Employment Law Provides No Lifebelt For Distressed Sailor

In November 2014, a tribunal judge dismissed an attempt by a former employment lawyer, Ruth Harvey to sue both the organisers of the Clipper Round the World Race for alleged harassment and discrimination. The case centred on the claimant’s involvement in the Clipper Round the World Race, of which Sir Robin Knox-Johnson is the founder. Although the case attracted mainstream media attention due to the fame of its founder, Sir Robin Knox-Johnson who was also named in the claim in that capacity (but not personally), legally it provides a useful reminder about the limits of employment law.

Why did the case fail?

The case failed on a number of legal points. The first and most important issue was whether Ms Harvey was in fact an employee. This was complicated by the fact that Ms Harvey paid for the privilege of serving on the crew. The definition of employee is found in the Employment Rights Act 1996 at Section 230, which says an employee is anyone “that has entered into, or works under… a contract of employment,” A contract of employment can be either oral or written. If Ms Harvey did not have a contract of employment, for whatever reason, she was not an employee. This is a fundamental point in the case, as Employment Discrimination claims are not able to be brought by anyone who is not an employee. In this case it was likely that no such contract existed, meaning the claim was without foundation.

The second issue was whether Sir Robin Knox-Johnson could be named as a defendant. The claim was brought against Sir Robin Knox-Johnston in his capacity as founder of the company and not in his personal capacity. According to Clipper Ventures’ website, the organisation is an English public limited company. This means that it has a separate legal personality from that of its members and employees. Naming Sir Robin Knox-Johnson as defendant would mean the allegation would be brought against him personally. The right approach for a claim against a public limited company is to bring a claim against the company itself, not its members or employees. In this case, Sir Robin’s name was withdrawn at the very start of the hearings because it was regarded as speculative.

The final issue concerned whether the courts and tribunals of England and Wales had the jurisdiction to hear the claim. International races encompass a variety of legal jurisdictions as they travel around the world. To ensure a forum for disputes to be settled, international transactions and contracts normally have a legal jurisdiction clause which governs the legal jurisdiction where a claim will be brought. It was not evident that England and Wales was the appropriate jurisdiction for claims brought against the Clipper Round the World Race. Alternatively, if there was no contract of employment in existence, there would also be no jurisdiction to hear the case in the employment tribunal in any situation.

Comment

In conclusion, Ms Harvey’s claim was unlikely to have ever succeeded as it was fundamentally flawed and in the event the employment tribunal threw the case out. Unusually, the judge which awarded Clipper Ventures its costs, paid by Ms Harvey which in tribunal hearings only occurs when the claim is so unrealistic it has effectively wasted everyone’s time and money.

For specialist advice about bringing or defending employment claims contact Aneil Balgobin via e-mail ABalgobin@rollingsons.co.uk or by telephone on 0207 611 4848.