Hellyer Brothers Ltd v McLeod
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 25 February 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0225-6 |
| Docket Number | 87/0156 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 1987 |
[1987] EWCA Civ J0225-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
Royal Courts of Justice
Lord Justice Slade
Lord Justice Mustill
Lord Justice Ralph Gibson
87/0156
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL (MR. JUSTICE WAITE)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL(MR. JUSTICE FRENCH)
MR. JOHN SAMUELS Q.C. and MR. PATRICK HAMLIN (instructed by Messrs. Collyer-Bristow, London Agents for Messrs. Payne & Payne, Hull) appeared for the Appellants in the First Appeal.
MR. ALAN PARDOE and MR. RALPH WYNNE-GRIFFITHS (instructed by Messrs. Walter West, Grimsby) appeared for the Respondents in the First Appeal.
THE HON. JOHN MELVILLE WILLIAMS Q.C. and MR. JOHN PERRY (instructed by Messrs. Chambers Thomas, Hull) appeared for the Appellants in the Second Appeal.
MR. ALAN PARDOE and MR. RALPH WYNNE-GRIFFITHS (instructed by Messrs. Andrew M. Jackson & Co., Hull) appeared for the Respondents in the Second Appeal.
These are the judgments of the court on two appeals from orders of the Employment Appeal Tribunal. The judgment in the first appeal has been prepared by Slade L.J. The judgment in the second appeal has been prepared by Ralph Gibson L.J. In the first appeal the appellants are Mr. John Henry McLeod, Mr. Ivan Margerison and Mr. George Richard Kemp ("the first appellants"). The respondent is Hellyer Bros. Ltd. ("Hellyers"). By a majority decision of 30 October 1984, the Industrial Tribunal held that each of the three first appellants, together with Mr. William George Davis, were employed by Hellyers, that each was dismissed on 10 January 1984 by reason of redundancy and that each had sufficient continuous employment to bring his claim. The dissenting member of the Tribunal was the legally qualified chairman. By an order of 13 November 1985 the Employment Appeal Tribunal allowed an appeal by Hellyers from the order of the Industrial Tribunal. The first appellants now appeal to this court.
In the second appeal the appellants are Mr. Terence Arthur Wilson and Mr. Robert Edward Johnson ("the second appellants"). The respondent is Boston Deep Sea Fisheries Ltd. ("Bostons"). By a majority decision of 20 September 1984, the Industrial Tribunal similarly held that both the second appellants were employed by Bostons, that each was dismissed on 10 January 1984 by reason of redundancy, and that each had sufficient continuous employment to bring his claim. The composition of the Industrial Tribunal was the same as it was in the first appeal. In this case too the dissenting member was the Chairman. By an order of 29 November 1985, the Employment Appeal Tribunal allowed an appeal by Bostons from the order of the Industrial Tribunal. The second appellants now appeal to this court.
Each of the first and second appellants is or was a trawlerman based on the Port of Hall. The decision of the majority of the Industrial Tribunal that each of them was dismissed from employment on 10 January 1984 stems from the exceptionally heavy decline in its trawler fishing industry which that Port suffered from 1977. The policy of the European Economic Commisson, which was one of the factors contributing to this decline, included provision for trawler owners to take their fleets out of fishing commission in return for a payment by way of compensation. This step was taken by Hellyers and by Bostons (who are respectively the trawler owners concerned in the two appeals) on or about 10 January 1984. This led to claims by each of the appellants that he had been dismissed on that date and to corresponding claims for redundancy payments. We should say at once that in human terms each of them in our opinion deserves considerable sympathy.
In the case of each appeal the appellants had prior to January 1984 worked more or less exclusively for the respective respondents over a period or periods spanning more than two years, and in some cases nearly thirty years. Each of them had served on the terms of a series of "Crew Agreements" which they had signed upon engagement aboard a fishing vessel. By way of introduction it will be convenient at this point to refer to certain relevant statutory provisions.
With an immaterial exception, section 1(1) of the Merchant Shipping Act 1970 ("the 1970 Act") requires that a written agreement shall be made between each person employed as a seaman in a ship registered in the United Kingdom and his employers and shall be signed both by him and by or on behalf of them. Section 1(3) provides that the provisions and form of a Crew Agreement must be of a kind approved by the Department of Trade and Industry, and that different provisions and forms may be so approved for different circumstances. The Department has duly approved a standard form ("the standard Crew Agreement"), which bears the heading "Crew Agreement and List of Crew of a Fishing Vessel". Immediately below this heading there follows a statement that the form and provisions have been so approved under section 1(3) and that "if the form and provisions of this agreement are amended or clauses are added without the prior approval of the Department it will not be regarded as approved under the said section of the Act". Thus, the form must be rigidly followed, no more and no less.
The front page of the standard Crew Agreement contains the following headings, with spaces for insertion of the appropriate details: "Name of Fishing Vessel"; "Port of registry"; "Official Number"; "Name and address of registered owner"; "Registered length"; "Date and place of commencement of agreement and list of crew" (with a space also for the signature of the Master): "Date and place of termination of agreement and list of crew" (again with a space also for the signature of the Master).
On the second page of the standard Crew Agreement, under the heading "Contractual Clauses", there are set out the following standard clauses:
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"(i) THIS AGREEMENT is made between (name and address of employer) and each of the seamen whose names are set out in the list of crew incorporated in this agreement.
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(ii) IT IS AGREED THAT:
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the employer will employ each seaman and the seaman will serve in the capacity and at the rate of wages expressed against his name in the list of crew incorporated in this agreement;
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the vessel shall he employed fishing within the limits of…for a period which shall end not later than…or until the vessel first calls thereafter at its port of destination in the United Kingdom provided that if the agreement has not terminated within thirty days after the period of six months, the first call at port thereafter.
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(iii) After one voyage has been completed by a seaman under this agreement either the seaman or the employer may give to the other notice (in writing or orally before a witness) to terminate the seaman's employment under this agreement, such notice to take effect at a port in the United Kingdom and to be given not less than…hours (here insert time) either before the vessel is due to arrive at that port, or before it is due to sail, if the employment is to terminate at the port where the vessel is when the notice is given.
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(iv) (1) The parts of the local port industrial agreement dated…and made between…and…specified in paragraph (2) of this clause shall have effect in relation to each seaman who is of a description to which such agreement relates as if those parts were incorporated herein and shall have effect as they are set out in the local port industrial agreement at the date the seaman becomes employed hereunder, together with any amendments which are effective at that date, and together also, from the dates on which they become effective during the seaman's employment hereunder.
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(2) The parts of the local port industrial agreement referred to in paragraph (1) of this clause are those relating to pay (including poundage), hours of work, leave, discipline and times of payment or settlement of wages.
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(v) In relation to an individual seaman this agreement may be terminated:
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(a) by mutual consent;
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(b) by appropriate notice in accordance with the terms of this agreement.
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(c) by loss or total unseaworthiness of the vessel."
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The local port industrial agreement mentioned in Clause (iv) of the standard Crew Agreement has been represented at Hull by a document headed "The Hull Fishing Industry Association—Scheme of Registration for Trawl Fishermen". This has been supplemented by a memorandum negotiated in the industry between the owners and the unions and headed "Terms and Conditions of Employment applicable to crews of wet-fish trawlers operating from the Port of Hull", though it is not clear that this memorandum has ever been formally incorporated in the local port industrial agreement. Clause 3(i)(a) of the local port industrial agreement provides (inter alia) that no man shall be engaged by a member firm in membership of the Association as a trawl fisherman unless he is registered under this Scheme and in possession of a Fisherman's Service Book. The first appellants place some reliance on the contents of their Service Books, to which reference will be made later in this judgment.
By virtue of section 69(1) of the 1970 Act, except as provided by regulations made under that section, the master of every ship registered in the United Kingdom is obliged to make and maintain a list of the crew containing such particulars as may be required by the regulations. Regulation 13 of the Merchant Shipping (Crew Agreements, Lists of Crew and Discharge of Seamen) (Fishing Vessels) Regulations 1972...
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