In a landmark decision the UK Employment Appeal Tribunal ("EAT") has held that seafarers based in the UK who work on non-UK flagged vessels will be able to claim unfair dismissal in the UK where previously this would not have been possible. The EAT allowed the claimant, living in Lowestoft, who worked on a Bahamas registered vessel and was laid off (with a number of Polish seafarers) in favour of non-EU crew who were less expensive, to claim unfair dismissal against his Guernsey employer.
The right not to be dismissed unfairly is probably the most important of a bundle of UK statutory employment protection rights. More unfair dismissal claims are presented to UK employment tribunals – about 44,500 in 2006 / 2007 – than any other type of claim. The maximum compensatory award for unfair dismissal is currently £66,200 (US$ 97,923).
Whilst it would be generally unusual for a seafarer on board a non-UK flagged vessel to come within the scope of UK unfair dismissal legislation, the EAT held that such seafarers "based" in the UK can do so. This follows an earlier extension of the legislation to UK based airline pilots, even if their work was mainly outside the UK.
The present case concerned a ferry service operated between the Channel Islands, France and the UK. The seafarer (who was a British national) sailed from Portsmouth and returned to Portsmouth on a daily basis. However, the reasoning of the EAT's decision is not restricted to those facts.
Future claimants may include non-UK nationals based in the UK working on non-UK flag vessels. Alternatively, some future claimants may seek to stretch the concept of a UK "base" to include working on non-UK vessels with less frequent visits to the UK / less time spent in UK territorial waters.
For employers the judgment of the EAT underlines the importance – even in the case of non-UK flagged vessels – of having a "fair reason" for dismissal of UK based seafarers and also following what a UK tribunal would regard as fair procedures. A topical judgment in the current economic downturn.
Furthermore, employers should not assume that a choice of foreign law in the contract of employment will operate to exclude UK unfair dismissal rights. The seafarer's contract in this case was governed by Guernsey law but he was still protected because of the circumstances of his employment.
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