.10(1) or 10(2) applied, her employment was not to be regarded as being at an establishment in Great Britain.Miss Rose submitted that Miss Fewster was employed on board two ships registered in Great Britain. It was true that she was also employed on board two Dutch ships, but this was nothing to the point; there was only one contract of employment. Accordingly Miss Fewster was employed at an establishment in Great Britain within S.6(2) of the Act, unless she did her work wholly outside Great Britain.The Industrial Tribunal, in addition to the findings which we have cited above, made the following further findings of fact:
"... staff must be aboard prior to sailing time as is obvious and that means that ... they are already at their place of work, if not actually working... . To say that [Miss Fewster] was not at work and only worked from 8 o'clock is to us a distinction without a meaning. This [the period from 6 - 8 p.m.] is not to be viewed as "travelling time" as was alleged before us, this is being at work; there is no option about it, you are at work once on the vessel."
The Industrial Tribunal concluded that Miss Fewster worked aboard a British registered ship, which for the purposes of the Act was an establishment in Great Britain. Her work was not wholly outside Great Britain, and therefore she was within the protection of the Act.Mr West cited to us Wood v. Cunard Line Ltd [1990] IRLR 281, where the appellant was engaged to work as an assistant mechanic on board a vessel registered in Great Britain but used solely for cruising in the Caribbean. The question was whether he was entitled to the protection of Part 5 of the Employment Protection (Consolidation) Act 1978 and that turned on whether the employment was "wholly outside Great Britain" under S.141(5) of the Act. Mr Wood was engaged in Great Britain, and travelled from Great Britain to join his ship; he was given air tickets and was paid during his trip to the Caribbean. The Court of Appeal held that the employment was "wholly outside Great Britain" because S.141(5) referred to the part of the employment which related to working on the ship.It appears to us that that case, on the different wording of the Employment Protection (Consolidation) Act 1978, is completely irrelevant to the present case, and in particular we reject the fanciful suggestion that Miss Fewster's situation between 6 p.m. and 8 p.m. could be compared with that of Mr Wood on his flight to join his ship.Mr West also cited Royale v. Globtik Management Ltd [1977] IRLR 218, in which this Tribunal considered the case of an engineer employed under a contract under which he might be posted to vessels registered in London or to a vessel registered in the Bahamas or, apparently, other foreign vessels. This Tribunal held that he was not "employed to work on board a ship registered in the United Kingdom ..." within Paragraph 9(3) of Schedule 1 to the Trade Union and Labour Relations Act 1973. Again, it appears to us that this is a case concerned with the different wording of a different statute, and is irrelevant to our considerations.Mr West also referred to Wilson v. Maynard Shipbuilding Consultants AB [1978] ICR 376 in which the Court of Appeal considered whether a management consultant who worked both in Italy and Great Britain "ordinarily worked" in Great Britain under Paragraph 9(2) of the same Schedule. Once more this appeared to us to be irrelevant to the decision of the present case. Mr West cited Haughton v. Olau Lines (UK) Ltd [1986] IRLR 465 , in which it was held that the complainant's work was mainly done outside Great Britain; this was a case of a woman working on a German ferry sailing between Sheerness and Holland and was accordingly decided under the provisions of S.10(1) of the Act of 1975; it is again, in our view, irrelevant.We accept Miss Rose's submission that this case is concluded against the Appellant by the facts found by the Industrial Tribunal which we have set out above. Miss Fewster's employment was undoubtedly (in part) employment on board ships registered in Great Britain; each of these ships is deemed to be "the establishment" under S.10(3) of the Act; it is nihil ad rem that she was also employed under the same contract on board ships registered in Holland. She did not do her work wholly outside Great Britain and accordingly under S.6(2) of the Act she was employed at an establishment in Great Britain and it was unlawful to discriminate against her by dismissing her, if that is indeed what happened.The Industrial Tribunal has, in our judgment, correctly determined the preliminary issue and must therefore now proceed to consider whether there has been unlawful discrimination against Miss Fewster.