The Employment Appeal Tribunal has decided that an employee is classed as a “seafarer” and therefore subject to the more limited protection against discrimination afforded to seafarers under the Equality Act 2010 (EqA), although he be based ashore in the UK for a period of 6 months prior to termination of employment.
This raises an important question as to when seafarers returning to work on UK soil cease to be seafarers, so that any right to discrimination will be determined under the normal principles applicable to non-seafarers.
What does the Equality Act 2010 say about territorial scope?
Generally, the Equality Act 2010 (EqA) provides protection against discrimination in employment “where there is a sufficiently close connection between the employment relationship and Great Britain” (see EHRC code). But for seafarers and/or those working on ships or hovercraft, this general principle does not apply and the protection against discrimination is limited to certain seafarers on ships flying the flag of the United Kingdom or of the EEA. Basically, in order to comply with the United Nations Convention on the Law of the Sea which prevents the UK from applying its laws to ships flying the flag of another country (see Articles 92 and 94), seafarers working on non-UK or non-UK flagged vessels – EEA flag is not protected. A seafarer is defined in the EqA as a person employed or engaged in any capacity on board a ship or hovercraft.
What happened in this case?
Charles Bathgate was a British national who worked for almost 20 years as a seaman for a company incorporated in Singapore. In 2008, Mr Bathgate began working as chief officer on a vessel, Deep Blue, which was registered in the Bahamas and operated outside UK and EEA waters. In June 2016 Mr Bathgate returned to the UK after working on Deep Blue and held various shore positions before agreeing to a voluntary departure in January 2017 at the age of 61.
As part of his dismissal, Mr. Bathgate signed a settlement agreement which entitled him to additional compensation calculated by reference to a particular collective agreement. However, the employer subsequently refused to pay the additional payment on the grounds that the relevant clause of the collective agreement only applied to officers under the age of 61. Mr Bathgate alleged that this refusal to pay the additional payment was discriminatory on the grounds of age and brought an action before the Industrial Court.
The Employment Tribunal decided that the seafarer restriction in the EqA did not apply to post-employment discrimination. The Tribunal therefore applied the usual principles of territorial scope and concluded that its claim was covered by the EqA. However, as Mr Bathgate had already settled his claims (including future claims) through the settlement agreement, his claim was ultimately dismissed.
Both parties subsequently appealed their rejected claims to the Scottish Employment Appeal Tribunal (EAT).
What did the Labor Appeals Court decide?
The EAT allowed both appeals, which ultimately meant Mr Bathgate lost his claim. The EAT has decided that:
- The settlement agreements cannot be used to waive future claims which are unknown at the time, meaning the settlement agreement did not prevent Mr Bathgate from pursuing post-employment discrimination claims. Please see our commentary on Implications for Settlement Agreements.
- Although Mr Bathgate was in a shore-based position at the time of his dismissal, he was still considered to be a seafarer employed on a foreign-flagged ship and was therefore unable to bring a claim of discrimination, whether related discrimination during or after employment. When determining this, the EAT highlighted:
- The definition of seafarer should be interpreted broadly as someone who “ordinarily works on board ship” and should not be limited to those who held a seafaring position at the time of the alleged discrimination. This, the judge noted, was intended to avoid the “unpredictable situation” where different rights could apply depending on whether the worker was physically on board a vessel at the time the alleged discriminatory act took place. The judge gave the example of a seaman coming ashore for training or illness for a month to illustrate that this person would remain a seaman during that time ashore.
- A sailor is a “status” rather than a description of the job the worker held at the time of the alleged discriminatory act.
- An assessment to determine whether a worker has seafaring status should consider a number of factors, including:
- The seniority of the worker on board the ships in relation to the time spent ashore – in this case the plaintiff was still a seafarer because he had spent most of his working life at sea with only 6 months ashore, of which one part was devoted to the dismissal procedure; and
- Circumstances of subsequent shore posting – in this case, in the last 6 months he was ashore, the applicant’s job description remained the same and he expected to be reassigned to another vessel in the future.
- The EqA provides that any act done after employment should be prohibited if it would have been prohibited by the EqA during employment. Therefore, the EAT decided that if the worker did not have competence under the EqA during employment, they should not have competence after employment.
What does this mean for employers?
This judgment adds a layer of complexity when determining the employment rights of a seafarer who has taken up a shore-based position in the UK after a period of time on ships. As this is a path traveled by many seafarers, we may see this problem arise again and again. While it is useful for employers to know that seafarers will not necessarily obtain EqA protection as soon as they become a worker ashore, the approach taken by the judge leaves room for interpretation and many unanswered questions.
The judgment unfortunately did not establish a criterion for when a seafarer returning to work on British soil would lose seafarer “status”, but it did suggest that this status could be lost if the employee “ceased to be eligible for sailing on a vessel or hovercraft”. This raises a host of questions regarding potential circumstances that would terminate seafarer status. There is no further guidance for employers on exactly when or how this will occur. will happen and there will no doubt be nuances when it comes to determining how long a tenure as a seaman will be sufficient to retain status, how long ashore will be sufficient to lose status and what will be the impact of contractual documents clarifying status on this determination It appears that the decision will be made on a case-by-case basis, taking into account the particular circumstances and history of the seafarer.
With growing attention to diversity and inclusion in shipping, and a recent survey showing that 60% of 1,128 women from over 78 countries had experienced gender discrimination on board, and 25% of women admitting that physical and sexual harassment on ships was common, we expect increasing emphasis on ensuring access to protection from discrimination and harassment for seafarers who have moved to shore posts in the UK as part of the EqA. There is no doubt that maritime unions will continue to campaign for more protection in this area.
For employers, it is beneficial to assume that UK equality laws apply to any employee on UK soil and to foster a culture that does not tolerate discrimination and harassment in any way. The decision also urges employers to clearly indicate whether a seafarer transitioning ashore retains seafarer status or becomes a non-seafarer to avoid any uncertainty as to the application of the law.