United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Mr James Goudie QC & Mr Ian Truscott QC (of Counsel) Instructed by: Messrs Simpson & Marwick Solicitors 4 Carden Terrace Aberdeen AB10 1US
For Mr J Roberts & others and Mr A F Smith & others Respondents Mr T L Russell & others and Mr K Harcus & others Respondents	Mr Andrew Stafford QC (of Counsel) Instructed by: Messrs Allan McDougall & Co Solicitors 3 Coates Crescent EDINBURGH EH3 7AL & Messrs Rowley Asworth Solicitors Suite 1b Josephs Well Hanover Walk LEEDS LS3 1AB Neither present nor represented


 


SUMMARY

The claimants were offshore workers the vast majority of whom were employed to work on installations situated on or over the UK Continental Shelf ("UKCS"). They presented applications to the Employment Tribunal in which they claimed that their employers were in breach of the Working Time Regulations 1998 in relation to their rights to paid annual leave. The employers asserted that the regulations did not apply to the UKCS. After a pre-hearing review, the Employment Tribunal held that they did. The employers appealed (by which time the regulations had been amended so as to expressly cover the UKCS but only as from 1 October 2006, leaving parties in dispute regarding the earlier period). The EAT held that the regulations had applied to the UKCS prior to the 2006 amendment.


 


THE HONOURABLE LADY SMITH

Introduction

1. This case concerns the extent and application of the Working Time Regulations 1998 ("WTR"). The appellants comprise a group of 15 companies involved in oil exploration in the North Sea. The respondents are 278 of their employees working on their installations who presented applications to the Employment Tribunal at Aberdeen in which they sought to enforce their rights to paid leave as provided for in regulations 13 and 16 of WTR. Following a pre–hearing review the tribunal, Chairman Mr R Christie, sitting alone, determined that WTR applied notwithstanding the fact that most of the installations on which the claimants were working at the relevant time were situated on or over the UK Continental Shelf ("UKCS").
2. All the appellants were represented before the tribunal and before me, by senior counsel. All the respondents were represented before the tribunal, also by senior counsel. The respondents fall into several groups according to their union membership. Those covered by AMICUS and the TGWU were represented before me by senior counsel and those covered by the OILC provided written submissions but did not appear nor were they represented.
3. I propose to refer to parties as claimants and respondents.

Background Facts

4. The factual background can be very shortly stated as it was not in dispute and the issue between the parties was a question of law.
5. All of the claimants save three were, during the periods to which their applications relate, employed offshore on installations situated in the North Sea and either on or over the UKCS or, in the case of mobile drilling units, capable of being in such a position. The three exceptions were claimants Saleh, Spalding and Harkins who were employed on an installation located beyond the UKCS.
6. In their applications the claimants all assert that they had not, during certain periods referred to, been afforded paid annual leave. That is an assertion which the respondents dispute. I understand that the resolution of that dispute is liable to turn on whether the rest periods that were afforded to the claimants could, as a matter of law, be regarded as leave or not. That is not, however, an issue that will require to be resolved if the respondents succeed in this appeal.
7. The respondents' first line of resistance to the claimants' claims was, however, to respond with the argument that WTR did not apply to the workplaces in question, namely the installations on which the claimants were employed and which were all located outwith the territorial waters of Great Britain, albeit that they were almost exclusively within the area of the UKCS.

The Issue

8. There was only one issue for determination by the Employment Tribunal namely whether or not WTR applied to employment on offshore installations located in the UKCS after an amendment to them which was made in 2003 (SI 2003/1684) and prior to the amendment to them that came into force on 1 October 2006.

The Working Time Regulations 1998

9. These regulations were made and came into force in 1998 in belated implementation of Council Directive 93/104/EC which, as is well known, provides for certain requirements to be imposed on employers regarding, amongst other matters, the provision of paid leave of at least four weeks each year. It is important, for the purposes of the present case, to examine that and certain other directives. Directive 93/104 was addressed to all Member States and set out minimum health and safety requirements for the organisation of working time. It provided that it applied to "all sectors of activity" but under exception of certain areas of activity.
10. Paragraph 1(2) of the first (1998) version of WTR, the interpretation of which lay at the heart of the appellants' case, was then and remains in the following terms:

"These Regulations extend to Great Britain only."

At that time, however, evidently in the light of the exceptions in Directive 93/104, they were not drafted so as to cover offshore working: paragraph 18 provided that the mandatory provisions of the regulations including the obligation to provide paid annual leave (see: paragraphs 13 and 14) did not apply to:

"(i) air, rail, road, sea, inland waterway and lake transport;

(ii) sea fishing;

(iii) other work at sea; …"

The matter of the limitations to the extent of the application of Directive 93/104 was considered after 1993 in Europe. Chronologically, the next step was the response to an agreement that had been reached in respect of the organisation of the working time of seafarers. The European Community Shipowners' Association and the Federation of Transport Workers' Unions in the European Union had reached agreement regarding the matter and had requested the European Commission to implement their agreement by Council decision. The result was Council Directive 1999/63/EC which makes provision for the organisation of seafarers' working time, including the conferring on them of a right to paid annual leave of at least four weeks (clause 16). The agreement and, therefore, the Directive, applied to seafarers (a defined category) on board "every seagoing ship ... which is registered in the territory of any Member State and is ordinarily engaged in commercial maritime operations" (clause 1).

11. Then, in 2000, the wider question of the whole of the exclusions from the scope of Directive 93/104 was addressed. The outcome was Council Directive 2000/34/EC, again addressed to member states in the usual way. The recitals include the following:

"Whereas:

………

(3) Road, air, sea and rail transport, inland waterways, sea fishing, other work at sea and the activities of doctors in training are excluded from the scope of Council Directive 93/104/EC.

(4) The Commission in its proposal of 20 September 1990, did not exclude any sectors and activities from Council Directive 93/104/EC nor did the European Parliament in its Opinion of 20 February 1991 accept such exclusions.

(5) The health and safety of workers should be protected at the workplace not because they work in a particular sector or carry out a particular activity, but because they are workers.

………….

(7) Account needs to be taken of the specific nature of activities at sea and of doctors in training.

…………."

Article 1(1) of Directive 2000/34 accordingly provides, as regards Directive 93/104, that:

"Article 1(3) shall be replaced by the following:

'This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC ….'"

and Article 1(2) provides for the addition to the list of definitions in Article 2 of Directive 93/104 of the following definition:

"'offshore work' shall mean work performed mainly on or from offshore installations (including drilling rigs), directly or indirectly in connection with the exploration, extraction or exploitation of mineral resources, including hydrocarbons, and diving in connection with such activities, whether performed from an offshore installation or a vessel."

Directive 2000/34 also made provision to enable Member States to use a reference period of up to 12 months for the calculation of an offshore worker's average working hours (Article 20(2)). Further, it specifically provided that it did not apply to seafarers. They were, of course, by that time, already covered by the terms of Directive 99/63.

12. As regards the cross reference in Article 1(1) of Directive 2000/34 to Article 2 of Directive 89/391/EEC, the object of that directive was to introduce measures to encourage improvements in the safety and health of workers at work and its scope was set out in Article 2 as follows:

"This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure etc)."

The UK response to Directive 2000/34 was to amend the 1998 WTR and that was effected by SI 2003/1684 (The Working Time (Amendment) Regulations 2003). It left untouched the provisions of paragraph 1(2) but included, in paragraph 2, a definition for "offshore work" in identical terms to that set out in Directive 2000/34 and in paragraph 25B made provision, (in direct reflection of the leeway conferred by the directive), whereby the reference period for the calculation of average working hours in the case of offshore workers would be 52 weeks.

13. The specification of the excluded sectors in paragraph 18 required to be changed given that offshore work, which was clearly "work at sea", was to be covered and also given that seafarers and fishing vessels had, by then, been covered by other enactments. The list of excluded sectors was, accordingly, drafted so as to include:

"(a) … workers to whom the European Agreement on the organization of working time of seafarers dated 30^th September 1998 and put into effect by Council Directive 1999/63/EC of 21^st June 1999 applies;

(b) … workers to whom the Fishing Vessels (Working Time: Sea fishermen) Regulations 2004 apply; …"

The amendments effected by SI 2003/1684 came into force on 1 August 2003. The task for the tribunal was, accordingly, to interpret the 1998 WTR as amended by SI 2003/1684.

14. Since this case was before the tribunal and since the fixing of the hearing of the present appeal, the regulations have been amended further, in terms of SI 2006/2389. It is in the following terms:

"1. – (1) These Regulations may be cited as the Working Time (Amendment) (No.2) Regulations 2006 and shall come into force on 1^st October 2006.

(2) These Regulations extend to Great Britain only.

Offshore work

2. In regulation 2 (Interpretation) of the Working Time Regulations 1998 in the definition of "offshore work" after the words "a vessel" insert the following phrase –

", including any such work performed in the territorial waters of the United Kingdom adjacent to Great Britain or in any area (except one or part of one in which the law of Northern Ireland applies) designated under section 1(7) of the Continental Shelf Act 1964;"

The Explanatory Note provides, in the usual way, that it is not part of the Regulations and then states:

"These Regulations amend the Working Time Regulations 1998 which implement Council Directive 2003/88/EC (OJ No. L229, 18.11.2003, p.9). They confirm for the avoidance of doubt that the definition of offshore work includes work performed in the British Sector of the Continental Shelf (except in an area of part of an area of the Continental Shelf in which the law of Northern Ireland applies), as well as that performed within the territorial waters of the United Kingdom adjacent to Great Britain."

The Continental Shelf

15. The present case requires a broad understanding of the meaning and nature of the UKCS. The starting point is to note that the territorial waters of the United Kingdom extend and have, since 1987, extended to a distance of 12 nautical miles from the land. Put briefly, the UKCS are those areas of sea bed and subsoil beyond the territorial waters over which the UK exercises sovereign rights of exploration and exploitation of natural resources. Its exact limits are from time to time set out in orders made under s.1(7) of the Continental Shelf Act 1964. Continental Shelf (Designation of Areas) Orders promulgated between 1964 and 2001 have, accordingly, designated areas outside the territorial waters of the United Kingdom within which its rights in respect of the sea bed, subsoil and their natural resources may be exercised.
16. I was advised that the extent of the UKCS involved in the relevant locations in the present case in terms of distance from land was something approaching 200 miles, clearly a substantial distance beyond the limit of the territorial waters.

The Tribunal's Judgment

17. The tribunal held that WTR did apply to employment on installations located on the UKCS, despite there being an absence of express reference to the UKCS within them. Its

judgment was:

"that the Working Time Regulations 1998, as amended by the Working Time (Amendment) Regulations 2003 apply to offshore work (as defined therein) performed in the United Kingdom sector of the continental shelf (other than an area or part of an area to which the law of Northern Ireland applies)."

The Chairman summarised his reasoning, at paragraph 81 of his judgment, as follows:

"a. that Reg. 1(2) does not define the territorial limits of the application of the Regulations;

b. that as the Regulations are in implement of an EU Directive they should be interpreted in such a way as to achieve the purpose of that Directive;

c. that the objective of the Directive was to extend the various protections as to working time to Community workers engaged in offshore work;

d. that such purpose could not be achieved without the Regulations applying on the continental shelf, where it is competent for the UK Parliament to apply legislation related to the operation of the extraction of minerals; and

e. such an application of the Regulations would not offend against the essential principles of the legislation."

It is also evident from comments made by the Chairman at, for instance, paragraphs 56, 60 and 70 that he was influenced by his own "private knowledge" that the overwhelming majority of offshore workers operating out of the UK were and are located in the UKCS. The principal issue for this tribunal is whether the tribunal below reached the right result as a matter of law. A subsidiary question arises as to the way in which it was reached and I will deal with that separately.

Submissions for Respondents on Appeal

18. The respondents' submissions on appeal reflected those presented to the tribunal. Mr Goudie QC, senior counsel for the respondents submitted that the relevant WTR applied, prior to 1 October 2006, to work performed on the Great Britain land mass, its inland waters and the United Kingdom (with the exception of Northern Ireland) territorial waters but did not extend to work performed on the UKCS or beyond at the time of the tribunal judgment.
19. Mr Goudie acknowledged that WTR had, since the tribunal hearing, been further amended so as to include a specific extension to the UKCS. In respect that the explanatory note to WTR stated that they are confirmatory, he submitted firstly that the note was only explanatory and not part of the regulations themselves and further that it simply begged the question as to what the position was before. Maybe the government did intend the regulations to extend to the UKCS and had blundered; that was not the point and was no reason for penalising the respondents if they had failed to achieve what they intended.
20. He submitted that the extent of an Act is the geographical area throughout which it is law. In the absence of any contrary indication, an Act is taken to extend throughout the United Kingdom but not beyond under reference to Bennion Statutory Interpretation 4^th Edition, section 106. In the present case, the extent is Great Britain which consists of England, Scotland and Wales: Bennion at section 116. There were two preliminary issues, namely (1) what was meant by "extend to Great Britain only"; and (2) what was the principle by which one determines to whom and/or to what the regulations apply.
21. Regarding what was meant by "extend to Great Britain only", Mr Goudie relied firstly on the fact that "Great Britain" was not defined in WTR. He added that it was not defined in the Interpretation Act 1978, and was not defined in the European Communities Act 1972, pursuant to which WTR were made and amended. Therefore it had its normal and natural meaning.
22. That meaning embraced, according to Mr Goudie (i) the GB land mass, (ii) GB inland waters, and potentially (iii) the whole or part of the United Kingdom territorial waters, but extended no further.
23. He then referred to the case of Duncan v Motherwell Bridge and Engineering Co. Ltd [1952] SC 131 where the inference was drawn from the fact that the Truck Act 1831 was declared to extend over the whole of Great Britain that it was intended to apply to acts done in Great Britain but not to acts done elsewhere. In particular he referred to a passage in the opinion of Lord Patrick at page 158 where he said:

"The Act is declared to extend over the whole of Great Britain, which means that the above statutory provisions apply to acts done in Great Britain but not to acts done elsewhere. This construction, which is the natural one, becomes the necessary one when it is seen that the ninth section makes it a criminal offence for any employer to enter into a contract or make any payment which the statute has prohibited, for it is a matter of principle that the Legislature shall not be presumed to have declared that which is done outwith the realm to be a criminal offence. The proper construction of the Act is that in contracts made in Great Britain it is illegal to insert terms which the statute has prohibited, and in the case of wages paid in Great Britain it is illegal to pay them otherwise than in the form and manner which the Act prescribes, and in each case the appropriate statutory consequences follow."

By way of development of the point, Mr Goudie drew attention to the fact that WTR were not solely concerned with civil remedies in that they also create criminal sanctions, including imprisonment, for breach of certain of the provisions (Regulation 29). Provisions as to rest which were relevant to the consideration of what leave was due and when it may or must be taken did impinge on areas of criminal liability. It followed that it was not sufficient that WTR be deemed to apply for the purposes of employment law as a civil remedy, it was also necessary to confirm the extent of application of the criminal law.

24. It was, he added, a fundamental principle of the law that there should be certainty, and that that should be particularly the case in respect of statutory provisions attracting criminal sanctions: Pianka v The Queen [1979] AC 107 at 118-122.
25. Mr Goudie also referred to the case of Earl of Lonsdale v Attorney General [1982] 1 WLR 887 where Mr Justice Slade said:

"I accept that the United Kingdom does indeed have sovereignty over the territorial sea and the seabed and subsoil thereof within these limits [in the Order of 1964]. However, it does not in my judgment follow that the expression "Great Britain," in the context of the Act of 1934, should now be construed as including territorial waters and the seabed and subsoil beneath them." Earl of Lonsdale v A.-G. [1982] 1 WLR 887 at 936-948 (4A)."

Mr Goudie accepted that Parliament can legislate beyond the territorial waters and had done so in respect of merchant shipping eg. Merchant Shipping (Hours of Work) Regulations 2002 SI 2002/2125 which, by Regulation 3, apply to any United Kingdom ship wherever it might be. Likewise, the extent of the legislative regime considered in Enriquez v Urquhart [2001] SLT 1320 was, he said, limited to the statutes considered by the Court and was of no assistance in defining the extent of the regulations.

26. Regarding the principle by reference to which one determines to whom and/or to what the regulations applied, the presumption was that legislation applied only in the territory to which it extended: Bennion section 128.
27. The courts gave effect, he said, to an Act of Parliament which in terms applied to foreign nationals outside the United Kingdom, thus the High Court of Justiciary in Scotland had jurisdiction over crimes committed within Scotland and furth of Scotland contrary to the British Territorial Waters Act 1878 and similar Acts such as the Sea Fisheries Act: Mortansen v Peters [1906] 8F(J) 93. However, the 'territory' to which the regulations extended was 'Great Britain' only which did not extend to the UKCS or beyond.
28. Moreover, he submitted, no contrary intention appeared. Therefore the regulations applied only to persons and matters within Great Britain. The question was as to what was meant by "persons and matters within Great Britain". The "persons" who must be "within" GB were both employees and employers. The "matters" which required to be also "within" Great Britain were the work which was being performed. That the employees (absent special provisions, as in the case of mariners) required to be performing their work "in" or "within" GB was confirmed by the decision of the Court of Appeal, on the Workmen's Compensation Act 1906, in Tomalin v S. Pearson & Son, Limited [1909] 2 K.B.61: the Act did not apply to an English workman in the employment of English contractors sent out by them to work for them abroad (the matter condition not satisfied even although the employee and employer conditions were).
29. Likewise, the matter condition was not, according to Mr Goudie, satisfied in the present case. Parties were agreed that the installations in respect of which the present applications had been brought were situated outside UK territorial waters. Therefore, even in the case of those claimants in relation to whom both the employee and the employer were satisfied, the subject matter condition was manifestly not satisfied. The regulations, by their plain terms, accordingly did not apply.
30. There was, he submitted, nothing in the regulations to imply an intention that they applied to persons and matters outwith the territory to which they expressly extended. There was no implication that there was no geographical limitation at all. There was no implication of any extension to the whole or part of the UKCS. Whilst it was in a different context, the geographical limitation in the field of unfair dismissal had been confirmed in Lawson v Serco Ltd [2006] ICR 250 HL. This meant that, per Lord Hoffman at paragraph 25, the paradigm case of the application of the regulations was Great Britain. He also referred to the decision of this tribunal in Anderson v Stena Drilling PTE Limited unreported EAT 17 August 2006.
31. Mr Goudie observed that the tribunal had rightly accepted, (paragraph 28) (page 16), but ignored the fundamental proposition that the consolidated Council Directive 2003/88/EC was not directly effective against any of the respondents, none of whom were emanations of the United Kingdom Member State. The tribunal had considered, however, (paragraph 29) (pages 16/17) that WTR fall to be construed in the light of that Directive even in relation to the question of the tribunal's jurisdiction. He submitted that that was wrong. Whether an employment tribunal, as a creature of domestic statute, had jurisdiction, was an exclusively domestic matter, to be determined as a preliminary issue. Its jurisdiction could not be extended by the Directive, which of itself gave no rights in this case to individuals. The tribunal's decision was contrary to the decisions of the Employment Appeal Tribunal and the Court of Appeal in Biggs v Somerset County Council [1995] ICR 811 and [1996] ICR 364 which were, he submitted, binding on the tribunal in the present case.
32. Reverting to the tribunal's judgment, Mr Goudie observed that the Chairman next proceeded to refer to the need to adopt a "purposive interpretation of the WTR" (paragraphs 37-44) (pages 19-21), the purpose of the Directive (paragraphs 45-61) (pages 22-26), the position concerning the UKCS (paragraphs 62-66) ...pages 26-28), and whether there was any significance in the undoubted fact that the Directive did not (expressly) extend to the UKCS (paragraphs 67-77) (pages 28-31). He then referred to the tribunal having concluded that the Directive nonetheless impliedly extended to the UKCS and if it did that, the prima facie meaning of the regulations was displaced.
33. Mr Goudie submitted that both of the tribunal's conclusions were wrong. He accepted that the European Court of Justice had held that the EU constituted a new legal order of international law for the benefit of which the member states "have limited their sovereign rights, albeit [within limited fields] in ever wider fields": van Gend en Loos v Nederlandse Tarief Commissie C-26/62 [1963] ECR 1 at 11. He accepted that there was an obligation to interpret domestic legislation implementing an EC Directive so as to accord with the Directive but referred to authorities to the effect that the obligation to do so extended only insofar as that was possible without distorting the meaning of the legislation: Webb v EMO Air Cargo Ltd [1993] 1 WLR 49 per Lord Keith of Kinkel, applying Duke v Reliance [1998] AC 618 and Marleasing SA v La Commercial International de Alimentation SA [1990] ECR 1 – 4135. He then developed a submission to the effect that it was not possible or appropriate to interpret the 2000 Directive in the present case so as to indicate an intention to cover the UKCS.
34. A Directive ordinarily was directed to Member States and that term, so he submitted, was not apt to include the UKCS, the latter being a point to which he returned on a number of occasions. When a particular Directive was intended to apply to the continental shelf in Europe of which UKCS is a part, express provision was made. He referred by way of example to Council Directive 95/21/EC concerning the enforcement in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control) at Article 2(4) which stated:

"'offshore installation' means a fixed or floating platform operating on or over the continental shelf of a Member State."

It was submitted that only where the aims and scope are clear from a Directive could a purposive interpretation of the related domestic regulations competently be made. It followed from that that the respondents submitted that R v Secretary of State for Trade and Industry ex parte Greenpeace Ltd [2000] 2 CMLR 93 was wrongly decided where it purported to do so.

35. Alternatively, the case was confined to its particular circumstances and the context of the fisheries cases which it relied upon and which were discussed in Officier Van Justitie v Kramer & Ors C-6/76 [1976] ECR 1279 where it was said that a wider rather than narrower geographical scope should be given, inter alia because of "the very nature of things".
36. However, the scope of the regulations fell to be determined by the ordinary rules of interpretation and there was no scope for purposively interpreting the Directive to create an obligation on the member state when it was left to the member state how to introduce its obligations under the Directive in the first place. Moreover, when the Directive was not adequately transposed into the domestic law of a member state, the European Commission, or others could and do take action against the proper party, namely the Member State. Reference was made to the decisions of the European Court of Justice on 17 November 2005 in Case C-22/05, Commission v Belgium (Re Working Time Directive); Case C-73/05, Commission v France (Re Directive 2000/34/EC); Case 484/04, Commission v United Kingdom (Re Working Time Directive) and R v Attorney General for Northern Ireland, ex parte Burns [1999] IRLR 315.
37. If, however, it was open to the tribunal to consider the Directive in relation to jurisdiction and it extended to the UKCS, the question that then arose was whether, even applying a purposive interpretation, but bearing in mind that the Directive was not directly enforceable against the respondents, the regulations required to be interpreted so as to extend to the UKCS. They did not, he submitted, because, firs, when health and safety and employment protection legislation is intended to extend to the UKCS express provision is made and secondly, that an implied extension went beyond even purposive interpretation.
38. Mr Goudie submitted that both in 1998 and, a fortiori, in 2003, the draftsman had available to him numerous precedents for express extensions of particular health and safety, discrimination and employment protection to the UKCS. In particular, he referred to: The Race Relations (Offshore Employment) Order 1987, SI 1987/929, Regulation 2; The Sex Discrimination and Equal Pay (Offshore Employment) Order 1987, SI 1987/930, Regulation 2; The National Minimum Wage (Offshore Employment) Order 1999, SI 1999/1128, Regulation 2; The Employment Protection (Offshore Employment) Order 2000, SI 2000/1828, Regulation 2; The Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, Regulations 6(2) and 9(4); and The Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/1661, Regulations 6(2) and 9(4). The draftsman would also in 1998 and in 2003 have been aware of the widely discussed decision of the Employment Appeal Tribunal in Addison v Denholm Ship Management Limited [1997] ICR 770 in which it was held that TUPE does not apply to the UKCS.
39. It was, he said, further to be noted that the draftsman has habitually in the case of health and safety legislation drawn a contrast between Great Britain and areas, such as the UKCS, outside Great Britain. He referred, in particular, to The Health and Safety at Work etc Act 1974 (Application outside Great Britain) Order 1989, SI 1989/840 ("the 1989 Application outside Great Britain Order"), Articles 2(1), 3(1), 4(1) and (2); The Offshore Installations (Safety Case) Regulations 1992, SI 1992/2885, Regulations 2(1), 3(1); The Health and Safety at Work etc Act 1974 (Application outside Great Britain) Order 1995, SI 1995/263 ("the 1995 Application outside Great Britain Order"), Articles 2(1), 3(1), 4(1) and 4(2); The Offshore Installations and Pipeline Works (Management and Administration) Regulations 1995, SI 1995/738, Regulation 2(1), 3 and 4(1); The Offshore Installations (Prevention of Fire and Explosion, and Emergency Response) Regulations 1995, SI 1995/743, Regulations 2(1) and 3(1); The Diving at Work Regulations 1997, SI 1997/2776, Regulations 2(1) and 3(2); The Health and Safety at Work etc Act 1974 (Application outside Great Britain) Order 2001, SI 2001/2127 ("the 2001 Application outside Great Britain Order"), Regulations 2(1), 3 and 4; and The Offshore Installations (Safety Case) Regulations 2005, SI 2005/3117 ("the 2005 Regulations"), Regulations 2(1) and 4(1).
40. Mr Goudie submitted that were the Employment Tribunal decision to be correct, those express provisions relating to jurisdiction within the UKCS will have been unnecessary. Such a conclusion defied common sense. Further the new regulations which came into effect on 1 October 2006 followed the pattern referred to above by extending the Regulations specifically to the UKCS, and the clear implication of their being so promulgated was a recognition that the 2003 amendment did not have that effect.
41. Regarding the possibility of an implied extension of WTR to the UKCS no authority held that any health and safety or employment protection legislation extended to the UKCS absent express reference therein to the UKCS and the obligation to interpret domestic legislation implementing an EC Directive so as to accord with the Directive applied "only if that can be done without distorting the meaning of the domestic legislation" (Webb v Emo Air Cargo Ltd [1993] 1 WLR 49, per Lord Keith of Kinkel at 59, applying Duke v Reliance [1988] AC 618, at 639/640, and Marleasing S.A. v La Comercial Internacional de Alimentacion S.A. [1990] E.C.R. 1-4135 at paragraph 8; Pfeiffer v Deutches Rotes Kreusz C – 197/01[2004] ECR 1-8835 ECJ). The ET's decision went beyond what was "possible" as a matter of interpretation and impermissibly distorted the meaning of the domestic legislation. Further there was no basis upon which the tribunal could properly conclude, on the basis of the Directive, that there was a geographical limitation upon WTR.
42. A submission to which Mr Goudie returned on a number of occasions was that where the national law cannot be applied without distortion then provided the "Francovich" conditions were fulfilled (Francovich &c v Italy [1991] ECR 1-5357) it is for the member state to make good the damage suffered, in the present case, the UK government (Faccini Dori v Recreb Sri C-91/92 [1994] ECR 1-3325 ECJ). The individual cannot rely on the Directive itself.
43. Mr Goudie submitted further that the strong interpretative obligation described in Gaidan v Godin-Mendoza [2004] 2 AC 557 HL where the right was clearly expressed in the ECHR and was accordingly applicable under the Human Rights Act, did not alter the position in the present case where the geographical area of application had not been delineated in the Directive and the words in the regulations could not be interpreted in the way the tribunal had done without distortion.
44. Also, the tribunal's decision gave an even more exorbitant reach to the regulations by allowing the claims to proceed by Saleh, Spalding and Harkins against Stella Drilling Limited. They were employed on the Stena Dee. It is and, at the relevant time was, as parties agreed, located beyond the UKCS.
45. The OILC claimants, in their written submission, advanced an argument that the effect of the regulations was to impose no limit to the application of the regulations at all. Mr Goudie's response to that was that it was a preposterous proposition. Further, they were not in fact carrying out an exercise in interpretation, but were advancing two contradictory possibilities.
46. In conclusion, Mr Goudie submitted that it could be speculated that the regulations and/or the amendments thereto, had been ineptly drafted. A fundamental principle in law was, however, certainty. All who may be subject to a provision are entitled to expect clarity when assessing whether or not that provision may apply to them. The tribunal decision necessarily prevented that certainty, which was unacceptable generally but particularly so where failure to comply with relevant provisions attracted criminal sanctions as well as civil remedies.
47. The respondents, who were not an emanation of the UK State, were entitled to take the regulations as they found them. The Tribunal was bound to do the same. It was not for a tribunal to seek to correct such ineptness of drafting, assuming that that was what had occurred. The tribunal were correct to note that they should not have to look beyond the words of WTR. There are undoubted limits upon the extent to which what the regulations plainly say can be disregarded or reworded in the name of interpretation. The claimants were seeking to go beyond those limits and to blur the distinction between purposive interpretation and direct effect, and the tribunal erred in law by doing so.

Submissions for the Claimants on Appeal

48. On behalf of the claimants Mr Stafford submitted that WTR applied to workers on rigs on and over the UKCS prior to the coming into force of the 2006 regulations. Paragraph 1(2) of WTR as in force at the relevant time described their extent in the sense of the geographical area within which they were law but it did not describe their application namely, the persons and matters to which the law applied. Their application derived from the substantive provisions of the statutory instrument and not from paragraph 1(2).
49. It was necessary to have regard to WTR in order to identify the objectives of the Directive, and in order to identify the result sought by the Directive. It was submitted that the intention of the UK government in enacting the amended regulations in 2003 was to fulfil its obligation to transpose the Directive into the law of England, Scotland and Wales, that it had successfully done so and that WTR covered the UKCS.
50. Under reference to the respondents' submissions, Mr Stafford disavowed any intention of seeking to argue that the Directive had direct effect. Also, he submitted that the proper interpretation of the regulations did not depend upon, nor was it assisted by, the existence or absence of a "Francovich" claim which the employees might or might or might not have against the UK government.
51. Mr Stafford noted and relied on two concessions made by the Appellants namely that they accepted that the UK government can legislate over the UKCS and that the EU can legislate over the UKCS.
52. He then turned to Bennion at sections 128 and 103 in support of a submission that ordinarily the extent and application of an enactment will be the same but whether that is so depends upon whether or not there is to be found a contrary intention. The rule of interpretation set out in Bennion at section 128 did not prescribe any particular means by which the presumption must be rebutted. The contrary intention could be shown by express words, but it need not be shown in that way. It was sufficient if a proper interpretation of the enactment revealed the contrary intention.
53. It follows from that, he said, that a section in an enactment which described the extent of the legislation may have little or nothing or to do with the application of the enactment. The clearest example of that was perhaps to be found in the recent amendment to WTR enacted in 2006. The provision describing the extent of WTR had nothing to do with their application, which is described elsewhere within the statutory instrument. There was no adverse inference to be drawn from the fact of the amendment. It did not show that the legislature considered the 2003 regulations to have been defective. It was more likely that it showed that the legislature intended that, for the future, there should be no more wrangling about the application of WTR to work on the UKCS.
54. It was submitted that the original WTR showed that the presumption on which the respondents relied was rebutted from the outset. The contrary intention to which Bennion referred in section 128 was apparent even in the earliest version of the regulations.
55. WTR, as originally enacted, did not apply to "all persons and matters" within Great Britain. This was shown by looking at the original version of the regulations. He referred to paragraph 18 which set out a number of excluded sectors. The exclusions would have been unnecessary if paragraph 1(2) covered both extent and application. Paragraph 1(2) was used by the draftsman to cover only extent.
56. Further, the exclusions found in paragraph 18 derived from the original EU Directive.
57. Thus, the provisions of the regulations as originally enacted revealed an intention that the application of the enactment was not to be found in the provision which described its extent.
58. If that was correct, then an implication of the respondents' argument was that paragraph 1(2) had changed its purpose. Whilst originally describing extent alone, on the respondents' case, this provision was then used by the draftsman to describe both its extent and application. Thereafter, in the 2006 regulations, it was clearly used only to cover extent.
59. Mr Stafford referred to the Seafarers' Directive which put on a legislative footing an agreement between the shipowners' trade organisation and the relevant trade union so as to eliminate their exclusion from the operation of the Working Time Directive. Two operative parts of it were noteworthy, firstly, clause 1 which demonstrated that the Directive was to apply to seafarers on every seagoing ship "... which is registered in the territory of any Member state ...". Thus, there was a clear indication that this Directive was an exercise in the EU's legislative reach going beyond the landmass and territorial waters of Member States. Then, clause 16 was relevant; it enshrined the entitlement of seafarers to four weeks' annual leave.
60. He then referred to the EU having next promulgated, in 2000, the amended Working Time Directive. This was the Directive which the UK Parliament was implementing when it passed the amended regulations in 2003. It revealed that the purpose of the EU was: (a) to protect the health and safety of workers by regulating their working time; and (b) to do so across the broadest range of activities within the EU's legislative reach, which could include not only territorial waters but also the UKCS.
61. It was submitted that, having regard to the terms and legislative history of the Working Time Directive, there was no warrant for construing this 2000 Directive as excluding activities undertaken on the Continental Shelf of Member States. At the time the 2000 Directive was issued, the EU was, it was submitted, well aware that there was offshore work being carried out on the Continental Shelf and that it had defined offshore installations elsewhere. In Council Directive 95/21/EC, the EU had legislated in relation to the health and safety of people working on ships. It legislated broadly, so as to bring within its legislative reach ships anchored at or calling at "... an off-shore installation ..." (Article 3(1)). It had defined "off-shore installation" as "a fixed or floating platform operating on or over the continental shelf of a Member State" (Article 1(4)). The EU knew from 1995 at the latest that there were off-shore installations operating over the Continental Shelf of Member States. Thus, when in 2000 an amended Directive defined "off-shore work" by referring to "off-shore installations", the EU was using a term which had already been used in another health and safety measure. Moreover, it was using a term - "off-shore installation" - which had been defined by reference to the Continental Shelf, and was defined in a way which was entirely consistent with the wide legislative reach at which the amended Directive was aimed. The reference within the 2000 Directive to "off-shore installations" should be interpreted to mean what the EU had said it meant in Council Directive 95/21/EC, a proposition responded to by Mr Goudie with the submission that it was not possible to take a definition from one European Directive and import it into another
62. The legislative purpose and intent of the EU was, it was submitted, very clear:

a. All land based workers were covered by the amended Working Time Directive;

b. All seafarers (as defined by the 1999 Directive) were covered by their own Directive;

c. All workers on sea-going vessels which fell outside the ambit of the 1999 Directive were covered by the amended Working Time Directive;

d. All off-shore workers were covered by the amended Working Time Directive.

63. The EU had made plain that its purpose was to eliminate excluded sectors not to create an inexplicable anomaly.
64. It was further submitted that the clarity with which the EU spoke in the amended Directive makes it highly implausible that a UK Parliamentary draftsman, familiar with rules of statutory interpretation, would have left Regulation 1(2) unamended if he had regarded it as describing the application of the regulations as opposed to its extent.
65. According to the claimant's submission, the original version of the regulations showed that the presumption that paragraph 1(2) of the regulations described both extent and application had been displaced. Thus, the application of the regulations derived not from paragraph 1(2) but from other parts of the regulations. Since it described only the extent of the regulations, it did not need to be amended. What needed to be amended to increase the application of the regulations were those parts which had described the application. That was what the draftsman had, accordingly, done.
66. He submitted further that having regard to the clarity with which the EU had spoken, if the UK draftsman had failed to transpose the amended Directive successfully, that could only be ascribed to error and not to legislative intent. That was significant because the respondents had at times proceeded as if the alleged failure of the draftsman was a matter of legislative intent. The implication of the citation by the respondents of statutory instruments in which the application was extended to the UKCS by express wording was to suggest that the draftsman chose not to use express wording because it was never intended that the regulations should cover the Continental Shelf. However, there was no single prescribed means which a draftsman must use to reveal the contrary intention, to rebut the presumption. In the present case, the draftsman was presented with an original enactment in which the extent and application were different. He left the provision which dealt with the extent alone (because it did not need amending) and amended that part of the original enactment which had limited the application of the regulations.
67. Further, the UK draftsman was implementing a Directive which aimed to cover off-shore work taking place on the UKCS. He was implementing a Directive which aimed to eliminate all exclusions from the coverage of the Working Time Directive. Moreover, the legislative reach of the amended regulations was made clear, not only by its inclusion of off-shore work, but also by reference to paragraph 18 of the regulations which made it clear that the regulations did not apply to seafarers covered by the Seafarers' Directive (Council Directive 1999/63/EC), nor to workers covered by the Fishing Vessels (Working Time: Sea Fishermen) Regulations 2004. Those were sectors of activity which can and do take place beyond the landmass and territorial waters of Great Britain. Those parts were present within the amended regulations because Parliament appreciated that, without these exclusions, those sectors would fall within the ambit of the amended regulations. That was a clear signal from the domestic legislation that it regarded the amended regulations as applying outside territorial waters.
68. It was also submitted that the court was entitled to have regard to EU Directives when interpreting the regulations. It made no difference whether the court was interpreting the regulations to decide whether the tribunal had jurisdiction, or to decide whether the employees had a good case on the merits. The EU materials relied on by the claimants revealed with, it was said, overwhelming clarity the purpose of the 2000 amending Directive - that workers should be protected from the perils of overwork wherever they may be within the EU's legislative reach. Interpretation so as to "go with the grain" of the directive, to use Lord Rodger's dictum in Ghaidan, meant that there could be only one answer. It should be interpreted to apply to persons and matters located on the UKCS. That would not involve impermissible distortion.
69. If, however, it was necessary to look at how a purposive interpretation could be operated, then reliance was placed upon the Greenpeace case and upon Litster. In the former, the UK enactment expressly stated that it applied only up to the territorial limit (see page 296, column 1). Nevertheless, the High Court held that, on a purposive interpretation, this should be construed to mean more than the territorial waters, and extended to the Continental Shelf. In the latter, the House of Lords held that a provision of TUPE 1981 should be read as if additional words had been added. It was submitted that, should a purposive construction be required, those examples demonstrate that the court had ample flexibility to construe the regulations so as to extend beyond territorial waters to the Continental Shelf.

Submissions for OILC Claimants on Appeal

70. As I have indicated, these claimants lodged written submissions. Apart from an argument that one possible interpretation of the WTR was that they implied no territorial or geographical limitations at all, they were broadly to the same effect as those advanced on behalf of the other claimants. They also added the submission that EU law was not limited in scope or effect to the landmasses, internal waters, territorial seas of or the Continental shelf adjacent to member states; if it were then that would have the effect of invalidating a "whole slew" of both EU and national legislation passed under and in terms of the European Communities Act 1972. No authority from the European Court of Justice suggested that the EU law provisions were so limited. EU could and did operate extra-territorially.

Discussion and Conclusion

71. This case turns on the interpretation of WTR and the question that is central to the resolution of the issue between parties is whether, in declaring in paragraph 1(2) that:

"These Regulations extend to Great Britain only."

the WTR are referring not only to the extent of the reach of the legislation but also to its application. If they are, none of the claimants are entitled to the protection of WTR and the appeal succeeds. In this context "extent" concerns the legal system or systems in which cognisance is to be taken of the legislation, the geographical area throughout which it must be recognised as law (see e.g. Bennion, section 103; Enriquez v Urquhart). The term "application" is used in the sense of the persons and matters which are affected by its provisions (see e.g. Bennion, section 128).

The terms of WTR

72. As a starting point, I accept that the principle articulated in section 128 of Bennion applies, namely that:

"unless the contrary intention appears"

any legislative enactment applies to all persons and matters within the territory to which it extends but not to any other persons or matters. Thus, at first blush, a statement in an enactment that it extends only to Great Britain would seem to indicate that it is to be regarded as binding law in England, Scotland and Wales (but not Northern Ireland) and applicable to all persons within its landmass in respect of matters occurring or which have occurred or are situated within its landmass.

73. In the case of the WTR, as was conceded by the respondents, a contrary intention is immediately noticeable in respect that since August 2003, they have referred to "offshore work" which clearly takes their application beyond a restriction to the landmass. Two possible approaches then arise. One is an approach which views paragraph 1(2) as still being the only provision in the WTR within which their extent and application can be found. If that approach was followed then "Great Britain" is simply taken to mean Great Britain including its territorial waters. The other approach is to read the regulations as the claimants read them, namely in a manner which regards paragraph 1(2) as dealing only with extent and then looking elsewhere to identify their application.
74. If the latter approach is followed, it is evident that from the outset in the history of WTR, specific provision has been made for sectors of economic activity which are excluded from their application. That shows that the draftsman took the view that without specific exclusion, all sectors functioning within the jurisdiction of member states would have been covered. In the first set of WTR (SI no. 1833 of 1998), "sea fishing" and "other work at sea" were excluded. That was at a stage prior to the extension of the WTR to "offshore work", a stage at which it might, on the "first blush" approach to which I have referred, have been thought that the paragraph 1(2) provision was such as to restrict the application of WTR to the landmass of Great Britain. That would have been on the basis that the purpose of paragraph 1(2) was to state not only the extent but also the application of the enactment. But if that had been the case, the draftsman need have had no concern that without the paragraph 18 exclusions, the regulations would have applied to activities beyond the landmass such as sea fishing or other work at sea. Thus, the indication is that the purpose and function of paragraph 1(2) was to state only the extent of WTR leaving their application to be found elsewhere.
75. Moving then to WTR in the form into which they were amended in terms of SI no. 1684 of 2003, paragraph 18 still provides for excluded sectors but the nature of the sectors excluded has changed. The reason for that is plainly because it is evident from the inclusion in the interpretation provisions of a description of "offshore work" that the "other work at sea" exclusion was no longer appropriate. But does it show that the inclusion of that sector took the application of WTR only as far as work carried out within territorial waters?
76. I think not. First, since the United Kingdom has jurisdiction in certain respects over the designated areas of the UKCS, it is quite possible for a statutory instrument to apply to activities carried on there. Secondly, I am satisfied that there is a clear indication from the inclusion of paragraph 18 in the original WTR that there was never any intention that paragraph 1(2) be regarded as a statement of both their extent and application. Their extent is limited to Great Britain but that is not to say that their application necessarily suffers a similar limitation. Between 1998 and 2003 it was limited, certainly so far as offshore work was concerned, but that was achieved not through the mechanism of paragraph 1(2) but through the mechanism of paragraph 18.
77. After August 2003, the paragraph 18 mechanism changed so as to remove the limitation so far as offshore work was concerned. Was there then anything in the regulations indicative of an intention to restrict the offshore work in question to only such work as was carried out within territorial waters? The respondents point to paragraph 1(2) but paragraph 1(2) had previously been shown as dealing only with the extent of the regulations, not their application and there was nothing to indicate that its function had changed at the time of the amendment on a reading of either the original or amended (as at 2003) regulations. It must then follow that the intention was to cover all offshore work within the jurisdiction of the UK, not simply such work as was carried out within territorial waters.
78. Further, still considering WTR alone, I take account of the terms of the recent 2006 amendment. It plainly cannot now be suggested that paragraph 1(2) is indicative of both the extent and application of WTR since the amendment to paragraph 2 makes it clear that their application goes beyond Great Britain and its territorial waters and into and over the UKCS. Yet the style and format of the regulations remains unchanged. Had it been that paragraph 1(2) was for some reason, in the period between August 2003 and 1 October 2006, intended as a statement of both extent and application, a different approach to amendment could have been expected. There is also the matter of the Explanatory Note. Whilst Mr Goudie rightly drew attention to it being only a note and not part of the regulations themselves, it is quite plain from the terms of the note that the Parliamentary intention prior thereto had been that the WTR should apply to the UKCS following the 2003 amendment. That is not conclusive of the issue but it seems to me that it is at least an adminicle which can properly be taken into account and it is one that points away from it having been the intention of Parliament that application be restricted to Great Britain and its territorial waters at that time.
79. Reverting then to the principle and presumption set out in section 128 of Bennion, it seems to me that on a reading of WTR alone, it is evident that Parliament did have an intention contrary to the norm whereby the application of an enactment coincides with and is confined to its extent. Further, for the reasons I have given, I am satisfied that that intention was not to confine their application to the territorial waters around Great Britain; an intention, rather, that they apply where the UK exercises jurisdiction is evident.
80. I should add that I do not consider that authorities such as Duncan v Motherwell Bridge Engineering or Tomalin v Pearson point to any different conclusion. Whilst they are examples of it being found that legislation did not extend to the activities abroad of employees of domestic businesses, they concern the interpretation of different legislation, the Truck Acts on the one hand, and the Workmens' Compensation Acts on the other hand whereas the task in this case is to interpret WTR. Similarly, I do not find that Lawson v Serco provides relevant guidance, turning as it did on the interpretation of, in effect, an absence of provision in the Employment Rights Act 1996 save so as to illustrate that a consideration of the history of the legislation that requires to be interpreted can be of assistance.
81. Mr Goudie also relied heavily on the fact that, in a number of pieces of subordinate legislation, the draftsman has made express provision for extension to the UKCS or has expressly distinguished it. There is no doubt that matters would have been much simpler if the draftsman had adopted such a style in the case of WTR. He could have done so. He did not do so. I do not, however, see that the persuasive force of the matters to which I have already referred is diluted by the fact that a different style has been adopted in other pieces of subordinate legislation.

The European Dimension

82. As I have indicated, it seems to me that the regulations fall to be interpreted as applying to work carried out on the UKCS without having resort to their European origins. Equally however, when that is done, it is plain, in my view that it would be quite wrong to afford them the restrictive interpretation for which the respondents contend.
83. WTR represent Parliament's response to two European Directives, neither of which, as parties were agreed, had direct effect. Before considering their effect, if any, on the interpretation of WTR, I should deal with the respondents' submission that consideration of the meaning and effect of the relevant Directives is not relevant to the question of whether or not the tribunal has jurisdiction. I do not read the case which Mr Goudie cited (Biggs v Somerset County Council) as being authority for that proposition. Whilst it contains an observation that, as is well known, the European Court of Justice have observed that it is for the domestic legal systems of member states to designate which courts have jurisdiction and in what manner, it does not suggest that it is impermissible to take account of an underlying Directive when interpreting domestic legislation for the purposes of identifying whether or not jurisdiction exists. Were it so, then Neill LJ might have been expected to refrain from commenting as, at p.376, he did:

"Furthermore, the time limit itself does not offend Community law …".

I accordingly reject the respondents' submission that when considering the question of whether or not the tribunal has jurisdiction, it is not permissible to consider the relevant Directives.

84. Further, I am not convinced that the issue in this case can properly be characterized as one concerning the jurisdiction of the tribunal. Paragraph 30(1) of WTR provides for claims arising out of alleged breaches of those regulations to be presented to the Employment Tribunal. There can be no doubt that these claims allege breaches of those regulations and are covered, accordingly, by paragraph 30(1). The tribunal has, on the face of it, jurisdiction. The tribunal's jurisdiction to adjudicate on allegations of breaches of the regulations is not in issue. The issue is in fact that of whether or not these respondents are in breach of those regulations. The first reason advanced by them in response to the claims is that they are not in breach because the regulations did not apply and therefore questions of their compliance do not arise. That is not a question of the jurisdiction of the tribunal; it is a question of the application of the regulations. For these reasons also, I reject Mr Goudie's submission that consideration of the underlying Directives is not permissible.
85. Regarding the thread in Mr Goudie's submissions to the effect that the Directives could not have had the UKCS in mind because they were addressed to Member States, I reject that submission also. Whilst he is correct to observe that the Continental Shelf does not fall within the territory of member states, those with coastal regions may have jurisdiction over it. As noted, the jurisdiction of the UK over its Continental Shelf flows from the provisions of the Continental Shelf Act and its subordinate legislation that has, over the years, designated the geographical extent of that jurisdiction. I see no reason for regarding the relevant Directives as excluding areas over which Member States have jurisdiction just because they do not lie within their territory. Where Member States have jurisdiction, there must be potential, from the European standpoint, for practical effect to be achieved there and it is difficult to see why the EU would refrain from taking advantage of that fact.
86. Turning to the various Directives to which reference has been made, firstly, to Directive 95/21/EC, I am persuaded that it is relevant to consider its provisions even although they have no direct bearing on the Working Time Directives. It concerns ship safety standards, pollution prevention and shipboard living and working conditions and makes provision for the inspection and detention of ships calling at "a port of a Member State or at an off-shore installation" (Article 3), a matter of some importance given the stated objective:

"... to help drastically to reduce substandard shipping in the waters under the jurisdiction of Member States."

In Article 2, "offshore installation" is defined as meaning:

"a fixed or floating platform operating on or over the continental shelf of a Member State".

Thus, as at 1995, the EU not only knew that offshore installations were situated on or over the continental shelf but did not, it seems, envisage those that lay within the jurisdiction of member States being anywhere other than there. In particular, they do not appear to have envisaged that they would be situated in territorial waters, no requirement to inspect ships calling at offshore installations situated there being provided for. Taking cognisance of that evident knowledge does not, in my view, involve transporting a definition contained in one Directive into another, as was suggested by Mr Goudie. Rather, it is a relevant historical fact in the background against which Directive 2000/34/EC was made. Just as Lord Hoffman, in Lawson v Serco considered it appropriate to take account of the historical fact of the prior importance that Parliament had attached to the place of work in the now repealed section 196 of the Employment Rights Act 1996 (see paragraph 11), I consider it appropriate to take account of the EU's prior state of knowledge as to the positioning of offshore installations.

87. Turning then to the Directives relating to working time, their progress was from a position where, in 1993, a significant number of sectors of working activity were excluded from EU direction, to one where by 2000, it was considered that that position was untenable. It did not accord with the original Commission proposal, the European Parliament had not accepted the restrictions in its Opinion of 20 February 1991 and it ran counter to the principle that the health and safety of all workers should be protected because they are workers at work, not because they work in a non-excluded sector. Amendment to the original Directive so as to produce a result whereby all sectors were covered had to be effected if its true objectives were to be achieved. Seafarers are excluded but the provision in Directive 2000/34/EC stating that it does not apply to seafarers makes sense. There was, by then, no need for it to do so because by that time, provision had been made for their protection in terms of Directive 1999/63/EC. It is the only exclusion. There are no other exclusions of persons or matters over which member states have jurisdiction. The plain intention of the European draftsman was, in my view, that work on all offshore installations situated in areas where Member States have jurisdiction should be covered. There is no evidence of an intention to restrict the application of Directive 2000/34/EC and that is against a background of, as I have indicated, there being evidence of EU knowledge that offshore installations are situated on and over the continental shelf.
88. Regard then requires to be had to the principle that the courts in the UK should construe domestic legislation in any field covered by a Community Directive in the light of the wording and purpose of Directive so as to achieve the result intended by the Directive if that can possibly be done without distorting its meaning: Webb v EMO Air Cargo Ltd; Duke v Reliance; Marleasing S.A v La Comercial de Alimentacion S.A. As I have indicated, I am of the view that on a full consideration of the underlying Directives, their purpose was that they should apply to all workers working within the jurisdictions of member states apart from those few who were specifically excepted from their reach. It is not at all difficult to read WTR as amended in 2003 as similarly applying to all workers working within the UK jurisdiction, including the UKCS, as being entitled to the protections afforded by them. To do so does not involve any question of distortion of apparent meaning once it is borne in mind that paragraph 1(2) deals only with extent and not application. Indeed, there would seem to be much less difficulty involved than was faced by the court in the Greenpeace and Ghaidan cases.

Tribunal's Knowledge and Assumptions

89. Separately, I should deal with a matter that arises from the discussion in the tribunal's judgment at paragraphs 56 and 60, not that, in the event, it affects the outcome of the appeal. In the former the tribunal states:

"… it must be right to assume that those who framed this Directive were aware and took cognisance of certain facts which are widely and publicly known to anyone with even a slight acquaintance with the offshore oil and gas industry as it operates in the North Sea. It can surely be assumed that both the Commission and the ESC were aware of the fact that practically all "offshore work" is carried out on the continental shelf and not in territorial waters. On that assumption it seems inconceivable that it would have been the purpose of the Directive to restrict its ambit to areas where there are practically no offshore installations – i.e. to exclude the very area where the vast majority, if not all of such installations are active in the exploration for and production of oil and gas, namely the continental shelf."

and in the latter:

"I think it is permissible for me to take cognisance of not only the facts which are admitted for the present proceedings but also of those which are widely and publicly known. Such are perhaps particularly notorious in the North- East of Scotland which has had an inescapable association with the offshore oil and gas industry for so many years now. Accordingly, not only is it the case according to the agreed facts that all the present claimants are engaged in work on offshore installations outside UK territorial waters but in the UK sector of the continental shelf; but also it is not a matter of only my private knowledge that the overwhelming majority of all other offshore workers operating out of the UK … are similarly located on the same work."

It is, accordingly, evident that the tribunal was influenced, in its interpretation of the regulations by assumptions as to what it considered must have been known by the European legislators, what it considered must have been known by anyone who knows anything about the oil industry and by its own knowledge as to the way in which that industry operates. However, that which may seem obvious to one person may not be obvious to another; it all depends on their underlying state of knowledge and experience. With all due respect to the encyclopaedic knowledge and deep and respected understanding of the oil industry possessed by the Chairman – a matter which is within my private knowledge – I cannot agree with him that it is appropriate when interpreting legislation to allow private knowledge and assumptions of the type made in this judgment to be taken into account. Evidence of actual knowledge and understanding on the part of the legislator is a different matter; hence the legitimacy, in my view, of bearing in mind the European knowledge of the positioning of oil installations on and over the continental shelf as evidenced by the terms of 95/21/ EC, referred to above. The tribunal, in the above passages, was not, however, referring to evidence of actual knowledge.

The Saleh, Spalding and Harkins cases

90. These three claimants were employed on an oil installation situated beyond the UKCS. Whilst I am satisfied that WTR apply to the territorial waters of the UK and the UKCS, they do not, in my view, extend beyond that. Mr Goudie referred to the fact that these claims had been allowed to proceed and submitted that that showed that the tribunal's decision gave the regulations an "even more exorbitant reach". It does, however, seem clear that that was not what the tribunal intended since it expressly states that its finding is that the regulations should be regarded as applying not only to Great Britain and its territorial waters and to offshore work being performed in the UKCS but there is no suggestion of any finding that their reach goes any further. The failure to exclude these claims seems to be no more than oversight.

Disposal

91. I will accordingly allow the appeal so as to dismiss the claims at the instance of the claimants Saleh, Spalding and Harkins. Otherwise I will refuse the appeal, uphold the finding of the tribunal and remit to the tribunal to proceed as accords.