United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 100_90_1902

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BAILII case number: [1992] UKEAT 100_90_1902

Appeal No. EAT/100/90

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 19th February 1992

Before

THE HONOURABLE MR JUSTICE PILL

MR T S BATHO

MR K GRAHAM CBE

MR R H DAWSON APPELLANT

B P SHIPPING LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MR A HILLIER

(Of Counsel)

Messrs Hill Taylor Dickinson

Solicitors

Irongate House

Duke's Place

London

EC3A 7LP

MR JUSTICE PILL: This is an Appeal by Mr Richard Henry Dawson against a Decision of an Industrial Tribunal sitting at London (South) on the 28th November 1989 in which they held unanimously that they had no jurisdiction to consider the applicant's complaint. Mr Dawson's complaint was, and is, that the respondent Company, B P Shipping Limited, had unlawfully discriminated against him contrary to Section 4(1)(a) of the Race Relations Act 1976.

Notice had been given to the parties by letter of 27th October 1979, that the hearing would be limited on that occasion to consideration of preliminary issues which were set out in the letter. The relevant preliminary issue is whether the Originating Application disclosed any grounds for complaint which the Industrial Tribunal had jurisdiction to consider. By that letter the parties were told that they were entitled to appear at the hearing and to state their case in person, or be represented. It was stated that they might adduce oral evidence which is relevant to the preliminary issue and that they might also make written representations. We refer to that because a point taken by Mr Dawson upon appeal is that the Tribunal had no jurisdiction to conduct a preliminary hearing. The Rules of Procedure are set out in Schedule 1 to Statutory Instrument 1986 No.16. Rule 8(1) provides:

"The tribunal shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings"

The Tribunal were entitled to consider what they describe as "preliminary issues" and an appropriate notice was given to Mr Dawson. Where we would criticise the wording of the notice is in the use of the expression in the first paragraph "preliminary hearing" and it is not surprising that Mr Dawson has drawn to our attention the absence of any provision for a "preliminary hearing" in the Rules.

However, there is jurisdiction to consider issues one by one in any manner which the Tribunal sees fit providing there is a compliance with Rule 8. The notice made clear what in substance was to be considered at the hearing on the relevant date and we do not consider that the proceedings were in any way invalidated by the use of the expression "preliminary hearing" as a heading and in the body of the letter to which we have referred. That was not in any event a point taken before the Tribunal itself. The Tribunal did hear evidence as contemplated in the notice, the employers called witnesses and Mr Dawson was, as he accepts, given an opportunity to give evidence, though in the event he did not. That was a course he was entitled to follow.

In their reasoned Decision the Tribunal set out their findings of fact and it is appropriate to read paragraph 2 in full:

"2The Originating Application states that on 14 August 1989 the applicant applied to the respondent Company for employment as an able seaman on board one of its tanker vessels and was referred to its Fleet Personnel Department at Harlow. He contacted that Department and was informed that the company no longer recruited in this country but only through two employment agencies abroad, one of which was Dorchester Marine Limited, a company established in Bermuda with an office in the Isle of Man. The following day the applicant completed a Dorchester Maritime Limited application form and next morning enquired of that company what his prospects of gaining employment were. He states that Dorchester Maritime Ltd told him that the respondent company no longer employed British seamen but only those from India, Pakistan and the Philippines."

The Tribunal found as a fact that on the basis of the evidence of Captain Smith, the Manager of the Company's fleet,:

"the vessels it owns or charters are only in United Kingdom territorial waters for a very small percentage of each year and in many cases do not come here at all."

The Tribunal found that Mr Dawson's application for employment:

"was the one he made on 15 August 1989 to Dorchester Maritime Limited on that company's application form."

He sent his application to them at their Isle of Man office.

The respondents accept that Mr Dawson was denied employment on ships owned or chartered by them on racial grounds. They further state their ships are all registered outside the United Kingdom. While there is no specific finding of fact to that effect by the Tribunal, there was uncontradicted evidence of that and we assume, and this is not the subject of dispute, that the Tribunal accepted that evidence.

Mr Dawson relies upon Section 4 of the Act which must be read with Section 8. Section 4(1) provides in so far as is material:

"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

(a)in the arrangements he makes for the purpose of determining who should be offered that employment; or

..........................

(c)by refusing or deliberately omitting to offer him that employment."

Section 8 provides:

"(1)For the purposes of this Part (`the relevant purposes'), employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly or mainly outside Great Britain.

(2)In relation to -

(a)employment on board a ship registered at a port of registry in Great Britain; or

(b).............................

subsection (1) shall have effect as if the words `or mainly' were omitted."

In Section 78 of the Act, the interpretation section, Great Britain is said to include:

"such of the territorial waters of the United Kingdom as are adjacent to Great Britain"

Under the Interpretation Act 1978, Schedule 1, the Isle of Man is not part of Great Britain.

Mr Dawson submits that the employment concerned was at an establishment in Great Britain and that the decision taken by Dorchester Marine Limited, at their Isle of Man office, was a decision taken in Great Britain a point relevant under section 9 below. He goes on to submit that he is not excluded by Section 8 because the Tribunal were not entitled to find on the evidence that the work was to be wholly or mainly outside Great Britain. That is a matter of evidence upon which the Tribunal made the finding to which we have referred.

Mr Dawson would be excluded, in our judgment, from relying upon Section 4 on the facts as found because of the contents of Section 8 of the Act. There was evidence which the Tribunal were entitled to accept that the ships involved, which it is conceded should be regarded as establishments within the meaning of the Act, plied their trade wholly or mainly outside Great Britain and he could not, under Section 8, have defeated the evidence that he did his work wholly, or mainly outside Great Britain.

To establish that the Isle of Man is in Great Britain Mr Dawson relies upon the provisions of the Territorial Waters Jurisdiction Act 1878, which refers to the jurisdiction of her then Majesty over the open seas adjacent to the coasts of the United Kingdom. Section 2, as far as is material, provides that:

"an offence committed by a person .... on the open sea within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral"

In Section 7, the definition Section, "United Kingdom" is said to include:

"the Isle of Man, the Channel Islands, and other adjacent islands:"

and the territorial waters of Her Majesty's dominions includes

"such part of the sea adjacent to the coast of the United Kingdom as is ....... within the territorial sovereignty of Her Majesty".

It further provides that:

"`Offence' as used in this Act means an act, neglect or default of such a description as would, if committed within the body of a county in England, be punishable on indictment according to the law of England for the time being in force."

Mr Dawson submits that the offence which he alleges has been committed under the Race Relations Act 1976 in the Isle of Man is by virtue of the 1878 Act an offence committed in Great Britain and falls within Section 4(1) of the 1976 Act.

We are quite unable to accept that submission. We have referred to the definitions in Section 78 of the 1976 Act and Section 7 of the 1878 Act. We have been referred to the Territorial Sea Act of 1987 which extends the territorial sea adjacent to the British Islands and by Section 4(4) empowers Her Majesty by Order in Council to direct that any provisions of the Act shall extend to any of the Channel Islands or the Isle of Man. The Act also provides that orders may be made to define the baselines from which the breadth of the territorial sea is to be measured. The current United Kingdom Order is The Territorial Sea Limits Order 1989, Statutory Instrument 1989/482. It does not appear that an Order has been made under Section 4(4) with respect to the Isle of Man. Mr Dawson boldly submits that by virtue of the 1878 Act, not only the territorial waters around the Isle of Man but the Isle of Man itself comes for the purpose of the 1976 Act within the boundaries of Great Britain and that the conduct complained of constitutes an offence under that Act. On the appropriate Statutory wording we can find no basis for finding him to be correct. Even if an Order were to be made under Section 4(4) of the 1987 Act, that could not alter the position. Further an alleged breach of the 1976 Act does not come within the definition of offence in the 1878 Act. Mr Dawson also relies upon Section 40 of the Offences Against the Person Act 1861. There is no suggestion that "force" has been used by the respondents and that Section can in any event be of no assistance to him.

We should refer to more general points made by Mr Dawson. He submits that it was not open to the respondents to alter their practices with respect to employment in such a way as to evade the provisions of the 1976 Act. The Tribunal expressed their sympathy with Mr Dawson who was:

"a British seaman unable to obtain work because the respondent company and other British shipowners prefer to recruit foreign labour"

A company however, like a private individual is entitled so to organise its affairs that they are not governed by the terms of a particular statute or particular statutes. We cannot hold that the Tribunal were wrong because these employers have chosen so to organise their affairs, including use of a company with an office in the Isle of Man, that the 1976 Act does not apply to them.

Had we been able to find in favour of Mr Dawson on the construction of Sections 4 and 8 he would still have had to overcome the "exception for seamen recruited abroad" which is enacted in Section 9 of the Act. That provides in subsection (1):

"Nothing in section 4 shall render unlawful any act done by an employer in or in connection with employment by him on any ship in the case of a person who applied or was engaged for that employment outside Great Britain."

Even had we come to the conclusion that his place of work was within the definitions of Sections 4 and 8 he would have failed under Section 9(1), given that the Isle of Man is outside Great Britain, by virtue of the express provisions in that subsection. By virtue of subsection (3) subsection (1) does not apply to employment or work concerned with the exploration of the sea bed or sub-soil or the exploitation of their natural resources in an area for the time being designated under Section 1(7) of the Continental Shelf Act 1964. Mr Dawson submits that his work would have come within that exception. This was not a point taken before the Industrial Tribunal and on the evidence before them there was no basis for a finding that Section 9(3) operated. In any event we have heard nothing in the submissions of Mr Dawson which would not entitle us to come to the view that his employment or work came within that subsection.

We should deal with one further point made by Mr Dawson under Section 9. He submits that the relevant employer is the Master of the ship upon which Mr Dawson would have been employed. He submits that Section 9(1) should be construed as arising only when the seaman boards the ship, and that, he submits, accords with the acceptance in this industry of the fact that the Master is the employer. We cannot accept on the material before us, that as correct. But neither can we accept the interpretation which Mr Dawson seeks to put upon Section 9(1) that the exception arises only once the seaman has boarded the ship. Our view of the subsection is that the word "ship" is governed by the words which immediately precede it "employment by him" and the Section contemplates that the exception shall arise when an act is done by an employer to secure the employment of a man on a ship.

Mr Dawson does not pursue the submissions which he made before the Tribunal under Section 7 of the Act and which they rejected at paragraph 5 of their reasoned Decision. He does however, seek to rely upon Sections 30, 31 and 32 of the Act. Section 30 provides:

"It is unlawful for a person -

(a)who has authority over another person; or

(b)in accordance with whose wishes that other person is accustomed to act,

to instruct him to do any act which is unlawful by virtue of Part II or III, [that includes Sections 4 and 8] or procure or attempt to procure the doing by him of any such act."

There was no evidence before the Tribunal which would have entitled them to invoke that Section in Mr Dawson's favour. The evidence which was before them was that the Company to whom he applied, Dorchester Marine Limited, was a Company separate from the respondents. Indeed, the respondents, if necessary, would have taken the point in relation to the submissions of Mr Dawson already considered, that the application for a job was not to them but to Dorchester Marine Limited, and that accordingly the Tribunal should have no jurisdiction over them in this matter.

Sections 31 and 32 do however deal respectively with pressure to discriminate and with liability of employers and principals, Section 31 provides:

"It is unlawful to induce, or attempt to induce, a person to do any act which contravenes Part II or III."

There was no evidence before the Tribunal upon the basis of which they could have invoked that provision in Mr Dawson's favour. Section 32(2) provides that:

"Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him."

Mr Dawson relies upon that provision to bring the respondents within the jurisdiction of the Tribunal. He could do that only had he succeeded on his submissions in relation to the meaning of the Sections already considered, and that he has failed to do. Furthermore, there is no evidence of any link between the two companies which would have brought the subsection into operation. The evidence was of an arrangement whereby men were employed by Dorchester Marine Limited and under a separate arrangement that Company contracted the service of its employees to companies such as the respondents.

Mr Dawson has presented his case before this Tribunal with persistence and, if we may say so, with eloquence. However, we find no merit in the submissions he makes. In our judgment the Industrial Tribunal were correct upon the evidence and upon the statutory provisions to conclude that they had no jurisdiction to consider the application.

The Appeal is dismissed.

The application for costs is refused.

Leave to appeal is refused.