Seafarers who transfer onshore – when do they gain UK discrimination rights?
Legal Development 16 November 2022 16 November 2022
UK & Europe
Employment, Pensions & Immigration
The Employment Appeal Tribunal has decided that an employee is classified as a “seafarer” and therefore subject to the more limited protection against discrimination afforded to seafarers under the Equality Act 2010 (EqA), despite being based in an onshore role in the UK for a period of 6 months prior to termination of his employment.
This raises an important question about when seafarers who return to work on UK soil cease to be seafarers so that any discrimination rights will be determined under normal principles applicable to non-seafarers.
What does the Equality Act 2010 say about territorial scope?
As a general principle, the Equality Act 2010 (EqA) gives protection against discrimination in employment “when there is a sufficiently close link between the employment relationship and Great Britain” (see the EHRC Code). But for seafarers and/or those working on ships or hovercrafts, this general principle does not apply, and protection against discrimination is restricted to certain seafarers on UK or EEA flagged vessels. Crucially, in order to comply with the United Nations Convention on the Laws of the Seas which prevents the UK from applying its laws to vessels flying another country’s flag (see Articles 92 and 94), seafarers working on ships flying a non-UK or non-EEA flag are not protected. A seafarer is defined in the EqA as someone who is employed or engaged in any capacity on board a ship or hovercraft.
What happened in this case?
Charles Bathgate was a British national who was employed for almost 20 years as a seafarer for a company incorporated in Singapore. During 2008, Mr Bathgate commenced work as a Chief Officer on a vessel, Deep Blue, which was registered in the Bahamas, and which operated outside of UK and EEA waters. In June 2016, Mr Bathgate returned to the UK from working on Deep Blue and worked in a variety of onshore roles before accepting voluntary redundancy in January 2017 at the age of 61.
As part of his redundancy, Mr Bathgate signed a settlement agreement which entitled him to an additional payment calculated by reference to a particular collective agreement. However, the employer later refused to pay the additional payment on the basis that the relevant term in the collective agreement only applied to officers under the age of 61. Mr Bathgate alleged that this refusal to pay the additional payment was age discriminatory, and brought a claim in the Employment Tribunal.
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 his claim was covered by the EqA. However, because Mr Bathgate had already settled his claims (including future claims) through the settlement agreement, his claim was ultimately rejected.
Subsequently, both parties appealed their relevant rejected claims to the Scottish Employment Appeal Tribunal (EAT).
What did the Employment Appeal Tribunal decide?
The EAT allowed both appeals, ultimately meaning that Mr Bathgate lost his claim. The EAT decided that:
- Settlement agreements cannot be used to waive future claims which are unknown at the time, meaning that the settlement agreement did not prevent Mr Bathgate from bringing his claim of post-employment discrimination. Please see our commentary on the implications for settlement agreements.
- Despite Mr Bathgate being in an onshore role at the time of his redundancy, he was still categorised as a seafarer engaged on a foreign flagged vessel and was therefore unable to bring a discrimination claim, whether this related to discrimination during or after employment. When determining this, the EAT highlighted:
- The definition of seafarer should be widely interpreted as someone who “habitually works on board a ship” and should not be limited to those who are in a seafaring role at the time of the alleged discrimination. This, the Judge noted, was to avoid the “unpredictable state of affairs” where different rights could apply dependent on whether the worker was physically onboard a vessel when the alleged discriminatory act took place. The Judge gave the example of a seafarer coming ashore for training or illness for a month to illustrate the point that this person would remain a seafarer during this time ashore.
- A seafarer is a “status” rather than a description of the job the worker happened to be doing at the time of an alleged discriminatory act.
- An assessment of whether a worker has the status of seafarer should take account of a number of factors to include:
- The tenure of the worker onboard vessels vs the time spent onshore – in this case the claimant was still a seafarer because he had spent most of his working life at sea with only 6 months onshore, part of which was spent dealing with the redundancy process; and
- The circumstances of the subsequent onshore position – in this case, during the last 6 months where he was onshore, the claimant’s job description remained the same and he had expected to be reassigned to a different vessel at a later point.
- The EqA provides that any act done post-employment should be prohibited if it would have been prohibited by the EqA during employment. Therefore, the EAT decided, where the worker did not have jurisdiction under the EqA during employment, then they should not have jurisdiction post-employment.
What does this mean for employers?
This judgement adds a layer of complexity when determining the employment rights of a seafarer who has moved into a role onshore in the UK after a period of time on vessels. As this is a well-trodden path for many seafarers, we could see this issue arising again and again. Whilst it is helpful for employers to know that seafarers will not necessarily obtain EqA protection immediately on becoming an onshore worker, the approach taken by the judge does leave open scope for interpretation and many unanswered questions.
The judgment unfortunately did not set out a test for when a seafarer returning to work on UK soil would lose their “status” as a seafarer, but it did suggest that such status may be lost if the employee ”ceased to be eligible to sail on a ship or hovercraft”. This raises a multiplicity of questions regarding the potential circumstances that would terminate the status of a seafarer. There is no further guidance for employers on when or how exactly this will happen and there will no doubt be nuances when looking at how long a tenure as a seafarer will be enough to retain the status, how long onshore will be enough to lose the status and how much the contractual documents clarifying the status will impact on this determination. It appears that the decision will be made on a case-by-case basis, considering the specific circumstances and history of the seafarer.
With increasing focus on diversity and inclusion in shipping, and a recent survey showing that 60% of 1128 women from over 78 countries had encountered gender-based discrimination onboard, and with 25% of women admitting that physical and sexual harassment on vessels were common, we expect that there will be an increasing focus on ensuring access to protection against discrimination and harassment for seafarers who have moved into shore-based roles in the UK under the EqA. No doubt the maritime unions will continue to campaign for more protection in this area.
For employers, it pays to assume that UK equality laws apply to any employee on UK soil and to foster a culture which does not tolerate discrimination and harassment in any event. This decision also makes the case for employers to clearly state whether a seafarer making the transition onshore retains their status as a seafarer or becomes a non-seafarer to avoid uncertainty as to the application of the law.