Peripatetics Employment Article

PERIPATETICS, EXPATS AND SAILORS –
UNFAIR DISMISSAL RIGHTS IN THE ISLE OF MAN

The right of seafarers on Manx ships to bring unfair dismissal claims in the English and/or Manx Employment Tribunals has recently been discussed at the Isle of Man Shipping Association. Stephen Mann  of logo GOUGH | advocates takes this opportunity to look at this issue and the broader issue of the Manx Employment Tribunal's jurisdiction in respect of peripatetic workers (loosely meaning workers who have no fixed workplace – example, air-crew) and expatriate workers (loosely meaning workers whose fixed workplace is outside their usual country of residence).

The English courts have recently looked at the position of the mariner in Diggins v Condor Marine Crewing Services Ltd (2009) and a rough summary of the current position under English law is that :-

1.    a peripatetic worker with a "base" in England (judged on such things as his contractual terms, defined headquarters, the place where his service starts and ends, his private residence, his currency of payment, his liability to national insurance and other factors) is to be treated as "ordinarily working" in England and hence entitled to bring a claim for unfair dismissal or redundancy in the English Employment Tribunal – this has allowed Mr Diggins, a chief officer living in England and serving (and living during service) aboard a Bahamas-registered Portsmouth-Channel Islands ferry and likewise an air-crew member with a defined contractual home-base in England for his long-haul services, to bring their foreign employers (a Guernsey crewing agency and a Hong Kong airline) before the English Employment Tribunal;

2.    an expatriate worker will only be able to do so in unusual circumstances – such as where he is engaged by a British employer at a British overseas enclave or base or where perhaps he is engaged by a British employer to work abroad for the benefit of their British business (as opposed to their foreign business in the country where he works);

3.    a mariner can do so if he is ordinarily resident in Great Britain, employed on a British ship that is registered at a British port and does not under his contract wholly work outside Great Britain (a provision not assisting Mr Diggins since he served on a Bahamian ship.)

The significance of Diggins then was that it brought ship's crew into line with aircrew under English law, allowing them, where based in Great Britain, to claim as peripatetic employees rather than limiting them to the narrow rules applicable to mariners as per 3 above.  Ship's crew "based" in Great Britain and working on a service to the Isle of Man should be in the same position as Mr Diggins, irrespective of the flag of their ship.

So much for English law. Mr Diggins was "based" in England. What if he was a Manx resident or based in the Isle of Man?

Manx law now differs from English law in that Manx legislation retains express exclusions from employment rights based on geographical grounds which have been removed from English legislation. English law, perhaps struggling to apply such express exclusions in practice, has adopted a principles-based approach which, as per Serco Limited v Lawson ([2006] UKHL 3) in the House of Lords (as it was), allows English courts and Tribunals to assess their jurisdiction and which rights apply according to general principles rather than proscriptive rules – which is how they concluded Mr Diggins should be able to bring his claim.

Assessing the position under Manx law requires a construction-exercise on the specific provisions of the Employment Act 2006 and other legislation, assisted by such Manx case law as there is, and any English cases which, so far as relevant, would be taken into consideration by the Privy Council if ever required to determine the position under Manx law.

The Employment Act 2006  provides that unfair dismissal rights are not available to anyone "engaged in work wholly or mainly outside the Island" unless the worker is a "seafarer" on a Manx ship registered at a Manx port, who is ordinarily resident on the Isle of Man and who under his contract of employment does not work wholly outside the Isle of Man.  For brevity's sake I omit mention of special rules for fishermen and those being paid by profit-share and any discussion of the seaman's right to wages owed under the Merchant Shipping (Masters and Seamen) Act 1979).

These provisions are not new to Manx law and were previously in the Employment Act 1991, albeit the "seafarer" provisions now take a slightly different form. There was no real Tynwald debate as to the meaning of workers "engaged in work wholly or mainly outside the Island" in 1991 nor as to the change in wording in relation to seafarers for the 2006 Act. The seafarer provision wording was discussed in detail in 1991 and it was decided not to give unfair dismissal protection and other rights to the Manx-resident seaman serving away from the Island on a Manx vessel on the ground that if he had such rights and non-Manx seamen did not, the crewing manager for such a Manx vessel would prefer a non-Manx sailor for economic reasons. Given the absence of real Tynwald debate on the 2006 wording, it seems fair to assume the same reasoning applies.

So, considering the above, it would seem that the Manx law works as follows in relation to peripatetic workers, expatriate workers and sailors:-

A.    a peripatetic worker with a "base" in the Isle of Man (including a seafarer like Mr Diggins) might be able to bring a claim for unfair dismissal in the Employment Tribunal of the Isle of Man if the Tribunal or supervising court was willing to accept (following by analogy the reasoning in Serco and Diggins) the fact of that "base" as meaning he was "ordinarily working" in the Isle of Man and hence not "engaged in work wholly or mainly outside the Island" under the Employment Act 2006. However, given that there was no particular debate on the point in Tynwald in 1991 it might be considered more appropriate to give the words a plain and natural meaning so that if in fact he worked abroad most of the time, the claim would not be allowed. The latter point would be backed up by the economic argument mentioned above in relation to seafarers: extending valuable employment rights to Manx residents might make them less attractive to foreign employers for peripatetic work. Having said that, the Manx judiciary – like the English in Serco and Diggins – may wish to protect the Manx resident peripatetic worker against his foreign employer, where otherwise he would have no unfair dismissal rights in any jurisdiction.

B.    it seems very unlikely a Manx person working abroad as an expatriate worker for a Manx company could claim unfair dismissal in the Isle of Man since the worker would  fall squarely into the "engaged in work wholly or mainly outside the Island" exclusion.

C.    a Manx-resident seafarer on a Manx ship servicing the Island may bring an unfair dismissal claim under the "seafarers" provision but not if he is serving under a contract for service elsewhere; if he does not meet the above requirements (for example his ship is not Manx-flagged or he works away from the Island) he might, like Mr Diggins, be able to claim as a peripatetic worker if the "base" of his work is in the Isle of Man (see A) above).

It will be interesting to see how these issues would be interpreted in the Isle of Man. The question is one of extending valuable national employment rights to those without such rights, either because they work in a state that does not supply them, or because they work in no particular state (working at sea, in the air or across borders). Employers will prefer workers without such valuable rights for cost reasons. The Diggins decision just made England-based seafarers less attractive to offshore crewing agents for Bahamian vessels. It remains to be seen whether a Manx court would follow the English-route or construe the legislation in a way that would attract more international employment for Manx-based/resident workers.

Stephen Mann

Tel: +44 (0)1624 623919
Email: stephen.mann@goughco.com

Article posted: 21/12/2009