Members at work

New twist in Seahorse saga

31 January 2019

Nautilus is considering whether to challenge an important UK Court of Appeal judgment on the application of collective employment rights of British seafarers.

In a ruling delivered shortly before Christmas, the court upheld an appeal by Seahorse Maritime against an earlier decision that it has jurisdiction to decide if the company should have consulted the Union over proposals to make seafarers redundant from the Sealion fleet of 25 ships in 2015.

Judges determined that the ships were separate 'establishments' under UK law. Employers are only obliged to consult on redundancies in 'establishments' of 20 or more workers.

The appeal court noted that 'typically most Seahorse employees were, and remained, assigned to particular ships for long periods'. Each ship, the judgment stated, could be classed as an establishment and was 'clearly a selfcontained operating unit of the kind described in the case law'.

Noting that the lack of obligation to consult 'has not been definitively established', the judgment also addressed the question of whether the Seahorse employees were covered by UK employment law – what is known as the issue of territorial jurisdiction.

The judges said that in the previous 18 months, ships from the Sealion/Toisa fleet had operated in 11 countries – all but two of them outside Europe – in SE Asia, the Caribbean, Latin America and Africa. They determined that 'there is nothing in the present case that would overcome the territorial pull of the location of the establishment' when determining whether UK employment law applied on the vessels.

'The only connections with Great Britain are that some (though not all) of Seahorse's functions are performed through its agent, FMA, which is based in Farnham,' the judgment stated. The judges also argued that it would be 'very odd, and would put a union in an impossible position if it represented both UK-based and non-UK-based employees, if it could consult only about the procedures for part of the workforce. The position would be still more difficult if the non-UK-based employees benefited from consultation obligations under the law of a different jurisdiction'.

The verdict means that members serving on Sealion ships operated outside the UK are unable to claim a protective award for the lack of consultation over the redundancies.

Nautilus director of legal services Charles Boyle said he was disappointed by the ruling. 'The Union has had considerable success in recent years in establishing that that individual UK employment rights apply to seafarers who are based in the UK or who have a close connection with Great Britain and British employment law,' he added.

'This case is unique in that it is the first time the courts have had to rule on whether the duty to collectively consult applied to employees who work outside the UK. Nautilus is studying the issues and consequences of the judgment closely to determine whether to take the matter to the UK Supreme Court.'