Employment claims out at sea: Was the Tribunal sailing in the wrong direction?

In the recent case of Yacht Management Company Ltd v Gordon the Employment Appeal Tribunal (“EAT”) upheld an Employment Tribunal’s decision that it could hear claims for unfair dismissal and discrimination which were brought by a seafarer who was working on a yacht in foreign waters. The yacht did not enter a UK port or UK waters at any time during the claimant’s employment.

The EAT held that the Employment Tribunal was entitled to find that the claimant’s employment nevertheless had a sufficiently strong connection with Great Britain for her to benefit from British statutory employment rights.

At first blush this appears to be an unremarkable example of the application of well-established case law principles. However, there are additional restrictions on a seafarer’s ability to bring discrimination claims under the Equality Act 2010 which do not seem to have been considered by either the Employment Tribunal or the EAT in this case.

As previous case law has confirmed, the combined effect of section 81 of the Equality Act 2010 and the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 (the “2011 Regulations”) is that seafarers are only entitled to bring discrimination claims under the Equality Act provided that the specific statutory criteria in the 2011 Regulations have been met.

In this case, both the Employment Tribunal and the EAT appear to have completely overlooked the relevant statutory provisions. Under the 2011 Regulations, the conditions that a seafarer needs to meet in order to bring a discrimination claim under the Equality Act depends on whether or not the seafarer is working wholly or partly in Great Britain and its adjacent waters.

As an absolute minimum, because the yacht that the claimant was working on was situated in foreign waters, the yacht would have needed to be registered in the UK for the claimant to have been entitled to discrimination protection under the Equality Act. There is no mention of the yacht’s place of registration at all in the EAT judgment.

Even if the yacht was registered in the UK, there would have been additional statutory criteria which needed to be satisfied if the claimant was working wholly outside Great Britain and its adjacent waters.

Some of the conclusions in the judgment perhaps indicate that the EAT was of the view that the claimant did not work wholly outside Great Britain because the time she spent commuting to her place of work from her home in Aberdeen should be treated as working time. However, that is not an issue which was in any way analysed by reference to the properly applicable statutory provisions.

As it stands, the claimant’s claim will proceed to a full merits hearing before the Employment Tribunal. If the Tribunal or the EAT had considered the application of section 81 of the Equality Act and the 2011 Regulations, then the claim may well have been struck out instead.

This case serves as an important reminder to employers of seafarers that Employment Tribunals may not necessarily be alive to the more restricted scope of the Equality Act 2010 where seafarers are concerned. It is essential that employers clearly and proactively articulate any challenges to the Tribunal’s jurisdiction to deal with claims from seafarers at the outset of any Tribunal proceedings.

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