Shipping – EAT Spots Uncomfortable Gap in Anti-Discrimination Laws

The Employment Appeal Tribunal (EAT) has expressed deep concern about a gap in the law which enables overseas recruiters of British seafarers to engage in flagrant discrimination if the vessels on which they wish to serve are foreign-flagged and operate outside UK territorial waters.

Deck on shipA British woman who had qualified as a cadet deck officer applied for work to a Hong Kong-based agency which provides personnel to serve on foreign-registered vessels outside UK waters. Her application was made in England. She was outraged after being informed that the agency recruited only men, not women, to work on its clients’ ships. Although describing itself as an equal opportunities company, the agency said that it could not offer an appropriate on-board environment for female cadets.

After the woman complained to an Employment Tribunal (ET), the agency admitted that her treatment amounted to direct sex discrimination. It argued successfully, however, that the ET had no jurisdiction to hear her claim. The ET found that the combined effect of Section 81 of the Equality Act 2010 and Regulation 4 of the Equality Act (Work on Ships and Hovercraft) Regulations 2011 was that the anti-discrimination provisions of the Act did not apply to protect the woman in respect of her recruitment in England to work on foreign-flagged vessels outside UK waters.

In rejecting her appeal against that ruling with regret, the EAT could find no fault in the ET’s interpretation of the legislative and regulatory provisions. However, it noted that the surprising effect of those provisions was to confer complete immunity on foreign-based recruiters of seafarers on UK soil in respect of what would ordinarily be viewed as abhorrent acts of discrimination, including harassment.

Expressing profound discomfort at the inescapable outcome of the case, the EAT noted that it was at least doubtful whether the Regulations conform with the provisions of Directive 2006/54/EC (the Equal Treatment Directive). However, the woman had no possible remedy against the agency because it was not an emanation of the state, and the only potential cause of action open to her was against the UK itself. The EAT considered that the government would be wise to review the scope of the Regulations as a matter of urgency.

Investigating Sexual Harassment Claims – Employment Tribunal Guidance

Workplace disciplinary inquiries must be thorough, fair – and prompt. The point was made by an Employment Tribunal (ET) in the case of an underground railway worker who was kept in a state of limbo for almost 16 months whilst sexual harassment allegations against him were investigated.

London UndergroundOne of the man’s female colleagues had accused him of plaguing her with numerous highly inappropriate sexualised comments. He denied any wrongdoing and it was a case of his word against hers. Following the long investigation, during which he was suspended from work, the woman’s account was preferred. After his internal appeal was rejected, he was dismissed on grounds of gross misconduct.

In upholding his unfair dismissal complaint, the ET found that the investigation was fundamentally flawed in that relevant managers had throughout shown a significant tendency to accept the veracity of the woman’s account without challenge. Potential inconsistencies in her version of events, and possible motives she might have had for making false allegations, had not been adequately explored.

The ET noted that it was wholly unsatisfactory that so many months had passed between the woman making her complaint and the man’s dismissal. Although he was paid in full throughout the investigation, there was a real risk of evidence going stale and he had been kept in a considerable state of limbo for longer than necessary. Although the delay was not in itself enough to render the dismissal unfair, it contributed to the unreasonableness of the procedure followed.

Whilst rejecting the employer’s plea that the man had, by his conduct, contributed to his dismissal, the ET found that, had a fair procedure been adopted, there was a 75 per cent chance that he would have been dismissed in any event. His compensatory award will be reduced accordingly.

The man received a basic award of £14,478 to reflect his more than 20 years of service to his employer. In the absence of agreement, the amount of his compensatory award, and any claim he might make for reinstatement in his former job, would be assessed at a further hearing.

Ethical Veganism is a Protected Characteristic, ET Rules

Vegetable soupIn a decision that broke new legal ground, an Employment Tribunal (ET) has ruled that ethical veganism is a protected characteristic under the Equality Act 2010.

Jordi Casamitjana, 55, brought a claim against his former employer, the League Against Cruel Sports, alleging that he was unfairly dismissed because of his ethical veganism. As a preliminary question, the ET had to consider whether ethical veganism is a ‘philosophical belief’ and thus falls within the protected characteristic of religion or belief under the Act.

Ethical vegans not only eat a plant-based diet but also avoid using any products associated with exploitation of animals, such as clothes made from wool or leather.

For a belief to constitute a philosophical belief, it must be genuinely held, be a belief rather than an opinion or viewpoint, concern a weighty and substantial aspect of human life and behaviour, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, and not be incompatible with human dignity or in conflict with the fundamental rights of others.

The ET ruled that ethical veganism met the definition of a philosophical belief. The issue of whether Mr Casamitjana’s ethical veganism was the reason for his dismissal will be considered at a later date.