Walker v Wallem Shipmanagement Ltd & Anor

Section 81 of the Equality Act 2010, read with the Equality Act (Work on Ships and Hovercraft) Regulations 2011, excludes the whole of Part 5 unless the Regulations prescribe its application. The exclusion is not confined to existing employment. It includes discrimination at the recruitment stage.

Accordingly, Part 5 did not protect an applicant recruited in Great Britain to work wholly outside Great Britain and its adjacent waters on a foreign-registered ship. Regulation 5, which separately modifies Part 5 for certain nationality-based pay differentials including offers of pay, confirmed that regulations 3 and 4 operate on pre-employment matters as well as employment itself.

The claimant, a qualified female deck officer, applied in England through the first respondent for work on a foreign-registered cargo ship operating in foreign waters. The respondent admitted that its refusal to offer her work because she was a woman was direct sex discrimination. The Employment Tribunal also found that, if it had jurisdiction, her victimisation claim would partly succeed and it would award £9,000 for injury to feelings.

The Tribunal nevertheless held that it lacked jurisdiction under section 81 of the Equality Act 2010 and regulation 4 of the Equality Act (Work on Ships and Hovercraft) Regulations 2011. The claimant appealed, contending that the statutory exclusion applied only to actual employment, not recruitment. The central issue was whether Part 5 applied to this pre-employment discrimination claim.

1. Appeal dismissed. The Employment Tribunal correctly held that it had no jurisdiction to determine the discrimination claims.

2. Section 81 excluded Part 5 of the Equality Act 2010 in relation to work on ships, work on hovercraft and seafarers, save in prescribed circumstances. Although the language of section 81 and regulation 4 used the present tense, regulations 3 and 4 applied or disapplied the whole of Part 5. Part 5 includes provisions governing recruitment, not merely an existing employment relationship.

3. Regulation 5 reinforced that conclusion. It created a limited modification concerning nationality-based differential pay and offered pay in circumstances where regulations 3 or 4 would otherwise apply Part 5. Its express reference to offers of pay would be redundant if pre-employment discrimination were already outside section 81's general exclusion.

4. The claimant's intended work was wholly outside Great Britain and adjacent waters, on a foreign-registered ship. Regulation 4 did not prescribe the application of Part 5 because its condition requiring a United Kingdom ship was not met. The Regulations therefore left the statutory exclusion in place.

5. The Tribunal accepted that this result permitted seriously objectionable discrimination during recruitment in Great Britain and doubted whether the Regulations fully conformed with equal-treatment rights. However, a conforming or policy-driven construction, including that contemplated by Marleasing, could not strain the language of section 81 and the Regulations far enough to create jurisdiction. Any remedy lay, if at all, against the United Kingdom rather than this private respondent.

• Employment Appeal Tribunal: dismissed the claimant's appeal and upheld the Employment Tribunal's decision that it lacked jurisdiction.
• Employment Tribunal, Cambridge: reserved judgment dated 12 June 2018, sent to the parties on 14 June 2018. It held that section 81 of the Equality Act 2010 and regulation 4 of the Equality Act (Work on Ships and Hovercraft) Regulations 2011 excluded the claim.