Wilson v P & O European Ferries Ltd & Ors  (Jurisdiction Issue)  (21 May 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	03441/99SD

APPLICANT:		Janice Wilson

RESPONDENTS:	1.	P & O European Ferries Limited
2.	Pentmarine (1982) Limited
3.	P & O European Ferries (Irish Sea) Limited 
4.	P & O Ship Management (Irish Sea) Limited

DECISION ON A PRELIMINARY HEARING
The unanimous decision of the Tribunal is;
(i)	The correct Respondent in these proceedings is Pentmarine (1982) Limited; and
(ii)	That the Tribunal does not have jurisdiction to hear the Applicant’s complaint since she did not work at an establishment in Northern Ireland.      

Appearances:
Mr G. Grainger, of Counsel, instructed by Basil Glass & Co., Solicitors, for the applicant.
Mr P Grant, of Counsel, instructed by McKinty & Wright, Solicitors, for the first, third and fourth-named Respondents.
No appearance for the second Respondent.

1.	The Preliminary Issues to be determined by the Tribunal were;
(i)	The correct Respondent.
(ii)	Whether the Tribunal has jurisdiction to consider the Applicant’s complaint.

The Tribunal Found the Following Facts

2.	The Applicant’s application form for the job of customer services cabin crew, which she signed on 19 April 1997, was headed Pentmarine (1982) Limited. It gave the address of Pentmarine (1982) Limited as 95 Jervois Street, Western Hong Kong, with the UK and NI agents as P & O European Ferries (Felixstowe) Limited. The Applicant gave evidence that she received a letter from P & O European Ferries (Felixstowe) Limited inviting her to interview on 9 May 1997. This letter was written by Mr F Lindsay, Personnel Officer – Northern Service of P & O European Ferries (Felixstowe) Limited.  Following this interview, the Applicant received a further letter from Mr F Lindsay, and written on the letterhead of P & O European Ferries (Felixstowe) Limited, inviting her to attend training on 20 May 1997 at the University of Ulster.  The Applicant was awarded a certificate from Viking Life-Saving Equipment Limited in the name of P & O European Ferries Limited dated 17 June 1997, to verify that she had completed training in the use of Viking Marine Evacuation Slide Systems.  On 20 June 1997, the Applicant received a further letter from Mr Lindsay which offered the Applicant employment.  This letter was also written on the letterhead of P & O European Ferries (Felixstowe) Limited, and stated, “I write in our capacity as Northern Agents for Pentmarine (1982) Limited of Hong Kong”.  The Applicant accepted the offer of employment and commenced working on 23 June 1997 in the customer services department on the Jetliner ferry which carries passengers back and forth across the Irish Sea.  The vessel was registered in the Bahamas on 9 August 1996 as the property of Norwegian Fast Ferries of Thornohlensgt 35-51 Bergen, Norway.  The Applicant’s terms and conditions of employment were also headed Pentmarine (1982) Limited, and contained provision for her job title, probationary period, hours of work and shift patterns, rosters and leave arrangements, absence from work owing to sickness and other reasons, salary, clothing and appearance, disciplinary and grievance procedures, training and development, promotion et cetera.  In the preamble, these terms and conditions included the statement, “Throughout the term “employment” means employment with Pentmarine”.  At the commencement of her employment, the Applicant understood that, since she was employed by an employer registered outside the UK, she could elect to pay Class 2 National Insurance Contributions, and she made this election by a document signed by her on 29 June 1997.  This document indicates that such payments were made through Pentmarine (1982) Limited from July 1997

3.	The Applicant’s duties were welcoming passengers on board the craft, serving at sales points and answering queries from passengers.  The Applicant wore a P & O uniform of a blue blazer and skirt, check blouse, with a P & O badge on the blazer.  She took daily instructions from the customer services supervisor, who in turn answered to the customer services manager, who was under the overall direction of the captain of the vessel.  The customer services supervisor wore the same uniform as the Applicant.  The customer services manager was Mr Martin McDonnell.  The latter wore the same uniform except it was a darker blue from the Applicant’s, and Mr McDonnell wore a P & O flag on his jacket and the pocket of his shirt.  

4.	The Applicant received further training and certificates as follows;

(i)	Certificate certifying attainment of required standard of knowledge to crew on the P & O Jetliner vessel.  This certificate was issued by P & O European Ferries (Felixstowe) Limited in September 1997.

(ii)	Certificate certifying the successful completion of DiverseyLever training course on 1 September 1998 in the use of chemical cleaning substances.  This training was given by Damian Havlin, P & O Catering Manager.

(iii)	Certificate issued by P & O European Ferries (Felixstowe) Limited dated September 1999 and signed by the Captain of the Jetliner to verify that the Applicant had attained the required standard of knowledge to crew the vessel.

(iv)	Certificate dated 29 June 1997 and signed by the P & O Customer Services Manager, Christina Mullan.  The training given was in general instruction.  The certificate was also signed by the Captain of the Jetliner.

(v)	Certificate dated 29 June 1997 in various areas of instruction, also signed by Christina Mullan.

(vi)	The Applicant was invited to attend a Customer Care Training Course on 17-18 February 1999 by P & O European Ferries (Irish Sea) Limited.  The Applicant attended this course, and attained the appropriate certificate for same.

(vii)	Certificate of Competence to Operate Ships’ Watertight Doors issued by P & O European Ferries dated 21 November 1998.  The training on this occasion was given by Martin McDonnell.

5.	The Applicant was appraised under the P & O European Ferries system by Martin McDonnell (Customer Services Manager).  Moreover, the Applicant completed a probationary form on 20 April 1998, which form was headed P & O European Ferries (Irish Sea) Limited.  Mr McDonnell hand wrote comments under the section headed “Employer’s comments”.

6.	The Applicant was also issued with a document headed “Standards of Dress and Appearance” which stressed the importance that “the Company uniform, name badge and appropriate rank insignia are worn by all uniformed staff throughout their entire period of duty”, and which document provided instruction on the appropriate chain of command within the Company.

7.	The Applicant was instructed in her duties at all times by P & O Management, particularly Damian Havill.  At no time did she direct any queries other than to P & O management.  

8.	In early 1999 the Applicant became pregnant and thereafter suffered from abdominal pain.  In or about April 1999, concerns arose about the Applicant’s condition.  About that time, the Applicant informed her Supervisor that she was pregnant.  She informed Marlene Emmett (Trainee Manager) – who was substituting for Martin McDonnell - of this fact.  The Applicant was then instructed to inform Mr Cliffe (Fleet Personnel Manager in Fleetwood) of her pregnancy.  The Applicant contacted Mr Cliffe around 9 April 1999 by telephone.  Thereafter, the Applicant dealt with Janice MacDonald of Mr Cliffe’s staff.  Owing to the abdominal pain the Applicant went off work on sick leave on 28 April 1999.  The Applicant wrote Janice MacDonald on 27 July 1999 to advise that she understood that from the middle to the end of May 1999 a shoreside job was being sought for her, as her job aboard the Jetliner was unsuitable for her during her pregnancy.  The Applicant was dissatisfied that no suitable response and no suitable alternative had been offered to her, and therefore she should have been placed on suspended leave on maternity grounds.  Therefore, the Applicant complained of discrimination on grounds of her sex and pregnancy.  

9.	Thereafter, the Applicant received a letter 3 August 1999 from Mr Cliffe, which advised that Pentmarine (1982) Limited was her employer, and that it did not have any statutory liability for maternity pay or maternity leave, or any duty to seek alternative employment in the event of its employees being unable to continue working at sea.  Mr Cliffe added, “this may seem very bleak and harsh, but it is as well that you are fully aware of the circumstances surrounding your employment”.  By the same date, 3 August 1999, the Applicant received a memorandum to advise, inter alia, that “as you are not entitled to SMP under the rules of Pentmarine Hong Kong (1982) Limited (sic.) the Company will pay the equivalent to you”.  This memorandum was signed by Janice MacDonald on behalf of Pentmarine Hong Kong (1982) Limited (sic.).  Thereafter, the Applicant’s Statutory Maternity Pay was paid directly into her bank account by Pentmarine Hong Kong (1982) Limited.  On 16 August 1999, the Applicant received a letter from Mr Cliffe, which was on P & O Ship Management (Irish Sea) Limited headed paper.  This letter advised, inter alia;

…You are employed as a merchant seafarer under what is commonly called an “offshore contract”.  This means that a UK registered company does not employ you.  Your employer, Pentmarine (1982) Limited is not a company incorporated in the UK, is not registered in the UK and does not have any office (“a place of business”) in the UK.  It is a Hong Kong Company, is not a member of the P & O Group and is therefore totally separate from the UK.  Because of agreements between Pentmarine and various P & O companies, Pentmarine is responsible, among other matters, for the supply of staff for the Jetliner.  It is therefore the employer and pays the salaries of you and your colleagues in the Customer Services Department serving on the Jetliner. P & O Ship Management (Irish Sea) Limited is the Agent in the UK for Pentmarine in respect of that vessel and deals with day to day matters of administration, particularly in relation to handling employee queries and providing a channel for the easy communication of payroll information.  Jetliner, the vessel upon which you serve, is not registered in Northern Ireland (or indeed at any other port in the United Kingdom) and is on what is known as a “bare boat charter”: it is therefore not owned by P & O….However, UK legislation covers not only UK employees and as a result of the “offshore contract” you are not classed as a UK employee and therefore the various pieces of legislation to which you have made reference in earlier correspondence, and in particular that relating to discrimination legislation or industrial tribunal procedures, do not extend to your employment.  

Generally speaking, Jetliner would not be viewed as being a suitable working environment for a pregnant woman.  This is based on concerns for the wellbeing of the individual and her unborn baby after having taken the nature of the vessel and its operation into account.  It was for this reason and the fact that Pentmarine, not having an office in the UK, does not have any shore based staff and therefore has no facilities itself for offering any shore based work, that approaches were made to P & O European Ferries at Larne to see if there was short term shore based work available which would correspond with the period in question.  Obviously a job ashore cannot be conjured out of thin air and equally any position that may be available must be suitable.  It appeared that there was a possibility of some seasonal work being available for which you could be considered and which might be suitable.  Consequently you were asked, once you were able to return to work, to contact either Mr Havlin or Mr Brown at Larne so that the matter could be progressed further.  In your case you have been continuously absent from duty since 28 April 1999 and your GP has continued to state that you were unfit for work because of abdominal pain.  As you had not made any contact and in the absence of any other information, it is entirely reasonable to deduce that you were not fit for any work and consequently no further approach was made to P & O European Ferries with regard to shore work.

10.	The Applicant’s payslips were all headed Pentmarine, but were provided in a P & O envelope.  She sent all her sick lines to the P & O office at Fleetwood.  As she never had reason to write to anyone in Pentmarine in Hong Kong, and had no contact with anyone there, she regarded herself as employed by P & O Ferries.

11.	The Applicant left her employment on 6 February 2000, and received a P45 form which indicated that Pentmarine (1982) Limited of Hong Kong was her employer.  The Applicant accepted that on every taxation document she had received during her employment, the employer was ascribed as Pentmarine (1982) Limited.  Moreover, in cross-examination, the Applicant conceded that her terms and conditions of employment were headed Pentmarine (1982) Limited.  Although the preamble of the terms and conditions stated, “Throughout the term “employment” means employment with Pentmarine”, the Applicant appears to have thought she was employed by P & O Ferries, or that P & O Ferries was a subsidiary of Pentmarine (1982) Limited.  In cross-examination, the Applicant accepted that all those who had day-to-day managerial responsibility for her were employees of Pentmarine (1982) Limited.  

12.	The Applicant presented an Originating Application on 6 August 1999, alleging that she had been discriminated against contrary to the Sex Discrimination (NI) Order 1976 [“the 1976 Order”] and/ or relevant European Law.  The Originating Application cited P & O European Ferries Limited as the employer.  She complained that, after she had informed her employer of her pregnancy, no risk assessment had been carried out regarding her work on board the Jetliner during pregnancy.  Working on board the vessel aggravated her abdominal pain, and therefore she could not continue such employment.  Therefore, she went off on sick leave and in mid-May 1999 was offered two weeks work covering other employees ashore.  The Applicant refused this alternative employment owing to her abdominal pain, and as stated already left her employment on 6 February 2000.  

13.	Following a preliminary hearing on 1 October 2001, on the issue of the joinder of respondents, a differently-constituted Industrial Tribunal ruled that P & O European Ferries (Irish Sea) Limited & P & O Ship Management (Irish Sea) Limited be added as Respondents to P & O European Ferries Limited and Pentmarine (1982) Limited.  On reading the Preliminary Decision of that Tribunal, it strikes this Tribunal as somewhat strange that no argument was advanced on 1 October 2001 in respect of the joinder of P & O European Ferries (Felixstowe) Limited.  Notices of Appearance, presented on 22 October 2001, were lodged for (i) P & O European Ferries Limited, (ii) P & O European Ferries (Irish Sea) Limited, and (iii) P & O Ship Management (Irish Sea) Limited, denying that they were the employers of the Applicant, and alleging that she was employed throughout by Pentmarine (1982) Limited which is not a subsidiary of any P & O Company, and which is based in Hong Kong with no place of business in the UK.  The vessel on which the Applicant worked is registered in Nassau in the Bahamas.  No Notice of Appearance has ever been presented for Pentmarine (1982) Limited.

THE DECISION OF THE TRIBUNAL

14.	Having considered the Originating Application, Notices of Appearance, all the statutory and   case law references cited before it, and having regard to the oral and documentary evidence before it, the Industrial Tribunal makes the following Decision and Orders;

i.	Pursuant to Article 2(2) of the 1976 Order, “employment” is defined as;

Employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly.

ii.	Article 13 of the 1976 provides, inter alia,

13 [1]    For the purposes of this Part …employment is to be   
regarded as being at an establishment in Northern Ireland unless the employee does his work wholly or mainly outside Northern Ireland.

  [2]    Paragraph (1) does not apply to-

(a)	employment on board a ship registered at a port of registry in Northern Ireland, or

(b)	employment or hovercraft registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Northern Ireland;

but for the relevant purposes such employment is to be regarded as being at an establishment in Northern Ireland unless the employee does his work wholly outside Northern Ireland.

[3] 	In the case of employment on board a ship registered at a port of registry in Northern Ireland (except where the employee does his work wholly outside Northern Ireland, and outside any area added under paragraph (5)) the ship shall for the relevant purposes be deemed to be the establishment…

ii.	The Tribunal has considered the test laid down by the Court of Appeal in Northern Ireland Court in the case of Percival-Price & Others v. Department of Economic Development & Others [2000] IRLR 385, per the Lord Chief Justice Sir Robert Carswell;

The tribunal in the present case took the view that the term “worker” in the context of Community law must be interpreted broadly in a purposive fashion, an approach with which we agree.  The object of the Community legislation, protection against inequality of treatment or discrimination, seems to us to require the inclusion within the definition of all persons who are engaged in a relationship which is broadly that of employment rather than self-employed or independent contractors.

iii.	The Tribunal has also given extensive consideration to Carmichael v. National Power Plc [2000] IRLR 43 {House of Lords}, per the speech of Lord Hoffman;

Putting the matter at its lowest, I think that it was open to the Industrial Tribunal to find, as a fact, that the parties did not intend the letters to be the sole record of their agreement but intended that it should be contained partly in the letters, partly in oral exchanges at the interviews or elsewhere, and partly left to evolve by conduct as time went on.  This would not be untypical of agreements by which people are engaged to do work, whether as employees or otherwise.  Although the Tribunal did not expressly state this to be their finding, their whole approach to the evidence was consistent only with their having come to such a conclusion.  In my view they were entitled to do so….

The evidence of a party as to what terms he understood to have been agreed is some evidence tending to show that those terms, in an objective sense, were agreed.  Of course, the Tribunal may reject such evidence and conclude that the party misunderstood the effect of what was being said and done.  But when both parties are agreed what they understood their mutual obligations (or lack of them) to be, it is a strong thing to exclude their evidence from consideration.  Evidence of subsequent conduct, which would be inadmissible to construe a purely written contract…may be relevant on similar grounds, namely that it shows what the parties thought they had agreed…

The Tribunal has applied this test to the facts found by it.  The Tribunal is left in no doubt that the Applicant applied for her job on a Pentmarine (1982) Limited form, received a letter of offer of employment dated 20 June 1997 from P & O European Ferries (Felixstowe) Limited acting as agent for Pentmarine (1982) Limited, received terms and conditions of employment from Pentmarine (1982) Limited, received all her payslips which indicated that Pentmarine (1982) Limited was the employer, as did all the taxation documents the Applicant received.  Whilst the Tribunal, to some extent, can understand that the Applicant may have misunderstood that she was employed by P & O Ferries [the letter of 9 May 1997 was written by P & O European Ferries (Felixstowe) Limited, she received a number of certificates bearing the name of P & O Ferries, wore a P & O uniform and was appraised on a form headed P & O European Ferries (Irish Sea) Ltd], the Tribunal is unanimously satisfied on balance of probabilities that Pentmarine (1982) Limited was her employer.  The principal documentation establishing the contract of employment, and the subsequent documentation that accrued throughout the existence of the same contract, [the Applicant’s application form dated 19 April 1997 {which clearly indicated that P & O European Ferries (Felixstowe) Limited was the UK and NI agent for Pentmarine (1982) Limited}, the letter of offer of employment dated 20 June 1997, the Applicant’s terms and conditions, all the Applicant’s taxation documentation throughout the period of her employment] all indicate that the economic reality of the Applicant’s employment was that she was employed by Pentmarine (1982) Limited.  Moreover, the subsequent conduct of the parties supports this conclusion in that the Applicant knew and understood that she was eligible for Class 2 National Insurance contributions as an offshore employer of Pentmarine (1982) Limited, to which benefit she signed her consent on 29 June 1997.  The Tribunal has construed all the evidence before it, and has applied the purposive approach of Percival Price & Others and the multi-factorial test laid down by the House of Lords in Carmichael v. National Power Plc.  Using these interpretative canons, the Tribunal is driven to the determination that the Applicant’s employer was at all times Pentmarine (1982) Limited.  

iv.	The Tribunal considered dicta of the English Court of Appeal in Harrods & Another v. Remmick & Others [1998] ICR 156, and of the Court of Appeal in Northern Ireland in Patefield v. Belfast City Council [unreported].  In the latter case, the respondent/ applicant (a contract worker employed by Diamond Recruitment) was held to have discriminated against by the appellant City Council when it filled her post with a permanent employee, although it knew that Ms Patefield wished to return to her post after the birth of her child.  The Tribunal found this authority to be distinguishable on the facts to those of the complaint before it.  There is insufficient evidence before the Tribunal to lead it to the conclusion that the Applicant was a contract worker, pursuant to Article 12 of the 1976 Order.  The evidence before the Tribunal is that Pentmarine (1982) Limited supplied the services provided by the Applicant to a range of P & O companies.  However, there is insufficient evidence that such provision was on foot of a contract made between Pentmarine (1982) Limited and any or all of the first, third and fourth Respondents.  Indeed, the letter of 16 August 1999 from Mr Cliffe states that “Because of agreements between Pentmarine and various P & O Companies, Pentmarine is responsible … for the supply of staff for the Jetliner”.  Indeed, Mr Cliffe was at pains to emphasise that Pentmarine is not a member of the P & O Group and is totally separate from the UK.  Moreover, the respondent/applicant in Patefield v. Belfast City Council was managed by the staff of Belfast City Council, whereas Ms Wilson conceded in cross-examination before us that all those who had day-to-day managerial responsibility for her were also employees of Pentmarine (1982) Limited.  Therefore, the Tribunal cannot determine the Applicant to be a contract worker, pursuant to Article 12 of the 1976 Order.  

v.	The Tribunal thus answers the first of the preliminary questions at paragraph 1(i) above in deciding that Pentmarine (1982) Limited is the correct Respondent in this application.  The Tribunal therefore dismisses the first, third and fourth Respondents in this complaint.

vi.	The Tribunal then considered the second preliminary question before it, viz: whether it has jurisdiction to consider the Applicant’s complaint.  The Tribunal has considered the provisions of Articles 5 and 6 of Council Directive 76/207 EEC.  

vii.	Mr Grainger sought to argue before us that if the Tribunal were to decide that the exclusions contained in Article 13 of the 1976 Order applied to the Applicant, and that no Respondent within the jurisdiction of the Industrial Tribunal in Northern Ireland were liable to answer her complaints, she would therefore left without a remedy in employment law in this province.  This, according to Mr Grainger, would be contrary to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as enshrined in domestic legislation in Schedule 1 of the Human Rights Act 1998.  Conscious that the Tribunal, as a juridical body, is enjoined to uphold and apply such human rights, the Tribunal has considered Article 6 in its entirety, and determines that the Applicant has had “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.  The Tribunal holds to the view that nothing in Article 6 in particular, or, indeed, within the Human Rights Act 1998 in general, obliges the Tribunal to provide an applicant before it with a remedy.  The exclusions of Article 13 of the 1976 appear to the Tribunal to be both legitimate and proportionate, and accordingly the Tribunal declines to move to declare them incompatible with European Law or the provisions of the Human Rights Act 1998.

viii.	The Applicant’s complaint falls within Part III of the 1976 Order and Article 8 in particular.  Article 8(2) provides;

(2)	It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her;

(a)	In the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them; or

(b)	By dismissing her, or subjecting her to any other detriment.

In order for the Applicant’s case to fall within the jurisdiction of the Tribunal, she must satisfy it that she was employed at an establishment in Northern Ireland. Article 13 (1) of the 1976 Order provides that employment is to be regarded as being at an establishment in Northern Ireland unless the employee does his work wholly or mainly outside Northern Ireland.  Article 13(2) provides that Article 13(1) does not apply to employment on board a ship registered at a port of registry in Northern Ireland, but such employment is to be regarded as being at an establishment in Northern Ireland unless the employee does his work wholly outside Northern Ireland.  The Jetliner vessel upon which the Applicant worked was chartered by Pentmarine (1982) Limited, the Applicant’s employer, from a Bahamian company on 9 August 1996.  As such, the vessel falls outside the scope of Article 13(2) (a) of the 1976 Order, in that the Applicant clearly never worked aboard a ship registered at a port of registry in Northern Ireland.  Thus, for the Tribunal to have jurisdiction to hear the Applicant’s complaint, she is driven back to the provisions of Article 13(1) of the 1976 Order.  Article 2(2) of the 1976 Order defines Northern Ireland as including “such of the territorial waters of the United Kingdom as are adjacent to Northern Ireland”.  The fact that the vessel, upon which the Applicant worked, crossed the Irish Sea to the mainland of Great Britain leads the Tribunal to the ineluctable conclusion that the Applicant worked “wholly or mainly” outside Northern Ireland.  In turn, this leads the Tribunal to the conclusion that the Applicant falls entirely outside the provisions of Article 13 of the 1996 Order and that she did not work at an establishment in Northern Ireland.  It follows that the Applicant cannot satisfy the provisions of Article 8(2) of the 1976 Order.  

ix.	Since the Applicant falls out with the criteria of Article 8(2) of the 1976 Order, the Tribunal determines, with reluctance, that has no jurisdiction to hear the complaint against Pentmarine (1982) Limited.  It therefore dismisses the complaint against that company.

x.	No further or other Order is made.   

____________________________________

Date and place of hearing:  20-21 May 2002, Belfast

Date decision recorded in register and issued to parties: