Donald Gabel v The Health and Safety Executive

A body is a qualifications body under sections 53 and 54 of the Equality Act 2010 only in relation to a qualification which it can confer. A project-specific appointment as diving supervisor, made by a diving contractor following an assessment of competence, is a role within a trade or profession rather than a separate trade or profession.

Recognition of prior experience or an equivalent qualification for a diving school does not amount to the direct conferral of a diving-supervisor qualification. The requirement that a supervisor at an approved diving school hold an approved qualification was, in any event, a proportionate means of protecting trainee divers. A role activated only by appointment for a particular operation is not a subsisting personal office.

The claimant, a disabled former United States Navy diving instructor and supervisor, sought recognition enabling him to work as a diving supervisor in the United Kingdom. He relied on experience described as grandfather rights in the approved code of practice.

An Employment Tribunal dismissed his claims under the Equality Act 2010. It held that the Health and Safety Executive was not a qualifications body in respect of diving supervisor and that the role was not a personal office. It also found, alternatively, that the qualification requirement was justified and that no reasonable adjustment was required.

The claimant appealed on those three issues. The central question was whether the regulatory scheme gave the respondent power to confer the relevant qualification or access to a personal office.

1. Appeal dismissed. The Tribunal made findings which were open to it and disclosed no error of law.

2. The respondent was a qualifications body in relation to approved diving qualifications, but not in relation to the position of diving supervisor. Under regulations 6 and 9 of the Diving at Work Regulations 1997, the diving contractor appoints a supervisor for each operation and assesses the required competence. The respondent did not itself confer a standalone diving-supervisor qualification.

3. The claimant's grandfather rights could in theory be put to a diving contractor or approved dive school. A school might seek recognition that they were equivalent to an approved qualification. That would be an exemption or recognition of equivalence for the school, not a qualification conferred directly on the claimant. The role was therefore a role within a trade or profession, not a particular trade or profession under section 54(3) of the Equality Act 2010.

4. The Tribunal's alternative justification finding was adequately reasoned. Its findings identified the statutory safety function, the particular vulnerability of trainee divers, and the connection between their protection and requiring an approved qualification. That requirement was a proportionate means of achieving the legitimate aim of diver safety. It was likewise not reasonable to expect the respondent to depart from it as an adjustment.

5. A diving supervisor acts in that capacity only when appointed for a particular diving operation. The role was not a subsisting, permanent position and so was not a personal office. In any event, the dive school, rather than the respondent, would have had the relevant powers concerning appointment and access to the role.

• Employment Appeal Tribunal: dismissed the claimant's appeal: [2024] EAT 31.
• Employment Tribunal: on 8 July 2021, dismissed claims for discrimination arising from disability, indirect discrimination and failure to make reasonable adjustments.