Automatic enrolment: British domiciled seafarers
11 January 2016
Do British seafarers employed on ships operating wholly or principally outside of UK territorial waters “ordinarily work in Great Britain under their contracts” for the purposes of s.1 Pensions Act 2008?
In R (Fleet Maritime Services (Bermuda) Limited) v The Pensions Regulator the High Court (Leggatt J) determined that they do if they work from a ‘base’ in Britain, but that this will not be the case if they do not habitually begin and end their tours of duty from a British port.
The Regulator issued the Bermuda-incorporated Claimant with a compliance notice for failing to auto-enrol British-domiciled seafarers regularly working aboard its cruise ships. The Claimant brought a judicial review because its ships operated principally outside of British territorial waters.
The Court concluded that the Lawson v Serco approach to determining a peripatetic worker's ‘base’ for the purposes of unfair dismissal jurisdiction was also applicable to the 2008 Act. The Court further determined that, irrespective of duration aboard, seafarers are, under the 2008 Act, based at the port from which their tours of duty generally begin and end not aboard the ship itself or under its flag state. For the Act to apply some degree of regularity is also required, a single tour cannot establish a base.
Days spent traveling between Britain and foreign ports of embarkation, whilst remunerated, were also properly treated as commuting, not work. As such the Regulator had erred in finding a duty in relation to those of the Claimant’s employees whose tours did not habitually commence from British ports.
With thanks to Daniel Barnett’s employment law bulletin for providing a summary of this case.