MR P DIGGINS v CONDOR MARINE CREWING SERVICES LIMITED [2009] UKEAT 0083_08_0202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0083_08_0202Case No Appeal No. UKEAT/0083/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P DIGGINSAPPELLANTCONDOR MARINE CREWING SERVICES LIMITEDRESPONDENT
Before
His Honour Judge BurkeDate 2 February 2009
[1]APPEARANCES For the Appellant MR CYRIL ADJEI (of Counsel) Instructed by: Messrs Mears Hobbs and Durrant Solicitors 92 High Street Gorleston Great Yarmouth NR31 6RH For the Respondent MR PHILIP MEAD (of Counsel) Instructed by: Messrs Lester Aldridge LLP Solicitors Russell House Oxford Road Bournemouth Dorset BH8 8EX SUMMARY JURISDICTIONAL POINTS: Working outside the jurisdiction UNFAIR DISMISSAL: Exclusions including worker/jurisdiction The employee was employed by the Respondents, a Guernsey corporation, as chief officer on a vessel plying between Portsmouth and the Channel Islands. He lived in Portsmouth and joined and left his vessel in Portsmouth each working day. The vessel was registered in the Bahamas. The Employment Tribunal dismissed his unfair dismissal claim on the basis that the employee could not bring himself within s199(7) of the 1996 Act. Held on the employee's appeal that:(1) the employee was not excluded from jurisdiction under s199(2)(2) he did not fall within s199(7) but(3) he did not have to bring himself within s199(7) to establish jurisdiction; he was a peripatetic employee to whom the appropriate Lawson v Serco test applied(4) applying that test the employee was plainly based in the United Kingdom; there was no need for a remission; the primary facts were clear. HIS HONOUR JUDGE BURKE QC The Issue Can a mariner who lives in the United Kingdom and works on a ship which plies daily to a foreign port from a UK port, from which he leaves and to which he returns each working day, but whose ship is not a UK registered ship, establish that the Employment Tribunal in the UK has jurisdiction to hear his unfair dismissal claim; or, because he is a mariner employed on such a ship, is the Employment Tribunal prevented from hearing such a claim? That is the issue which arises in this appeal, another appeal in the series which has followed the repeal, by section 32(3) of the Employment Relations Act 1999, of sections 196(2) and (3) of the Employments Rights Act 1996 . It is an issue which is not answered directly by the decision of the House of Lords in Lawson v Serco [2006] ICR 250 ; but it is a potentially important issue; for the factual matrix of this case is unlikely to be so individual that its resolution will not affect others in the same or similar position as that of the Appellant, Mr Diggins.[2]He appeals against the decision of the Employment Tribunal at Southampton, in the person of Employment Judge Cowling sitting alone, sent to the parties with reasons on 22 November 2007, that the Tribunal did not have jurisdiction to hear his unfair dismissal claim. The Facts[3]Mr Diggins was, from 1996, employed by Condor Marine Crewing Services Limited ("Condor") as a chief officer. Condor are based in Guernsey in the Channel Islands, which is not part of the UK for present purposes. They employ crew who work exclusively on a fleet of ferries of different types which ply between Portsmouth and the Channel Islands, between Weymouth and Poole and between the Channel Islands and St Malo. Mr Diggins lives in Lowestoft; on his working days he joined his ship in Portsmouth and, after his tour of duty to and from the Channel Islands, left the ship in Portsmouth. His ship was registered in Nassau, in the Bahamas.[4]Mr Diggins' contract of employment was expressly governed by Guernsey law; but that was immaterial; see section 204(1) of the 1996 Act.[5]Mr Diggins was dismissed by Condor with effect from 1 April 2007. He asserted and Condor denied that that dismissal was unfair. Condor took the point that the Tribunal had no jurisdiction to hear Mr Diggins' claim; and the jurisdictional issue was addressed by the Tribunal at a preliminary hearing on 15 October 2007. Mr Diggins was represented by his wife; Condor were represented, as they have been today, by Mr Philip Mead of Counsel. The Tribunal decided the issue in Condor's favour. The Statutory Provisions[6]It is necessary to set out the current statutory provisions. Section 94(1) of the 1996 Act provides as follows:- "An employee has the right not to be unfairly dismissed by his employer." However the breadth of that unrestricted provision is limited in its application in two different ways. First there are a number of statutory provisions in the 1996 Act which expressly limit that application. Section 108 of the Act excludes from the application of section 94, subject to exceptions, an employee who has not been continuously employed for not less than one year ending with the effective date of termination. Sections 199 and 200 contain specific provisions which affect mariners and police officers. Secondly, the House of Lords held in Lawson that section 94(1) does not apply to any individual who worked under a contract of employment anywhere in the world and that some territorial jurisdictional limitation has to be implied; see per Lord Hoffmann, with whom all of their Lordships agreed, at paragraph 1 of his speech. I will return to the nature of that limitation later in this judgment.[7]In Mr Diggins' case Condor rely, as they did before the Tribunal, upon section 199(7) and (8) of the 1996 Act as containing the exclusion of Mr Diggins from the right not to be unfairly dismissed and the provisions consequential upon that right contained in part X of the 1996 Act, including the right to present a complaint to an employment tribunal of unfair dismissal pursuant to section 111 of that Act. It is necessary to set out section 199 in full in its present form, after the changes wrought by the 1999 Act, as follows:- "Mariners 199.(1) Sections 1 to 7, Part II and sections 86 to 91 do not apply to a person employed as a seaman in a ship registered in the United Kingdom under a crew agreement the provisions and form of which are of a kind approved by the Secretary of State.(2) Sections 8 to 10, Part III, sections 44, 45, 47, [47C, [47E,] 50 to 57B] and 61 to 63, [Parts VII. VIII and VIIIA], sections 92 and 93 and … Parts X to XII do not apply to employment as master, or as a member of the crew, of a fishing vessel where the employee is remunerated only by a share in the profits or gross earnings of the vessel.(3) …(4) Sections 8 to 10 and 50 to 54 and Part XII do not apply to employment as a merchant seaman.(5) In subsection (4) "employment as a merchant seaman"— (a) does not include employment in the fishing industry or employment on board a ship otherwise than by the owner, manager or charterer of that ship except employment as a radio officer, but (b) subject to that, includes— (i) employment as a master or a member of the crew of any ship, (ii) employment as a trainee undergoing training for the sea service, and (iii) employment in or about a ship in port by the owner, manager or charterer of the ship to do work of the kind ordinarily done by a merchant seaman on a ship while it is in port.(6) …(7) The provisions mentioned in subsection (8) apply to employment on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 if and only if – (a) the ship's entry in the register specifies a port in Great Britain as the port to which the vessel is to be treated as belonging; (b) under his contract of employment the person employed does not work wholly outside Great Britain; (c) the person employed is ordinarily resident in Great Britain.(8) The provisions are – (a) sections 8 to 10. (b) Parts II, III and V. (c) Part VI, apart from sections 58 to 60. [d) Parts VII, VIII and VIIIA.] (e) sections 92 and 93, and (f) Part X.]"[8]It is not in dispute that Mr Diggins was employed on board a ship; but his ship was not registered in the register maintained under section 8 of the Merchant Shipping Act 1995 , i.e. was not a UK registered ship. He was, therefore, outwith the provisions of section 199(7).[9]Both Mr Adjei, who has appeared for Mr Diggins before me, and Mr Mead agree that, in order to resolve the principal issue, which is undoubtedly one of law, it is helpful to consider the statutory provisions which have affected the application to mariners of the right not to be unfairly dismissed since the statutory inception of that right in the Industrial Relations Act 1971 .[10]Section 22(1) and (2) of the 1971 Act provided as follows:- "22.—(1) In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer; and accordingly, in any such employment, it shall be an unfair industrial practice for an employer to dismiss an employee unfairly. (2) This section applies to every employment except in so far as its application is excluded by or under any of sections 27 to 31 of this Act." The exclusions to the right set out in section 22 were, so far as relevant, to be found in section 27(2) and (3) which were in these terms:- "27. (2) Section 22 of this Act does not apply to any employment where under his contract of employment the employee ordinarily works outside Great Britain. (3) For the purposes of subsection (2) of this section a person employed to work on board a ship registered in the United Kingdom (not being a ship registered at a port outside Great Britain) shall, unless— ( a ) the employment is wholly outside Great Britain, or ( b) he is not ordinarily resident in Great Britain, be regarded as a person who under his contract ordinarily works in Great Britain."[11]These provisions were re-enacted in identical terms by schedule 1, paragraphs 4(1) and (2) and paragraphs 9(2) and (3) of the Trade Union and Labour Relations Act 1974 .[12]These provisions of the 1974 Act were then consolidated into the Employment Protection (Consolidation) Act 1978 ; the exclusions are to be found, with irrelevant changes of words, at sections 141(1) and (5) of the 1978 Act.[13]Those provisions were, in their turn, repealed and replaced by the Employment Rights Act 1996 . The right not to be unfairly dismissed has, since 1996, been found in section 94(1) of that Act, which I have set out at paragraph 6 above. The provisions set out in sections 141(1) and (5) of the 1978 Act were, from 1996, to be found in sections 196(1) and (5) of the 1996 Act.[14]Section 196 of the 1996 Act, so far as relevant for present purposes, was in these terms:- "Excluded classes of employment Employment outside Great Britain 196. (2) The provisions to which this subsection applies do not apply to employment where under the employee's contract of employment he ordinarily works outside Great Britain. … (5) For the purposes of subsections (2) and (4), a person employed to work on board a ship registered in the United Kingdom shall be regarded as a person who under his contract ordinarily works in Great Britain unless—(a) the ship is registered at a port outside Great Britain,(b) the employment is wholly outside Great Britain, or(c) the person is not ordinarily resident in Great Britain. Section 199 of the 1996 Act originally provided as follows:
"Mariners 199. (1) Sections 1 to 7, Part II and sections 86 to 91 do not apply to a person employed as a seaman in a ship registered in the United Kingdom under a crew agreement the provisions and form of which are of a kind approved by the Secretary of State. (2) Sections 8 to 10, Part III, sections 44, 45, 47, 50 to 57 and 61 to 63, Parts VII and VIII, sections 92 and 93 and (subject to subsection (3)) Parts X to XII do not apply to employment as master, or as a member of the crew, of a fishing vessel where the employee is remunerated only by a share in the profits or gross earnings of the vessel. (3) Part X applies to employment such as is mentioned in subsection (2) if— (a) section 84 applies to the employee's dismissal, or (b) she is treated as dismissed by section 96, and Part XI applies to employment such as is so mentioned if the employee is treated as dismissed by section 137. (4) Sections 8 to 10 and 50 to 54 and Part XII do not apply to employment as a merchant seaman. (5) In subsection (4) "employment as a merchant seaman"— (a) does not include employment in the fishing industry or employment on board a ship otherwise than by the owner, manager or charterer of that ship except employment as a radio officer, but (b) subject to that, includes— (i) employment as a master or a member of the crew of any ship, (ii) employment as a trainee undergoing training for the sea service, and (iii) employment in or about a ship in port by the owner, manager or charterer of the ship to do work of the kind ordinarily done by a merchant seaman on a ship while it is in port. (6) Section 196(6) does not apply to an employee, and section 197(3) does not apply to a contract of employment, if the employee is— (a) employed as a master or seaman in a British ship, and (b) ordinarily resident in Great Britain."
[15]Thus, although there had from time to time been changes of detail which are not material, the position in general terms which existed from 1971 until amendments which I will shortly describe were made to the 1996 Act was that(1) an employee had the right not to be unfairly dismissed (section 94(1) of the 1996 Act);(2) that right was excluded in the case of the employee where, under his contract of employment, he ordinarily worked outside Great Britain (section 196(1));(3) a person employed to work on a UK registered ship would be regarded as a person who ordinarily worked in Great Britain unless one or more of sub-paragraphs (a) to (c) of section 196(5) applied in his case.[16]So far so good - it might be thought; however, the problems discussed in Lawson and, on Mr Adjei's submission, the difficulties faced by Mr Diggins in this case are derived from the repeal by the Employment Rights Act 1999 of section 196 in its entirety, including section 196(2), and the introduction into section 199 of new sub-sections (7) and (8) - which I have set out at paragraph 7 above. The repeal of section 196 removed the exclusion in section 199(2) from (among other rights) the right not to be unfairly dismissed of employees who, under their contract of employment, ordinarily worked outside Great Britain; and it removed sub-section (5); but the 1999 Act added sub-sections 199(7) and (8) which, it is common ground, were intended to replace section 196(5).[17]The new section 199(8) repeats, almost identically but with, for present purposes, irrelevant differences, the list of provisions set out in the old section 196(3) which did not apply by reason of sub-section (2), including the provisions in part X containing the right not to be unfairly dismissed. That list, however, no longer applies to the general exclusion which was in section 196(2), which general exclusion no longer exists; and 199(8) now lists the provisions to which sub-section 7 applies. Those who fall within sub-section 7 are those who formerly fell within section 196(5) save that(a) instead of the words "on board a ship registered in the United Kingdom" there are now the words "on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995" (which register is a register of British ships); and(b) the circumstances in which a person employed to work on a British registered ship would not fall within the specific provision for such persons set out at sub-paragraphs (a), (b) and (c) of section 196(5) are, in the new section 199(7), expressed in the opposite way as essential pre-conditions to falling within that sub-section. Subject to these changes, which do not appear to me to have any importance in this appeal, section 199(7) is the equivalent of the repealed section 196(5); but it exists in a context in which the general exclusion in section 196(2) has been repealed without replacement.[18]This appeal raises the question - what is the effect of these changes on a person in the position of Mr Diggins? The Tribunal's Decision[19]The Employment Judge, having set out the facts, which were not in dispute, and, in brief terms, the rival arguments said, at paragraph 9:
"My attention has been drawn to the specific provisions of Section 199 and in particular Section 199(7) and (8). Section 199 makes specific provision for mariners and the relevant section is Section 199(7) reads as follows:"
He then set out section 199(7) and continued:
"The Respondent concedes that provisions b) and c) apply in the Claimant's case. It is not in dispute that the ship does not appear on the British ships' register."
[20]He continued as follows:-"10. It is clear beyond doubt that Section 199(7) does not apply to a ship which is not registered under Section 8 of the Merchant Shipping Act 1995. Its provisions do not assist the Claimant, because the Claimant concedes that the vessel on which he worked was not registered as British. The first condition of application of the Sub-Section is that the ship's entry in the Central Register of British Ships specifies a port in Great Britain as its port of registry and clearly, since the ship is registered in Nassau, it is not so registered. As already indicated, the Claimant does comply with the other two requirements under Section 199(7).11. The issue for me is whether or not employment on a foreign-registered ship, which came from time to time into territorial waters, tied up at a British port and discharged passengers and freight, is to be regarded as taking place in Great Britain. I have been referred to a number of cases including Royle v Globtik Management Ltd [1977] ICR EAT.12. It is accepted that the ship on which the Claimant worked was not registered in these waters. There are special provisions for mariners. The provisions in Section 199 clearly apply in this case. I am satisfied that the ship on which the Claimant worked was not part of British territory, because it was not British registered. The Employment Tribunal does not have jurisdiction to hear the Claimant's claim." The Battle Lines[21]The kernel of each party's argument can be summarised, in each case, in one sentence. Mr Diggins' case is that, in particular, section 199(7) of the 1996 Act does not exclude the right to claim unfair dismissal in the case of those who are employed on ships which do not fall within section 199(7); the general principles established in Lawson apply to such employees; section 199(7) is a specific provision which confers such jurisdiction on employees who would otherwise not be able to establish such jurisdiction. Condor's case is that the Lawson principles do not apply to mariners, who can establish such jurisdiction only within the terms of section 199 and, in Mr Diggins' case, only if he falls within the terms of section 199(7). If Mr Adjei's arguments on behalf of Mr Diggins prevail, Mr Mead submits, mariners who would fall within the Lawson principles but are not employed on British registered ships may have the right not to be unfairly dismissed even if they do not ordinarily work in Great Britain and would therefore not have had that right before the changes wrought by the 1999 Act took effect.[22]In the Notice of Appeal, of which Mr Diggins himself is the author, various other points are taken; but Mr Adjei on his behalf disclaimed all grounds of appeal other than grounds one to three which, essentially, raise the issues to which I have referred; and I need say no more about those other points.[23]Having set out the kernel of the rival submissions, it is not necessary for me to set the submissions out in more detail, save insofar as they appear from what follows. They can be seen, if necessary, in counsel's full and helpful skeleton arguments. Discussion[24]Prior to the 1999 Act section 199, with its heading "Mariners", contained a variety of provisions which, in the case of certain mariners, disapplied various provisions of the 1996 Act, save for section 199(3) which contained a limited exception to the disapplication in section 199(2). Although Mr Mead argues that section 199 contains an exclusive code for mariners, in my judgment there is nothing in section 199, prior to the amendments wrought by the 1999 Act which affected, one way or the other, the presence or absence of a right in an employee in Mr Diggins' position not to be unfairly dismissed. Jurisdictional issues would, prior to 1999, have been resolved by the provisions of section 196. Such an employee would have had such a right and the Tribunal would have had jurisdiction to adjudicate upon an unfair dismissal claim which he presented unless he came within the exclusion provided by section 196(2) i.e. under his contract of employment he ordinarily worked outside Great Britain. If he did so work he would have been excluded by reason of section 196(2); but if he had worked on a British registered ship but ordinarily worked outside Great Britain he would, by virtue of section 196(5), have been deemed to be – "shall be regarded as" - a person who under his contract ordinarily worked in Great Britain unless one or more of the three situations in sub-section 5(a) to (c) applied.[25]In Royle v Globtik Management [1977] ICR 552 the employee was employed by a company which managed three tankers, two of which were registered in the UK; the other was not so registered. Under the contract of employment his employers had the right to transfer him between those three ships at any time. The tribunal decided that they had no jurisdiction to hear his complaint of unfair dismissal on the ground that he fell within the then equivalent, under the 1974 Act, of section 196(2); he ordinarily worked outside Great Britain. The EAT (Bristow J presiding) rejected his appeal; they said, at page 553F to 554B:- "Paragraph 9, re-enacting section 27 of the Act of 1971, specifies classes of employments excluded from the provisions of paragraph 4. By sub-paragraph (2), any employment where under his contract of employment the employee ordinarily works outside Great Britain is excluded. So sub-paragraph (2) would be apt to exclude any home based seaman working on ships based in home ports; for example, the cross-Channel ferries. Although such seamen ordinarily work inside Great Britain if they are on duty when their ship is tied up in her home port or anchored in territorial waters, they also ordinarily work at sea and when she is tied up in a foreign port, and so ordinarily work outside Great Britain as well. But the application of the sub-paragraph (2) exclusion has been restricted by the enactment of sub-paragraph (3), which provides:
"For the purposes of sub-paragraph 2 above a person employed to work on board a ship registered in the United Kingdom (not being a ship registered at a port outside Great Britain) shall, unless-( a ) the employment is wholly outside Great Britain, or ( b ) he is not ordinarily resident in Great Britain, be regarded as a person who under his contract ordinarily works in Great Britain."
So the seaman who is employed to work on a Southampton registered car ferry plying to Le Havre and who lives in Netley enjoys the right conferred by paragraph 4 of Schedule 1 to the Act of 1974. But if he is employed to work on an Oslo registered car ferry plying on the same route, he does not."[26]In Wood v Cunard Line [1990] IRLR 281 the employee worked on board a Cunard cruise liner which operated only in the area of the Caribbean and South America. In his case too the tribunal rejected his claim, on the basis that he was excluded from the right to claim unfair dismissal by the 1978 equivalent of section 196(2), because he did not ordinarily work in Great Britain; and he did not fall within the then equivalent of section 196(5) because his employment was wholly outside Great Britain. The EAT upheld the tribunal's decision, as did the Court of Appeal. In his judgment, with which Russell and Farquharson LJJ agreed, Lord Donaldson MR said, at paragraph 11, "11. It is, of course, at once apparent and not really in controversy that there was a case for making special provision with regard to British ships because they, like all ships, are regarded for many purposes as a floating part of the territory whose flags they fly, and, but for some provision, there would obviously have been very interesting arguments as to how the other subsections of s.141 applied to this mobile territory. The question is, of course, what provision has Parliament intended to make for the case of those employed on board British ships." and he went on to hold that "employment" was wholly outside Great Britain if that part of the employee's employment on board ship was wholly outside Great Britain, in these terms:
"15. But, in my judgment, that is not correct. This section has to be construed by asking oneself what is meant by the words 'the employment' in this context. I think that what is meant is that employment, namely the employment to which reference has just been made in the same sentence, where it is said: 'a person employed to work on board a ship registered in the United Kingdom'. So what one looks at is whether the employment to work on board a ship is wholly outside Great Britain. But Sir Godfray, nothing daunted, says that, even if that is right, the employment to work on board the ship began at Southampton, which was in Great Britain, and that, of course, is right. But in this context I think that the true view must be that Parliament was intending to refer to the part of his employment which relates to working on board the ship. This subsection is, after all, dealing with seamen and the exception has been introduced to deal with their special position. There is nothing special about the position of a seaman when he is travelling to join the ship. The same is equally true of somebody who is travelling to the Middle East in order to reach the site where he is to create a pipeline. I therefore think that 'the employment' means that employment, namely the employment in relation to working on board a ship, and on that view, if it is right, there can be no doubt on the facts that Mr Wood was employed wholly outside Great Britain. 16. The same view was reached by Mr Justice Bristow, albeit obiter (and, of course, not binding on us) in Royle v Globtik Management Ltd [1977] ICR at 552, where at p.555 at letter D he said this: 'In our judgment the fact that the employee spent three days on a course at Speke does not affect the fact that his "employment to work on board a ship" was an employment wholly outside Great Britain.' That is a view which I share as to the construction of the section."
[27]In The Geest Line v Wright EAT/873/93 (judgment 26 July 1994 HHJ Peppitt QC presiding) the employee worked on the respondent's vessels which plied between Barry in South Wales and the West Indies. Six weeks before he was made redundant the vessel on which he worked, having been up to then registered in the UK, was re-registered in the Bahamas (whether by coincidence or for more cynical motives the report does not say). Unlike Mr Wood, he did not work wholly outside Great Britain; so if the re-registration had not occurred he would have been saved by the then equivalent of section 196(5) from any exclusion from the right to claim unfair dismissal by section 196(2); because he was unable to rely on section 196(5) as the result of the re-registration, the issue was whether he fell within the section 196(2) exclusion, i.e. whether he ordinarily worked outside Great Britain. At pages 2G to 3B the EAT said:- "The statutory protection against unfair dismissal is contained in Part V of the Act. That protection is excluded by S.141(2) as amended:
"Where under his contract of employment the employee ordinarily works outside Great Britain … "
This was the issue before the Tribunal. Was the Respondent, on the basis of the agreed facts, excluded from protection from unfair dismissal by S.141(2) of the Act? Ironically the question only arose because on 12 th January 1993, some six weeks before the Respondent was made redundant, the M.V. Geesthaven was transferred by the Appellants to Geest Caribbean Americas Ltd and re-registered in the Bahamas. But for that re-registration the Respondent's right to complain of unfair dismissal would have been preserved by S.141(5) of the Act by which persons ordinarily resident in Great Britain employed to work on board a ship registered in the United Kingdom are deemed to be persons under their contracts ordinarily working in Great Britain unless the employment is wholly outside Great Britain." It was held that, on authority and on the proper construction of the contract of employment, the employee ordinarily worked outside Great Britain.[28]The approach taken in those three decisions supports Mr Adjei's submission, which I accept, that section 196(5) constituted a limited exception which, to those to whom it applied, took them out of the general exclusion from the right not to be unfairly dismissed of those who ordinarily worked outside Great Britain. Section 199 and its predecessors had no role in any of those decisions. The employees in those three cases did not fail because they were mariners. Section 199 and its predecessors contain no general exclusion nor have they purported to set up or contain an exclusive code as to the circumstances in which a mariner is entitled not to be unfairly dismissed or can present an unfair dismissal claim to the UK Employment Tribunal. Furthermore there is nothing in section 196(1)-(4) which suggests that those provisions do not or cannot apply to mariners. The words "mariner" or "mariners" do not appear in section 196 or indeed elsewhere in the relevant sections of the Act.[29]Mr Mead submitted that section 199(7) was a re-enactment or preservation of section 196(5); the 1996 Act being a consolidating Act, it could not be construed as creating new rights; section 196(5) had been, prior to the 1999 Act, as its predecessors had been prior to the 1996 Act, the jurisdictional or territorial provision for mariners; and section 199(7) now had the same effect. Section 196(5), he argued, defined the qualification for unfair dismissal jurisdiction when the employee worked on board a ship. There was no other route by which a mariner could bring himself within that jurisdiction. Therefore the repeal of section 196(2) had no effect upon the position of mariners; section 199(7) replaced section 196(5) and had the same effect.[30]He supported this submission by reference to a passage in Lawson in which Lord Hoffmann, in the section of his speech headed "Peripatetic Employees", said, at paragraph 28:
" As Crofts v Veta Ltd [2005] ICR 1436 shows, the concept of employment in Great Britain may not be easy to apply to peripatetic employees. The Act continues to make specific provision for one class of peripatetic worker, namely mariners, but I do not think that one can draw any inferences about what Parliament must have intended in relation to other peripatetic workers such as airline pilots, international management consultants, salesmen and so on. The solution adopted under the old "ordinarily works outside Great Britain" formula was to ask where the employee was based."
[31]I do not believe that persuasive support for Mr Mead's argument is to be found in that passage for the following reasons:(1) No mariner's case was being considered by the House of Lords; any comment about mariners was, strictly, obiter dicta - although if the House of Lords, albeit obiter , had indicated support for Mr Mead's analysis, what they said would of course be highly persuasive.(2) However, there is nothing to suggest that the position of mariners and the potential differences in terms of jurisdiction between mariners who work on UK registered ships but do not work ordinarily in Great Britain, mariners who work on non-UK registered ships who do work ordinarily in Great Britain and mariners who work on non-UK registered ships who do not work ordinarily in Great Britain was the subject of any argument or detailed consideration by their Lordships. It is noteworthy that Lord Hoffmann's speech contains no reference to section 196(5) of the 1996 Act or to section 199(7) of that Act as amended; nor is there any reference to Globtik , Wood or The Geest Line , which decisions were not cited.(3) There is, clearly, no suggestion that Lord Hoffmann was considering a submission that section 199(7) applied and or that section 196(5) had applied to all mariners, to the exclusion of any other provision. If Lord Hoffmann had intended to state that that was indeed the position, particularly when such a conclusion is not naturally to be derived from the pre- or post- 1999 Act words, he would, in my judgment, have made that clear.(4) What Lord Hoffmann actually said is, of course, correct. The 1996 Act does continue to make specific provision for persons who work on ships; and it does not make specific provision for other forms of peripatetic workers. There is, however, no basis for inferring that Lord Hoffmann intended to convey that all mariners have to fall within section 199(7) if they wish to establish a right not to be unfairly dismissed or to present a claim for unfair dismissal in the UK.[32]Mr Mead also referred me to Holis Metal Industries v GMB [2008] IRLR 187 , in which the EAT (HHJ Ansell) upheld the tribunal's decision that regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 applied to an undertaking which had been sold as a going concern to an Israeli company which immediately transferred the undertaking to Israel. The essence of the EAT's decision in that case was that regulation 3 applied to the transfer of an undertaking situated in the UK immediately before the transfer; see paragraph 41. Mr Mead relied upon paragraphs 25 to 27 which set out the argument, for the transferees, of Mr Lynch QC upon what the EAT described as the well-known presumption that UK legislation does not have extra territorial effect unless clearly provided. Lord Hoffmann in Lawson expressly referred to that presumption at paragraph 6 of his speech; but that presumption was not offended by the resolution in Lawson as to the position of peripatetic and expatriate employees; on the contrary Lord Hoffmann said at paragraph 23: "23. In my opinion the question in each case is whether section 94(1) applies to the particular case, notwithstanding its foreign elements. This is a question of the construction of section 94(1) and I believe that it is a mistake to try to formulate an ancillary rule of territorial scope, in the sense of a verbal formula such as section 196 used to provide, which must then itself be interpreted and applied." and went on to set out the principles to which I shall come. In my view Holis does not reinforce Mr Mead's submission.[33]I do not accept Mr Mead's argument that a mariner could, prior to the 1999 Act, only establish jurisdiction in the UK Employment Tribunal to consider an unfair dismissal claim if he could bring himself within the terms of section 196(5) i.e. if he was employed to work on a UK registered ship and was not excluded from the deeming effect of section 196(5) by one or more of the three sub-clauses (a) to (c) in that sub-section. A mariner or seaman or merchant seaman who did not work on a UK registered ship but also did not ordinarily work outside Great Britain would not, in my judgment, have been excluded from the right not to be unfairly dismissed by section 196(2) and would not have needed to call upon the exception to that exclusion provided by section 196(5). This is not a fanciful scenario; there has been no suggestion that a lighter plying up and down the Thames or a ferry across the Mersey cannot be registered elsewhere than in the UK; yet a crew member of such a vessel would not ordinarily work outside Great Britain. The same would apply to a ferry crossing from mainland Scotland to offshore islands or from Portsmouth or Southampton to the Isle of Wight.[34]My view is that section 196(5) provided, by a deeming provision, that a specific sub-set of employees, namely employees on a UK registered ship falling within the terms of that sub-section but who would otherwise be excluded by section 196(2) from the right not to be unfairly dismissed and to be able to present an unfair dismissal claim to the UK Employment Tribunal, should have those rights. It cannot be construed as providing that only mariners who fell within its terms could present such a claim, even if they ordinarily worked in Great Britain.[35]Having expressed my conclusion as to the effect of section 196(5), what now is the position after the repeal of section 196(2)? In my judgment the position in the case of mariners is as follows: (1) In general the principles set out by the House of Lords in Lawson apply. Recently in Hunt v United Airlines [2008] ICR 934 I attempted, at paragraph 25 of my judgment, to summarise those principles as follows:
"Lord Hoffmann, with whom the remainder of their Lordships agreed, gave important and helpful guidance as to how the jurisdictional problem should be approached. With considerable timidity but in order to achieve conciseness I have felt it preferable, rather than quoting passages from Lord Hoffmann's speech, to attempt to summarise what he said, so far as relevant for present purposes, in six propositions as follows. (1) Section 196(2) of the Employment Rights Act 1996 having been repealed, something must be found to replace it. There is no one rule or verbal formula; the answer is to be found in principles of statutory construction; see paras 15 and 23. (2) Whether section 94(1) of the 1996 Act, providing the right to claim for unfair dismissal in the United Kingdom, applies or does not apply to a particular employment relationship is a question of law, although a question involving judgment in the application of the law to the facts; but the decision of the primary fact finder is entitled to considerable respect: see paras 24 and 34. (3) Because in modern times the courts are more concerned with how a contract of employment is operated in fact than with its original terms, that question is to be judged as at the date of dismissal and not at the date when the contract of employment was made: see paras 27 and 29. (4) In a standard case the application of section 94(1) should depend upon, whether, at that time, the employee was working in Great Britain: see paras 25-27. (5) In the case of peripatetic employees, other than mariners for whom there is specific statutory provision, the most helpful test is-where was the employee based at the relevant time? See paras 29 and 30. (6) Expatriate employees, ie employees who both work and are based abroad, will not normally fall within the territorial scope of section 94(1); but they might fall within that scope if they were posted abroad by a British employer for the purposes of a business carried on in Great Britain or worked in what amounted to an extra-territorial British enclave in a foreign country."
Mr Adjei was content, for present purposes, to adopt that summary, subject of course to reservation on Mr Adjei's part as to my reference to mariners in sub-paragraph 5. Mr Mead accepted that that summary was accurate, although he expressed reservations as to its usefulness in the present context. In Hunt I too had heard no argument as to the position of mariners; and in sub-paragraph 1 of my summary I was simply adopting what Lord Hoffmann had said at paragraph 28 in his speech in Lawson . (2) A mariner falling within section 199(2) is specifically excluded from the application of part X of the Act, i.e. the unfair dismissal provisions. (3) A mariner who falls within section 199(7) is included within the application of part X of the Act even though the Lawson principles would prima facie exclude him because, as a peripatetic employee, he is not based in Great Britain, albeit he did not work wholly outside Great Britain and is ordinarily resident in Great Britain. But a mariner who is not excluded by s199(2) but does not fall within s199(7) is subject to the Lawson principles.[36]As Mr Adjei succinctly put it, so far as mariners are concerned the principles in Lawson and section 199(7) now have separate zones of application. Section 199(7) applies to those who fall within it and provides for such employees the right not to be unfairly dismissed; in all other cases the Lawson principles apply (subject to section 199(2)).[37]Mr Diggins is not excluded from the application of part X of the Act by section 199(2). In my judgment - and this is common ground - he does not fall within section 199(7). Accordingly the general principles in Lawson apply to his case; and the Tribunal erred in law in concluding that Mr Diggins was excluded from the right not to be unfairly dismissed and the right to present an unfair dismissal claim to the Tribunal by reason of section 199(7).[38]I have already given, as examples of the law as it was before the 1999 Act, the cases of a mariner employed on a Thames lighter or on a ferry crossing the Mersey. Mr Adjei put forward a better example, which is not potentially at risk from an argument that the crew of a Thames lighter or Mersey ferry are neither mariners nor seamen (although section 313 of the Merchant Shipping Act 1995 provides that "seamen" includes every person (except masters and pilots) employed or engaged in any capacity on board any ship; and ship includes every description of vessel used in navigation). Mr Adjei's example was that of a cook living in Southampton and employed on a non-UK registered ferry plying between Portsmouth and the Isle of Wight. I can see no reason, based on the provisions of the 1996 Act as amended, why such an employee should be regarded as statutorily excluded from the rights to claim unfair dismissal before the Employment Tribunal.[39]Accordingly for the reasons I have set out Mr Diggins' appeal must be allowed and the Tribunal's order dismissing his unfair dismissal claim must be set aside. Disposal[40]Mr Mead and Mr Adjei did not agree as to the correct form of disposal, should I reach the conclusion which I have set out. Mr Mead informed me that Condor do not concede that Mr Diggins was a peripatetic employee to whom the "base test" in Lawson applied and submitted that, therefore, there had to be a remission so that the full facts could be determined and the appropriate Lawson principles applied to those facts. Mr Adjei submitted that it was unarguable, on the basis on the Tribunal's findings of fact, that Mr Diggins was anything other than a peripatetic employee based in the UK.[41]In Lawson the House of Lords identified three different classes of employee for the purpose of considering the territorial application of the right not to be unfairly dismissed - as my summary of the Lawson principles demonstrates. They were(1) the standard case of employees who worked in Great Britain,(2) peripatetic employees,(3) expatriate employees. Mr Adjei, rightly does not suggest that Mr Diggins fell into the former category; and he manifestly was not an expatriate employee. He was, in my judgment, equally manifestly a peripatetic employee, just as was Mr Crofts, the Cathay Pacific pilot, whose case was heard and decided by the House of Lords along with that of Mr Lawson. As the Tribunal found at paragraph 4 of their judgment, he lived in England, joined his ship on a daily basis in Portsmouth, sailed from Portsmouth to the Channel Islands on a daily basis and returned each day to Portsmouth. To remit this case to the Employment Tribunal in order to decide whether Mr Diggins was a peripatetic employee would in my view be unnecessary and would involve disproportionate and unjustified expenditure. Although I do not have any view from the Tribunal on this issue, for the Tribunal understandably did not consider the issues which would arise if they were wrong in their conclusion as to the effect of section 199(7), the question whether there is or is not jurisdiction in the case of a peripatetic employee is a question of law (see Lawson paragraph 34) which I am in a position to decide on the basis of the facts set out by the Tribunal.[42]But do I need to remit to the Tribunal to determine, on the basis that Mr Diggins was a peripatetic employee, where he was based at the time of the dismissal? My answer to that question is that I do not need to take that course. I have referred to the Tribunal's findings at paragraph 4 of the judgment. Although Condor were based in Guernsey, the question is not where they were based but where Mr Diggins was based. Mr Croft was managed from Hong Kong (and although Lord Hoffmann does not say so, it is clear from the report below that his employers were a Hong Kong company); but Mr Croft's tours of duty began and ended in London. Similarly Mr Diggins' tours of duty started and finished in Portsmouth where he returned at the end of each duty. He lived in England, in Lowestoft. In these circumstances there is no point in remitting to the Tribunal; the primary facts are sufficiently clear; and from them I conclude that Mr Diggins was based in the UK. Conclusion[43]For these reasons the appeal is allowed and for the Tribunal's decision is substituted a decision that the Employment Tribunal does have jurisdiction to hear Mr Diggins' complaint of unfair dismissal. It is for the Tribunal now to proceed to hear that complaint on its merits.