Jurisdiction – Discrimination Claims
Jurisdictional Points – Working Outside The Jurisdiction
The employment tribunal had not erred in law by deciding that it had no power to entertain the claimant’s claim for sex discrimination. The tribunal was correct to hold that the combined effect of section 81 of the Equality Act 2010 (the 2010 Act) and regulation 4 of the Equality Act (Work on Ships and Hovercraft) Regulations 2011 (the 2011 Regulations) was that Part 5 of the 2010 Act did not apply to protect the claimant against sex discrimination in respect of her recruitment in England to work on foreign registered vessels outside Great Britain.
The Hong Kong based respondent is an employment service provider within section 55 of the 2010 Act. It provides personnel to serve on foreign registered ships sailing outside United Kingdom waters. The female claimant qualified as a cadet deck officer and applied in this country through the respondent for work on a foreign registered ship. The respondent informed the claimant that it would not offer her work because of her sex; the respondent recruited only men, not women, to work on its clients’ ships.
The first respondent admitted that this was an act of direct sex discrimination. The tribunal also found, subject to the jurisdiction point, that the claimant’s claim for victimisation would have succeeded, though her claim for harassment would have failed. The tribunal would have awarded compensation for injury to feelings of pounds 9,000. Her claim for loss of earnings would not have succeeded as she had since succeeded in obtaining employment with earnings sufficient to offset any such loss.
The appeal tribunal dismissed the claimant’s appeal with regret. The respondent’s conduct had been reprehensible, but the tribunal had been powerless to right the injustice done to the claimant. The 2011 Regulations, surprisingly, permit an offshore employment service provider to discriminate on United Kingdom soil on the ground of any of the protected characteristics in the 2010 Act when recruiting, in this country, personnel to serve on its clients’ foreign flagged ships sailing outside United Kingdom waters.
No international law obligation of the United Kingdom requires UK domestic law to permit such discrimination. It is, at least, doubtful whether the 2011 Regulations conform to the provisions of Directive 2006/54/EC (the Equal Treatment Directive). The claimant has no remedy against the respondent because the latter is not an emanation of the state. The claimant’s remedy, if any, lies against the United Kingdom itself.
The Secretary of State may well consider it wise to revisit the scope of the 2011 Regulations. A review and report on their impact is due to take place soon, in accordance with regulation 6.
Kerr J
[2020] UKEAT 0236 – 18 – 1601
Bailii
England and Wales
Employment, Discrimination, Jurisdiction
Updated: 01 November 2021; Ref: scu.646840
