The appellant sought work aboard a foreign-registered cargo ship destined for foreign waters from the first respondent, a Hong Kong-based ship management company, which was recruiting in the UK. She was told that she would not be employed on a non-UK flagged ship because she is a woman. When she complained, she was treated by the first respondent in a way that would amount to victimisation. However, the Employment Tribunal held that it lacked jurisdiction to determine her claim. The appellant argued on appeal that the Tribunal had misinterpreted s 81 of the Equality Act 2010 (UK) (the 2010 Act), read with the Equality Act (Work on Ships and Hovercraft) Regulations 2011 (UK) (the 2011 Regulations).​

Held: Appeal dismissed.

The Employment Appeal Tribunal agreed with the first respondent's arguments that the explanatory memorandum to the 2011 Regulations made it clear that the Regulations were being enacted within the constraints of the UK’s obligations under the United Nations Convention on the Law of the Sea 1982 (UNCLOS), which restricts the ability of States to apply their legislation to ships flying a different flag (see arts 92 and 94). The European Union is itself a party to the UNCLOS: see Council Decision 98/392/EC, 1998 OJ L179.

The Appeal Tribunal also agreed that the solution envisaged in the 2011 Regulations does pay heed to the rights of nationals of EEA and designated States, by extending to them the protection of Part 5 of the 2010 Act where the relevant non-UK registered ship flies the flag of an EEA or designated State. However, the Appeal Tribunal doubted whether the 2011 Regulations fully address the rights to equal treatment guaranteed by arts 14 and 17 of Directive 2006/54/EC (the Equal Treatment Directive) and by the equivalent provisions in the Charter of Fundamental Rights. The discrimination practised by the first respondent in this case occurred on British soil, ie on the physical territory of an EU and EEA state.

It does not follow that because: (i) the 2011 Regulations were enacted with the UK’s obligations under UNCLOS in mind; and (ii) the EU is a member or supporter of UNCLOS, the 2011 Regulations are compliant with the UK’s obligations under EU law. UNCLOS has nothing to say about recruitment of seafarers that takes place on dry land. The restrictions on States applying their laws to ships registered in a different State only apply where the ship is on the high seas. UNCLOS imposes no obligation on the United Kingdom to exempt nationals of other States from liability under UK law for discrimination committed in England.

However, Parliament chose, in s 81 of the 2010 Act, to empower the Secretary of State to decide whether and to what extent Part 5 of the 2010 Act should apply in relation to work on ships, work on hovercraft and seafarers. The Secretary of State then decided to apply or disapply the whole of Part 5 of the 2010 Act as provided for in regs 3 and 4 of the 2011 Regulations and to disapply part, but not all, of Part 5, in the circumstances provided for in reg 5.

It is, therefore, an uncomfortable but inescapable proposition that the 2011 Regulations permit 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 to serve on its clients' foreign-flagged ships sailing outside United Kingdom waters. No international law obligation of the United Kingdom requires UK domestic law to permit such discrimination. It is, at least, doubtful whether the 2011 Regulations conform to the provisions of the Equal Treatment Directive. The appellant has no remedy against the first respondent because the latter is not an emanation of the State. The appellant's remedy, if any, lies against the United Kingdom itself. The Secretary of State would be wise to revisit the scope of the 2011 Regulations.