Although it is direct sex discrimination to refuse to employ a woman because of her sex, the Employment Appeal Tribunal (EAT) held in Walker v Wallem Shipmanagement Ltd and anor that it was not illegal to do so if the job in question was on a foreign registered vessel sailing outside UK waters.

Basic facts

Hong Kong-based Wallem Shipmanagement provided personnel to serve on foreign registered ships sailing outside the UK. In 2016, it interviewed a number of graduates from the Blackpool & Fylde College. Ms Walker, a qualified deck officer and recent graduate of the college, was told after her interview that the company could not employ her because it only recruited men.

Ms Walker lodged a tribunal claim for direct sex discrimination, harassment and victimisation under the Equality Act 2010. Whilst the company accepted that the decision was an act of direct sex discrimination, it held that the tribunal did not have jurisdiction to hear the claim because the interviews were for jobs on foreign registered ships sailing in foreign water and therefore fell under the exemptions within the 2011 regulations brought into effect by Section 81 of the Equality Act.

Relevant law 

Section 81 of the Equality Act provides that Part V applies in relation to work on ships, work on hovercraft and seafarers “only in such circumstances as are prescribed”.

The same section brought into effect a set of regulations called the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 which prescribed the circumstances in which Part V applied in relation to work on ships and with regard to seafarers. In particular, regulation 4 removed Part V from applying to work on foreign vessels registered outside Great Britain except in limited circumstances.

Tribunal decision 

The tribunal agreed with the company that it did not have jurisdiction to hear Ms Walker’s claims because they were excluded by Part V of the 2010 Act.

Had the jurisdiction point not succeeded, however, the tribunal held that it would have allowed her claim for victimisation but not her claim for harassment. It would also have awarded compensation for injury to feelings of £9,000. Her claim for loss of earnings would not have succeeded as she had since found work which had offset any loss. 

EAT decision

Although the company’s conduct was clearly “reprehensible”, the EAT held that it had no option but to dismiss Ms Walker’s appeal as the tribunal had no power to right the injustice that had been done to her.

This was because the 2011 Regulations allowed an offshore employment service provider to discriminate on UK soil on the ground of any of the protected characteristics in the 2010 Act when recruiting personnel in this country to serve on its clients’ foreign flagged ships sailing outside UK waters.

This was despite the fact that there was no international law obligation on the UK which required its domestic law to permit such discrimination. Indeed, the EAT was doubtful that the regulations, in their current form, conformed to the provisions of the EU Equal Treatment Directive. As the company was not an emanation of the state, her only remedy (if any) was to pursue a claim against the UK government for failing to implement the directive properly.

As the Secretary of State is due to revisit the scope of the 2011 regulations by 31 July 2021, the EAT held that it “would not be surprised if the present case and the injustice suffered by the claimant were to feature in that review."