An employer that fails to comply with these consultation obligations may be ordered to pay each employee a protective award of up to one week’s pay for each week of the 90 day period. The affected employees, their unions or representatives can bring a claim (although where a union is recognised, they must bring the claim in the first instance).
A Guernsey registered company employed crew which it supplied to specialist ships owned and operated by other companies. A UK company dealt with employee administration. The crew, who were UK domiciled, were stationed all over the world for 4-6 weeks at a time and would return home at the end of each trip, but then tended to return to the same vessels in the same locations.
Four ships were taken out of service, so the crew working on those ships were no longer needed and more than 20 crew members were made redundant without following collective consultation rules. The trade union that had collective bargaining rights in respect of the employees brought claims for protective awards for failure to inform and consult with the UK domiciled employees.
The EAT could see no reason for making a distinction between collective and individual redundancy rights and confirmed that the territorial reach applicable to individual redundancy rights was also applicable to collective redundancy rights.
Factors the EAT considered were relevant to whether the crew members had a sufficiently strong connection to Great Britain included:
• they were domiciled in the UK
• their employment contracts were stated to be governed by English law
• the employer used a UK registered company to manage the employees
The redundancies were over four different ships and less than 20 crew members would be lost on each ship. This raised the question as to whether each ship was a separate “establishment”, so that the obligation to inform and consult, which is triggered when dismissing “as redundant 20 or more employees at one establishment” within a 90 day period, could be avoided. The EAT concluded that all of the ships in the fleet had to be considered together, forming one establishment as although generically, individual ships are capable of being establishments, in this case, each ship could not be said to be a distinct part of the employer’s undertaking. The following factors were taken into account:
– some employees were not attached to a particular vessel and transferred between them; and
– the UK administrator treated the employees as a group rather than in relation to each ship.
This case clarifies that individual employees working outside the UK who have a sufficiently strong connection with the UK, may have the right to be collectively consulted if their employer proposes to dismiss as redundant 20 or more employees at any one establishment, anywhere in the world, within a 90 day period. When considering whether an employee will have jurisdiction to bring an employment claim in the UK, the most important factor is whether the employee has ‘a strong connection to Great Britain’.
Seahorse Maritime Ltd v Nautilus International (A Trade Union) UKEAT/0281/16/LA