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Sex discrimination in the UK and how a Hong Kong ship manager got away with it
30 January 2020
Nautilus International has strongly criticised Hong-Kong based Wallem Shipmanagement for refusing to employ a British seafarer for a deck-based job because she was a woman.
Wallem Shipmanagement, which bills itself as an 'equal opportunity employer' and 'a place of diversity, respect and teamwork' admitted direct sex discrimination.
But a legal loophole in the Equalities Act 2010 (Work on Ships and Hovercraft) Regulations 2011, which excludes protection to seafarers working on foreign vessels outside UK waters, meant the firm escaped punishment.
'British seafarers are once again excluded from the same protections of other workers,' Nautilus International director of legal services Charles Boyle said.
'It’s all the more shocking because the claimant was in the UK at the time the blatant discriminatory act took place.'
In the case of Walker v Wallem Shipmanagement, the London-based Employment Appeal Tribunal (EAT) ruled on January 16 that deck officer Sophia Walker was the victim of sex discrimination after she was refused a job interview because she was a woman.
In 2016 a representative of Wallem Shipmanagement, Brian Phipps, who has since been dismissed, approached graduates of Blackpool & Fylde College and the Fleetwood Nautical Campus for employment opportunities. He interviewed 10 graduates in total including Ms Walker.
After some correspondence between Mr Phipps and a senior tutor at the college regarding employment of the graduates, Mr Phipps emailed saying that Wallem was '"an equal opportunity company" but that Ms Walker would not be offered a place because of her sex – and suggested she would be better off working on a cruise ship. The tutor forwarded that email to all the candidates including Ms Walker.
Ms Walker complained to the company on 19 July 2016 describing 'deep humiliation' at her treatment and saying she was outraged and disgusted.
She pointed out that her maritime qualifications and experience matched those of the male applicants and demanded a response.
There followed a flurry of internal correspondence within Wallem, in which it sought to limit the damage to its reputation. The tribunal found the overriding concern of Wallem at the time was to protect its reputation and limit the damage from the incident.
Wallem did not answer direct questions about the ruling and its findings at time of going to press.
Following Ms Walker's complaint, the Wallem interviews and recruitment process at the College were cancelled.
Head of Fleetwood Nautical Campus Neil Atkinson told Nautilus International that at no point did Wallem attend any careers event on campus, as had been reported, and confirmed the discrimination by Wallem Shipmanagement was performed in an email exchange.
'As a Maritime UK Women in Marine Charter pilot company Fleetwood Nautical Campus is totally committed in its support for female cadets through a variety of initiatives, such as the Fleetwood Female Forum events hosted on campus, not only into their first role as an Officer Of the Watch but also in their progression through the ranks both at sea and as they prepare to come ashore, as a number of our female alumni have done,' Mr Atkinson said. 'We now have 40% of female staff in management roles within Fleetwood Nautical Campus.'
Ms Walker was not available for comment at time of going to press.
British seafarers are once again excluded from the same protections of other workers
In the EAT precedent-setting ruling, handed down on 16 January 2020, Mr Justice Kerr, Ms Susan Wilson and Mr Clifford Edwards dismissed Ms Walker's claim of direct sex discrimination with serious misgivings.
Mr Justice Kerr said that the case had been dismissed 'with regret'. He noted that, had it not been for the loophole, the employment tribunal (which heard the case at first instance in May 2018) would have awarded Ms Walker £9,000 in compensation for injury to feelings, caused by the discriminatory act.
They found that, while Wallem Shipmanagement’s conduct was 'reprehensible', they were powerless to right the injustice done to Ms Walker because 'the 2011 Regulations 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 personnel to serve on its clients’ foreign flagged ships sailing outside United Kingdom waters'.
That meant foreign companies can discriminate against British seafarers on grounds of gender, sexuality, age, disability and race.
In the ruling, judges rejected the argument that as Ms Walker was at the time unemployed, she should be covered by the wider application of the Equality Act, which applies to shore-based workers and applicants.
Crucially, the appeals tribunal ruled that the term 'seafarer' (in this context) also includes applicants for work as a seafarer, not just seafarers already in employment.
The appeals tribunal ruled that, in this case, it would strain the language of the relevant parts of the Equality Act and the Regulations for it to afford a 'beneficent policy-driven construction' to avoid the resulting injustice. In stating this, the appeals tribunal recognised that this was the drafting that parliament had chosen.
It was also likely that the 2011 Regulation flouts EU Directive 2006/54/EC (the Equal Treatment Directive) to which the UK is a signatory, the EAT found.
The shocking discrimination suffered by Ms Walker could have been avoided had the UK implemented its EU equality obligations in a more expansive way, Mr Boyle said.
Justice Kerr said the Secretary of State would be wise to revisit the scope of the 2011 Regulations and noted 'he or she is obliged by regulation 6 of the 2011 Regulations to review the impact of regulations 3 to 5 every five years'.
The next review must be done by 31 July 2021 and the conclusions must be published in a report.
A 2016 review of the Regulations, however, remains stalled at the political level.
A much-delayed meeting was held on 3 December 2015 of the ad hoc group led by the Department for Transport (DfT) to oversee the review of the Regulations applying the Equality Act to UK shipping. Department for Business, Innovation and Skills (BIS), the UK Chamber of Shipping, Nautilus International and RMT Union attended.
At the meeting DfT explained that the evidence would need to be scrutinised by the Government’s Regulatory Policy Committee, which would then issue a recommendation to the shipping Minister. Hence the review group would need to complete its work by Easter 2016.
In January 2018 in response to a parliamentary question from Shadow Minister for Transport Karl Turner, Shipping Minister Nusrat Ghani said 'publication of the Post Implementation Review had been delayed whilst the Department for Transport sought further quality evidence from the industry regarding the impact and cost of the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011'.
In April 2019 Mr Turner again asked the Shipping Minister for an update. This time Ms Ghani said the review had not been published as it was 'not clear whether the proposed recommendations would need to be reconsidered following our exit from the European Union'.
At that point she said the review was undergoing 'final internal scrutiny before being presented to the Reducing Regulation Committee'.
On 21 January 2020 Ms Ghani told the Blackpool Gazette that draft changes to the law are due to go before Parliament next month.
DfT confirmed that the 2010 Equalities Act would be debated 'in the coming months' in terms of its application to a UK National Minimum Wage. A spokesperson said it was likely that discrimination will also be discussed in light of the EAT's ruling.
Closing the loophole
As Wallem is an International Bargaining Forum (IBF) member, the Union has alerted the International Maritime Employers' Council (IMEC) to its behaviour, with a view to ending its discriminatory recruitment practices.
Nautilus will also be studying the implications of this judgement and decide on next steps, Mr Boyle said.
'It is reprehensible that UK law should permit such an act of discrimination, Mr Boyle said.
It is unacceptable that British seafarers are not afforded the same employment protection rights as other workers under UK law.
'Nautilus International is determined to secure fair access to job opportunities for those entering the industry, regardless of their background.
'Any act of discrimination that takes place in the UK should be outlawed.'
Nautilus Members can seek advice and further information on discrimination from Union officials via our members-only Facebook groups.
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