Diggins v Condor Marine
The law says that employees who ordinarily work outside Great Britain cannot claim unfair dismissal unless they work on a ship in certain specified circumstances. In Diggins v Condor Marine, the Court of Appeal has said that an employee working on a ship that was not registered in a British port could still claim unfair dismissal as he was based in the UK.
Basic facts
Mr Diggins was employed by a subsidiary company of Condor Marine Crewing Services Limited, registered in Guernsey. He worked as chief officer on a boat registered in the Bahamas and which sailed every day between Portsmouth and the Channel Islands, returning to Portsmouth every evening. His permanent home was in the UK but he lived aboard the boat when working his two-weekly duty rosters.
He was dismissed with effect from 1 April 2007 and claimed unfair dismissal. The issue then arose as to where Mr Duggins was based and whether the tribunal had jurisdiction to hear his claim.
Relevant law
Section 199(7) of the Employment Rights Act (ERA) gives mariners on UK registered ships the right to claim unfair dismissal but only if their ship is registered in Great Britain and they are ordinarily resident in Great Britain.
Section 199(2) ERA says that the master and crew of a profit-sharing vessel are excluded from claiming unfair dismissal.
In the 2006 case of Lawson v Serco, the House of Lords identified three categories of employees entitled to claim unfair dismissal:
• those working in Great Britain
• peripatetic employees based in Great Britain, and
• some expatriate employees working abroad for a British employer
Tribunal and EAT decisions
The tribunal decided that Mr Diggins could not rely on section 199(7) and that therefore it had no jurisdiction to hear his claim of unfair dismissal.
The EAT, however, disagreed It said that, in general, the principles set out by the House of Lords in Serco should be applied in cases relating to mariners, with the exception of those covered by sections 199(2) and 199(7) ERA.
Given the facts, the EAT said that Mr Diggins could not rely on section199(7) as the vessel he worked on was not registered in Great Britain. That meant that the general principles in Serco applied.
On that basis it said that “the question is not where [Condor] were based but where Mr Diggins was based”. As he started and finished in Portsmouth every day and lived in the UK, he was a peripatetic employee based in Great Britain at the time of dismissal and could claim unfair dismissal.
Decision of Court of Appeal
Relying on Serco, the Court of Appeal agreed with the EAT that “the principles to be applied for determining whether somebody fell within the jurisdiction or not was, for peripatetic employees, whether they had a base in the United Kingdom”. The question, therefore was not “where the employer is based, but where the employee is based”.
It concluded that “if one asks where this employee's base is, there can only be one sensible answer: it is where his duty begins and where it ends. The company may have been based in Guernsey but Mr Diggins had no real connection with that place and he had even less with the Bahamas, where the ship is registered. I do not accept that the considerations of where the company operates or where the ship is registered are likely to have any significant influence on the question where a particular employee was based... The question must be asked and answered as a practical matter ... On that approach, it seems to me that the base was in Great Britain”.