Nicholas Siddall has recently appeared in the EAT decision of Hasan-v-Shell International & Ors addressing the scope of the Bleuse principle in the context of a UK based mariner dismissed aboard a foreign flag vessel in international waters. The EAT’s essential conclusions were:
(1) There was no authority which stated that the Bleuse principle and scope of the EU Race Directive applied outside the territorial scope of the EU;
(2) The wording of the Equality Act (Work on Ships and Hovercrafts) Regulations 2011 could not be qualified by the implied territorial scope of the Equality Act;
(3) The Appellant’s submission that there should be a reference to the CJEU as regards the territorial scope of the Race Directive was rejected.
Further as regards the Claimant’s claim of unfair dismissal the EAT held:
(1) No strained construction of Regulation 19(1)(a) of the 2004 Employment Tribunal Regulations would allow the Employment Tribunal to enjoy jurisdiction;
(2) The reference in Regulation 19(1)(a) to “the Respondent or one of the Respondents” required there to be an arguable claim against the Respondent within the jurisdiction.
The effect of the decision appears to resolve (for now) the controversy as to whether Bleuse can be prayed in aid as regards claims occurring outside the EU. Further it appears to suggest that Regulation 19(1)(a) is a greater barrier to the Employment Tribunal hearing international claims than appeared from the decision of Underhill J(P) in Pervez-v-McQuarie. The Appellant is currently considering whether to seek permission to appeal to the Court of Appeal.