Neutral Citation Number: [2022] EAT 155
Case No: EA-2018-SCO-000052-DT
EMPLOYMENT APPEAL TRIBUNAL
52 Melville Street
Edinburgh EH3 7HF
Date: 7 October 2022
Before :
THE HONOURABLE LORD SUMMERS
– – – – – – – – – – – – – – – – – – – – –
Between :
MR CHARLES MELVIN BATHGATE Appellant
– and –
(1) TECHNIP UK LIMITED
(2) TECHNIP FMC PLC
(3) TECHNIP SINGAPORE PTE LIMITED Respondents
– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –
Mr Dominic Bayne (instructed by Bridge McFarland LLP) for the Appellant
Mr Brian Napier KC (instructed by Burness Paull LLP) for the Respondents
Hearing date: 31 March 2022
– – – – – – – – – – – – – – – – – – – – –
JUDGEMENT
Contents
SUMMARY
CONTRACT OF EMPLOYMENT
AGE DISCRIMINATION
JURISDICTIONAL/TIME POINTS
The Claimant claimed he had been discriminated against on the ground of his age when his employer
decided not to pay him a pension payment because of his age. The Respondents submitted that he had
settled any claim he might have for age discrimination when he had accepted a redundancy package
which among other things waived his right to claim for age discrimination. The ET held that on
ordinary contractual principles he had lawfully settled his claim. The Claimant appealed on the
ground that s. 147 of the Equality Act 2010 did not permit settlement of claims before they had arisen
and that on a sound construction of the words “the particular complaint” the Equality Act 2010
limited settlement to claims that were known to the parties. Held that s 147 of the Equality Act
prevented settlement of claims before their existence was known and that the case law was not to the
contrary effect. The Respondents cross appealed and submitted that the ET did not have jurisdiction
to hear the complaint of age discrimination since under s. 81 of the Equality Act 2010 and the
Regulations made thereunder the Claimant was outside the jurisdiction of the Act. The Respondents
submitted that the discriminatory conduct occurred after his employment ceased. His claim
accordingly lay under s. 108 of the Equality Act. Soundly construed the Claimant’s rights post-
employment could be no greater than they had been during employment and since he had sailed
outside UK and EEA territorial waters he was outside the scope of the Regulations. The Claimant
submitted that the Regulations only applied to seafarers and since s. 81 (5) defined a seafarer as
someone who worked on board a ship and since when he was made redundant he was working on
shore, s. 81 had no application to the Claimant. Held that he was a seafarer since “on board” did not
mean that he could only be a seafarer when on board a ship but he was a seafarer because the work
he did was on board a ship. Since he had worked on a ship called Deep Blue outside UK and EEA
territorial waters for most of his working life he did not lose his status as seafarer merely because at
the end of his career prior to redundancy he was on shore. Nor could s. 108 give him rights he did not
have during employment. Since he had no right to claim for age discrimination during employment
he did not acquire that right after his employment ended.
THE HONOURABLE LORD SUMMERS:
1. The Claimant lodged a claim against three Respondents under the Equality Act 2010 (“the
Act”). His employer was the Third Respondent. For convenience I shall avoid making any distinction
between the Respondents and the diverse interests they represent and refer to them collectively as
“the Respondent”. The Employment Tribunal (‘the ET’) held that the Claimant was not permitted to
seek redress from the Respondent. The ET held that on leaving the Respondent’s employment he had
settled his claim for age discrimination along with other claims in a settlement agreement. The
agreement is dated 29 January 2017 (‘the Agreement’). The Claimant appealed this decision. The
Respondents cross appealed the ET’s decision that it had jurisdiction to hear the claim.
2. At a Preliminary Hearing the appeal was not permitted to proceed in relation to the efficacy
of the Agreement at common law. I considered that the ET was clearly correct in concluding that the
Agreement was wide enough and specific enough to compromise a future claim for age discrimination
(para. 78 and 79) on ordinary principles of contractual construction.
The Facts
3. The Claimant was employed for about 20 years from 8 April 1997 to 31 January 2017 when
his employment was terminated by reason of redundancy. His employer was a company incorporated
in Singapore. The Claimant was sixty one at the time of his dismissal and a British national living in
Edinburgh. His contract of employment states that it is governed by the Employment Rights Act
1996 (hereafter the “ERA”) and the laws of Scotland. He was employed as a Chief Officer on a
number of vessels. These vessels for the most part sailed outside UK and EEA waters. The Claimant
worked on a vessel called “Deep Blue” from 19 August 2008. He ceased working on Deep Blue
shortly before his redundancy and the termination of his employment. The First Respondent was the
owner of Deep Blue. The Deep Blue was registered in the Bahamas. Deep Blue operated outside UK
or EEA waters, except for a short period between 3 April and 16 May 2015.
4. The Claimant’s last period on Deep Blue was 29 April 2016 to 8 June 2016. Although the
Claimant was told he would not be returning to Deep Blue, in the latter part of 2016 he was given to
understand he would be returning to sea aboard another vessel (para. 9). In the event he worked in a
variety of onshore roles until his employment came to an end.
5. At some point around December 2016/January 2017, the Respondent decided there was a need
for redundancies at the Claimant’s grade of Chief Officer and after a redundancy scoring exercise,
the claimant was advised he was at risk of redundancy (para. 31) On 13 January 2017 the Claimant
was placed at risk of redundancy. By letter sent on 16 January 2017 the Claimant was advised of the
redundancy terms on offer and he agreed to accept them. On 29 January 2017 the Claimant signed
the Agreement. It was a voluntary redundancy agreement which among other things settled his claims
against the Respondent. The Claimant had the benefit of advice from a solicitor. His employment
came to an end on 31 January 2017. The Agreement provided an enhanced redundancy and notice
payment, payable with his final salary and a further sum payable in June 2017 (‘the Additional
Payment’). The Additional Payment was to be calculated by reference a collective agreement between
the National Maritime Agency and Nautilus Trade Union known as “the Summary of Agreements”.
It stated at clause 3 that it would only apply to officers who had not reached the age of 61. The
Claimant was under the impression that he was due to receive the Additional Payment.
6. On 1 March 2017, over a month after the Agreement was executed, the Respondent took the
decision that the Additional Payment need not be paid to employees who were 61 or over at the time
of dismissal (paras 42, 55 and 77 of the Judgement). This was not finally communicated to the
Claimant until 26 June 2017. The ET accepted that there had been no deliberate intention on the part
of the Respondent to withhold the information (para. 55).
7. The Claimant submitted that the decision not to make the Additional Payment amounted to
direct and/or indirect age discrimination. The Respondent accepted that the reason the Claimant was
not paid the Additional Payment was because of his age but defended his claim on jurisdictional
grounds. The Respondent submitted that by signing the Agreement the Claimant had compromised
his right to pursue any further claim; and in any event that the Act did not extend to the Claimant in
his capacity as a seafarer.
Statutory Provisions
8. Part V of the Act applies the anti-discrimination provisions of the Act to work. S. 81 applies
Part V to work on ships and hovercrafts and seafarers “in such circumstances as are prescribed”.
Below I reproduce the relevant statutory provisions.
S. 81 (1) This Part applies in relation to—
(a) work on ships,
(b) work on hovercraft, and
(c) seafarers,
only in such circumstances as are prescribed.
(2) For the purposes of this section, it does not matter whether
employment arises or work is carried out within or outside the United
Kingdom.
(5) “Seafarer” means a person employed or engaged in any capacity on
board a ship or hovercraft.
(6) Nothing in this section affects the application of any other provision
of this Act to conduct outside England and Wales or Scotland.
The parties were agreed that the discriminatory act took place after the Claimant’s employment had
ended and that s. 108(1) (a) applied to the claim.
S.108 (1) A person (A) must not discriminate against another (B) if—
(a) the discrimination arises out of and is closely connected to a
relationship which used to exist between them, and
(b) conduct of a description constituting the discrimination would, if it
occurred during the relationship, contravene this Act.
9. The Act defines the jurisdiction of the ET to hear claims of age discrimination at work as
follows –
S.120 (1) An employment tribunal has, subject to section 121,
jurisdiction to determine a complaint relating to—
(a) a contravention of Part 5 (work);
(b) a contravention of section 108, 111 or 112 that relates to Part 5.
10. The Act goes on to lay down certain conditions that must be met before a claim can be settled.
S. 147 (2) A qualifying settlement agreement is a contract in relation to
which each of the conditions in subsection (3) is met.
(3) Those conditions are that—
(a) the contract is in writing,
(b) the contract relates to the particular complaint,
(c) the complainant has, before entering into the contract, received
advice from an independent adviser about its terms and effect
(including, in particular, its effect on the complainant’s ability to pursue
the complaint before an employment tribunal),
11. The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 set out the
prescribed circumstances in which s. 81 takes effect. The Regulations exclude certain persons from
their scope so as to give effect to the United Nations Convention on the Laws of the Seas which
prevents the UK from applying its laws to vessels flying another country’s flag (see Articles 92 and
94).
“3. – Application of Part 5 of the Act to seafarers working wholly or
partly in Great Britain and adjacent waters
(1) Part 5 of the Act applies to a seafarer who works wholly or partly
within Great Britain (including United Kingdom waters adjacent to
Great Britain) if the seafarer is on- (a) a United Kingdom ship and the
ship’s entry in the register maintained under section 8 of the Merchant
Shipping Act 1995 specifies a port in Great Britain as the ship’s port of
choice, or (b) a hovercraft registered in the United Kingdom and
operated by a person whose principal place of business, or ordinary
residence, is in Great Britain.
(2) Part 5 of the Act, except in relation to the protected characteristic of
marriage and civil partnership, also applies to a seafarer who works
wholly or partly within Great Britain (including United Kingdom
waters adjacent to Great Britain) and who is on- (a) a ship registered in
or entitled to fly the flag of an EEA State other than the United
Kingdom, or (b) a hovercraft registered in an EEA State other than the
United Kingdom, if paragraph (3) applies.
(3) This paragraph applies if- (a) the ship or hovercraft is in United
Kingdom waters adjacent to Great Britain, (b) the seafarer is a British
citizen, or a national of an EEA State other than the United Kingdom or
of a designated state, and (c) the legal relationship of the seafarer’s
employment is located within Great Britain or retains a sufficiently close
link with Great Britain.
4. – Application of Part 5 of the Act to seafarers working wholly outside
Great Britain and adjacent waters
(1) Part 5 of the Act applies to a seafarer who works wholly outside
Great Britain and United Kingdom waters adjacent to Great Britain if
the seafarer is on- (a) a United Kingdom ship and the ship’s entry in the
register maintained under section 8 of the Merchant Shipping Act 1995
specifies a port in Great Britain as the ship’s port of choice, or (b) a
hovercraft registered in the United Kingdom and operated by a person
whose principal place of business, or ordinary residence, is in Great
Britain, and paragraph (2) applies. (2) This paragraph applies if- (a) the
seafarer is a British citizen, or a national of an EEA State other than the
United Kingdom or of a designated state, and (b) the legal relationship
of the seafarer’s employment is located within Great Britain or retains
a sufficiently close link with Great Britain.”
Contractual Terms
12. The Agreement states at clause 6.1 that its terms were in full and final settlement of –
“…the Employee’s particular complaints and claims which, however
unjustified they may be regarded by the Company, the Employee hereby
intimates and asserts against the Company while at the same time
acknowledging that they are not to be pursued further, namely, claims
(‘Claims’): … (j) for direct or indirect discrimination, harassment or
victimisation related to: … (v) age, under section 120 of the Equality Act
2010 and/or regulation 36 of the Employment Equality (Age)
Regulations 2006.” The Agreement also included a general waiver at paragraph 6.1.2 of –
“…. all claims, demands, costs and expenses of whatever nature
(whether past, present or future and whether under contract, statute,
regulation, pursuant to European Union Law or otherwise) which the
employee has or may have against the Company, its directors and
employees or any of them or any other Associated Company and/or their
directors and/or employees in any jurisdiction arising out of, or in any
way connected with, the Employee’s employment with the Company, or
the holding of any office with the Company and/or the termination
thereof…”
13. The Claimant had the benefit of legal advice at the time of the Agreement was entered and a
certificate was supplied stating, “I have advised Charles Melvin Bathgate (the employee) on the terms
and effect of this Agreement and in particular its effect on the Employee’s ability to pursue the claims
specified at clause 6.1.1 of this Agreement”.
Was the Agreement a Qualifying Settlement Agreement?
14. The Claimant submitted that the ET erred by omission. The ET had considered whether the
Agreement was a “qualifying settlement agreement” under reference to common law principles but
had omitted to consider the Claimant’s submission that he could not settle a claim before the cause
of action accrued. Mr Bain, on behalf of the Claimant, submitted that the Respondents could not
lawfully settle a claim unless it related to “the particular complaint” as defined by s. 147(3) (b) of the
Act. In his submission those words described a claim that had been brought or was at least capable
of being brought under the Act.
15. It was submitted that since the Claimant had no basis for claiming discrimination until the
Respondent decided not to pay the Additional Payment his right of action did not accrue until after
he had left the Respondent’s employment. In these circumstances any reference to a claim of age
discrimination in the Agreement did not qualify as “the particular complaint”. While the Claimant
was aware that the terms upon which Additional Payments were paid was the subject of discussion,
he could not know the outcome of these discussions and did not know whether his employer would
decide if he was eligible or not. It was submitted that any term that purported to settle his claim for
age discrimination in those circumstances was void. The terms of the statute did not permit settlement
of a claim that had not crystallised or whose existence was unknown at the time he left employment.
16. I was referred to an excerpt from Hansard. In it Viscount Ullswater touches on the expression
“particular complaint” in what was to become s. 203 of the ERA. Counsel for the Claimant submitted
that s. 203 paralleled s. 147(3) in the Act. Viscount Ullswater stated –
“We are proposing that these procedures should only be available in the
context of an agreement which settles a particular complaint that has
already arisen between the parties to that complaint.”
Hansard [House of Lords Debates] Vol 545, 6 May 1993, col 904.
17. The Claimant submitted that I should interpret, “the particular complaint”, with this statement
of Parliamentary intention in mind. It refers to a complaint that had “already arisen”. Since the claim
in this case depended on discussions whose outcome was unknown, the parties could not settle any
future complaint of age discrimination.
18. I was referred to Hilton UK Hotels Ltd v McNaughton EATS/0059/04 a decision of the
EAT. Although this case is concerned with s. 77(3) and (4A) of the Sex Discrimination Act 1977 the
words “the particular complaint” that appear in s. 147(3)(b) of the Act appear in the 1977 Act in a
similar statutory context. It was submitted that the case provided a helpful summary of the law. In her
summary at paragraph 20 Lady Smith refers to University of East London v Hinton 2005 ICR 1260
and notes that the Court of Appeal held that the words “particular complaint” do not mean that there
has to be an actual complaint before the ET. Mummery, LJ stated that settlement was permitted in
relation to “anticipated proceedings in relation to a claim or complaint raised between the parties prior
to the compromise, though not the subject of any actual proceedings” (see paras. 16 and 17(6)). Lady
Smith also noted that according to Lunt v Merseyside TEC Ltd [1999] ICR 17 blanket compromise
agreements were unlawful. This is vouched at pp. 23H-24B of Lunt. In Hinton (para. 33) Smith LJ
dealing with an analogous provision of the ERA stated, “section 203(3)(b) [of the ERA] must be
construed as requiring the particular proceedings to which the agreement relates to be clearly
identified. It is not sufficient to use a rolled-up expression such as “all statutory rights.” Lady Smith
went on however to state that although blanket agreements were prohibited, an agreement that
identified “an actual or potential claim… by a generic description or a reference to the section of the
statute giving rise to the claim” was lawful (para. 20). Lady Smith based her summary in this
connection on Hinton. Lady Smith stated a fourth proposition that runs as follows –
“Whilst parties may agree that a compromise agreement is to cover
future claims of which an employee does not and could not have
knowledge, to do so effectively, the terms of their agreement must be
absolutely plain and unequivocal.”
19. This is based on paragraph 9 of Royal National Orthopaedic Hospital Trust v Howard
[2002] IRLR 849 a decision of the EAT. In Howard the EAT stated –
“If the parties seek to achieve such an extravagant result that they
release claims of which they have and can have no knowledge, whether
those claims have already come in existence or not, they must do so in
language which is absolutely clear and leaves no room for doubt as to
what it is they are contracting for. We can see no reason why as a matter
of public policy a party should not contract out of some future cause of
action.”
20. Howard therefore makes it clear that an employee can release his employer from a claim of
which they can have no knowledge. Lady Smith went on to articulate a fifth principle at paragraph
21 but it concerns a matter that does not arise in this case.
21. The Claimant’s counsel advised that he had made both written and oral submissions about the
meaning of “the particular complaint” and s. 147(3) (b) at the ET. The ET’s judgement does not refer
to these submissions in its judgement. It was submitted that the ET had overlooked the Claimant’s
submission and that an error of law had occurred. It may be that the ET did not consider it needed to
address the point if it considered itself bound by Howard and McNaughton.
22. The Respondents submitted that the Agreement satisfied the statutory test set out in s.
147(1)(b). They submitted that the phrase “relates to” in section 203(3) (b) indicated that there need
only be a broad connection between the settlement agreement and “the particular complaint”. That
being so it was permissible to settle future claims of which the Claimant could not be aware. The
Respondents submitted that in the present case the settlement of any age discrimination claim that
might arise was not under a general waiver or a “rolled up expression” and that as a result the terms
of s. 147(1) (b) were satisfied.
Reasoning and Decision on Ground 1
23. According to s. 147(1) (b) a qualifying settlement agreement is one that “relates to the
particular complaint.” The Courts have considered the meaning of these words in a number of cases.
The most authoritative is the decision of the Court of Appeal in Hinton. In that case the claimant had
taken a redundancy package and purported to settle any claims he had with his employer. The
agreement included a general settlement clause in relation to all claims that Dr Hinton had or might
have as well as a detailed clause which listed various types of claim and employment statutes. The
claim that Dr Hinton had lodged was based on s. 47B of the ERA. This type of claim was not listed
in the agreement. This was a surprising omission since Dr Hinton’s advisers had referred to public
interest disclosures under the ERA before the settlement agreement was reached (p. 1264B).
The question was whether he was entitled to proceed with his claim given the terms of the agreement.
Court of Appeal held he was because the general waiver did not satisfy the terms of s. 203 of the
ERA, the equivalent of s. 147 of the Act. It held that a general waiver was not a settlement of “the
particular complaint”. It further held that had the agreement mentioned public interest disclosures or
s. 47B of the ERA he would have been prevented from proceeding. Smith LJ put the matter as follows
In my judgment, in order to comply with section 203 the particular claims
or potential claims to be covered by the agreement must be identified, as
Mr Hare suggested, either by a generic description such as “unfair
dismissal” or by reference to the section of the statute giving rise to the
claim.
It is necessary however to recollect that in Hinton the claimant was not dealing with a hypothetical
claim that might or might not arise in the future. Dr Hinton had intimated his belief that he had a right
of action under s. 47B of the ERA. The facts and circumstances he considered gave rise to his ground
of action had occurred. Mummery LJ’s observations have to be read with this in mind. When he
explained that the words “the particular complaint” did not mean an actual complaint he was seeking
to show that it was not necessary for a complaint to be before a tribunal. Provided the claimant had
grounds to commence a complaint that was sufficient. Hinton is not authority for the proposition
that the words “the particular complaint” mean a complaint that may or may not occur at some point
in the future. It is authority for the proposition that a known complaint can be settled.
24. In this case the Clamant had entered an agreement that waived his right to pursue what the ET
described as a “long list of claims” (para. 37). The list referred to “direct or indirect discrimination”,
“age” discrimination and s. 120 of the Act. The Respondent submitted that this meant that “the
particular complaint” had been identified. I do not accept this submission.
25. First, it is contrary to the statement of Parliamentary intention referred to above. Viscount
Ullswater said that the agreement must be one “…which settles a particular complaint that has already
arisen between the parties to that complaint”. The words “already arisen” indicate that a right of action
has emerged. These words indicate that possible future causes of action were not in view. Second, it
is a construction that is contrary to the broad purpose of the section. In Hinton Mummery, LJ stated
in connection with the parallel provision of the ERA –
“On general principles of statutory interpretation the conditions should
be construed, so far as is possible, to promote the purpose for which they
are imposed, that is to protect employees when agreeing to relinquish
the right to bring proceedings under the 1996 Act in the employment
tribunal (para 17(4)).”
In the same case Smith LJ stated –
“…the purpose of section 203 is clear. It is to protect claimants from the
danger of signing away their rights without a proper understanding of
what they are doing.”
In this case the Claimant signed away his right to sue for age discrimination before he knew whether
he had a claim or not. While that may be possible at common law, the Act restricts parties’ ability
to do so. Third, it would appear to me that the inclusion of a claim in a compromise agreement defined
merely by reference to its legal character or its section number does not satisfy the language of s. 147.
The words “the particular complaint” suggest that Parliament anticipated the existence of an actual
complaint or circumstances where the grounds for a complaint existed. I do not consider that the
words “the particular complaint” are apt to describe a potential future complaint. I accept that
language can be used loosely and that ordinarily a complaint might include a potential complaint. But
in my opinion the precision of the statutory language excludes this possibility. The Act uses the
definite article in combination with the words “particular complaint”. I consider this does not permit
clauses that list a series of types of complaint by reference to their nature or section number. It does
not seem to me that there is any difference in principle between a “rolled up” waiver and a waiver
which lists a variety of possible claims by reference to their nature or section number. Both are general
waivers. All that distinguishes them is the particularity with which they have been drafted. I do not
consider that one provides any more protection than the other. I consider that both approaches fall
foul of the guidance given by Mummery LJ and Smith LJ in Hinton.
26. I was also directed to a number of EAT cases. Particular emphasis was laid on McNaughton.
It is useful because it contains a summary of the legal principles derived from the cases. Of the five
mentioned by Lady Smith only the third and fourth are of relevance to this case. The third principle
stated by Lady Smith was that blanket settlements will not do. In support of this principle she cites
Lunt. This is uncontroversial. She goes on however to say that “potential” claims may be settled by
agreement provided the nature of the claim or the section relied on is stated. This is based on Hinton.
As I have explained Hinton addresses a different situation. Mummery LJ’s observations about
potential claims must be read in the context of the case. A potential claim is one that although known
to the parties has not been brought to the tribunal (p. 1267B-C). Thus understood this principle is
also uncontroversial. The fourth principle stated by Lady Smith is that claims may be settled even if
they are ones of which the employee does not and could not have knowledge (paragraph 20). This
appears to apply to the facts of this case. However on closer inspection I do not consider that this is
so. Her principle is based on Howard. Howard however does not discuss the statutory restrictions
imposed by s. 147 or its equivalents. No submission was made to it in relation to the meaning of the
words “the particular complaint”. Howard was concerned with the law of contract. The excerpt from
the judgement of the EAT judge JR Reid QC refers to “public policy”. Public policy has no role to
play in the interpretation of s. 147. Public policy in that connection is a matter for Parliament. That
being so I do not consider that the fourth principle in McNaughton has any bearing on this case.
McNaughton was concerned with s. 77(4A)(c) of the Sex Discrimination Act 1975 as opposed to s.
77(4A)(b) the subsection containing the words under scrutiny on this case and with various issues of
contractual construction.
27. I accept that this conclusion may be inconvenient where there is a mutual desire to avoid
future claims and a wish to end the employment relationship permanently. Nevertheless it seems to
me that Parliament did not consider that a settlement of the sort seen in this case was desirable and
legislated to prevent them.
28. I do not consider that the limits Parliament places on settlement can be elided by contract.
Thus even though the Agreement uses the words “intimates” and “asserts” in relation to possible
future claims, this terminology does not convert a claim that cannot be intimated or asserted into a
claim covered by the Act. Equally, describing these future and unknown claims as “the particular
complaint” is futile. The statute’s words have an autonomous meaning.
29. In Lunt v Merseyside TEC Ltd [1999] ICR 17 Morison J sitting in the EAT was asked to
consider a compromise agreement that purported to settle a variety of claims. These claims had been
the subject of correspondence and a settlement agreement prior to tribunal proceedings being
commenced. Morison, J considered s. 203(3)(b) of the ERA96 which like s. 147 of the Act stated
that a compromise agreement “must relate to the particular complaint”. Morison, J commented as
follows
“A compromise agreement cannot, therefore, seek to exclude potential
complaints that have not yet arisen on the off-chance that they might be
raised; it cannot, in other words, be used to sign away all the employee’s
tribunal rights, as can be done in the case of a negotiated settlement
drawn up with the assistance of a conciliation officer.”
30. These remarks relate to the wording of the ERA96 s. 203(3) (b) and support the interpretation
of s. 147 set out above. While the prospect of a future age discrimination complaint was more than
an “off chance”, to use the language of Morison, J it was insufficiently certain to come within the
ambit of a qualifying legal settlement.
31. I therefore conclude that the Agreement could not settle the Claimant’s claim of age
discrimination.
Jurisdiction
32. The Respondent cross appealed the ET’s conclusion that it had jurisdiction to hear the claim.
They submit that although the ET was correct to treat the claim as a post-employment claim under s.
108 of the Act, the ET misinterpreted the relevant statutory provisions.
33. The ET’s conclusions in this connection are expressed as follows (para. 72) –
“It appears to me that it would have been entirely possible for Section
81 to have been framed in such a way that it covered claims under
Section 108 as well as claims under Part 5.
I note that section 120 which confers jurisdiction on the employment
tribunal refers separately to part 5 and to sections 108, 111 and 112. I
do not believe it is possible to read the legislation as somehow showing
that a claim under Section 108 arising out of an employment
relationship somehow becomes a claim under Part 5. I can also see that
there may be arguments for treating such claims differently.
It therefore appears to me that Section 81 has no application in the
present case. I am therefore required to look at the issue of territorial
scope on the basis that there is no specific provision in the Equality Act
in respect of the territorial scope of claims made under Section 108. I
would agree with the claimant’s representative that in those
circumstances it is appropriate for me to approach matters in the same
way as the higher courts have approached the matter of the territorial
scope of the unfair dismissal provisions contained in the Employment
Rights Act 1996 which contains no specific provisions relating to
territorial scope. I also note the concession made by the Respondents’
representative that the outcome of such an approach is that the claim is
within the territorial scope of the Equality Act. On that basis I consider
that the claim made by the claimant in this case is one which is within
the territorial scope of the Equality Act and the tribunal has jurisdiction
to hear it.”
34. In summary the ET concluded that s. 81 determined whether a person had a right to claim
during the course of employment but had no application where employment had ceased. The regime
established by s. 81 and the Regulations made thereunder had no application in relation to claims
under s. 108.
Reasoning and Decision on Ground 2
35. Mr Napier KC for the Respondents advised me that the Respondents had submitted that on a
proper construction of ss. 81, 108 and 120 the Act did not permit those who had worked outside UK
and EEA territorial waters to bring claims under s. 108 after their employment was over. He advised
that the Respondents also addressed the possibility that ss. 81, 108 and 120 did not address the
position of persons such as the Claimant and whether in those circumstances the principles in Ravat
were applicable. The Respondent accepted the ET’s conclusion in relation to Ravat. But the
Respondent submitted that it had erred in rejecting the submission that the terms of the Act excluded
the Claimant’s claim.
36. S. 81 extends the ambit of Part 5 of the Act to “(a) work on ships, (b) work on hovercraft, and
(c) seafarers”. S. 81(5) defines a seafarer as “a person employed or engaged in any capacity on board
a ship or hovercraft”. The parties appeared to accept that s. 81(1) (a) and (b) did not apply to the
Claimant at cessation but were in disagreement as to whether he was a seafarer under paragraph (c).
The Claimant submitted that he had ceased to be a seafarer. The Respondents submitted that he was
a seafarer and was covered by s. 81 and the Regulations made thereunder. The ET’s Findings in Fact
disclose that for the last 6 months of his employment he was not sailing on the Deep Blue but was
ashore. The Respondent submitted that in this time his status remained the same. While he could not
be said to be working on a ship, he remained a seafarer until the termination of his employment since
this expression referred to his status as opposed to the work he was performing at termination.
37. Mr Bain for the Claimant submitted that once he ceased to sail on the Deep Blue and took up
a shore job with the Respondents he ceased to be a “seafarer” within the meaning of s. 81. There a
seafarer is defined as “a person employed or engaged in any capacity on board a ship or hovercraft”.
The Claimant submitted that since he was not “on board a ship” when dismissed he fell outside s. 81.
38. The problem with this approach to interpretation is that it results in absurdity. A person
employed on a boat, particularly when it is tied up, might embark and disembark many times a day.
It could not have been Parliament’s intention that he should gain rights when he disembarked only to
lose them again on embarking.
39. The Claimant pointed out that there was nothing absurd about an employee gaining or losing
rights according to his or her location. Mr Bain submitted that the rights of those employed aboard
an EEA ship change when they move in or out of UK waters. He submitted that the rights of those
who work on a UK registered ship change when they move to a non-UK registered ship. I accept that
ship movement can lead to changes in legal regimes. I also accept that the registration of the ship has
legal consequences for those that work on her. But it does not seem to me that this undermines the
Respondents’ argument. Changes of that nature are predictable and certain. But the approach the
Claimant urges on me would mean that if the Claimant was on a boat when the discriminatory conduct
occurred he would be protected by the Act. That is a variable and unpredictable state of affairs. I am
not attracted to the idea that Parliament intended to provide protection to a seafarer provided he or
she could show that at the material time he or she was physically on board a ship.
40. It seems to me more likely that “on board” is a colloquialism. In ordinary speech if someone
is said to work on board a ship all that is meant is that the person habitually works on board a ship –
not that he works on a ship all the time. Thus if the seafarer was habitually employed on a boat but
was ashore for a month to recuperate from an illness or attend a training course, he would remain a
seafarer. As the Respondents pointed out if the construction contended for by the Claimant is correct
s. 81(1)(a) and (b) are unnecessary. S 81(1) states that “This Part applies in relation to (a) work on
ships, (b) work on hovercraft, and (c) seafarers”. If it is necessary to be on a ship or hovercraft in
order to be a seafarer, s. 81(1)(c) adds nothing to s. 81(1)(a) and (b). I consider that in interpreting
the statute I should lean towards a construction that gives purpose to the all the words used and avoids
surplusage.
41. In deciding whether the Claimant was a seafarer at termination I consider it is appropriate to
take account of the fact that he had worked on a ship for most of his working life. Although he came
ashore for the last 6 months, this was a small fraction of his career with the Respondents. In that time
his job description remained the same. To begin with it was anticipated that he would be reassigned
to another ship. That did not materialise. The latter part of the period was occupied by the redundancy
process. For the reasons given above I consider that a person whose life was spent working on ships
does not cease to be a seafarer just because at the end of his career he was not aboard a vessel. If the
definition of a “seafarer” does not depend on being on board a ship, it may be that this designation
could be lost if the person ceased to be eligible to sail on a ship or hovercraft. But Mr Bain did not
submit that the Claimant lost the status of seafarer at some point in the six months he was working
on shore. It is not necessary therefore to address that possibility. In any event the Findings in Fact do
not address the question of when after he came ashore he lost the status of “seafarer”.
42. I was directed to Walker v Wallem Shipmanagement Ltd [2020] ICR 1103. It deals with a
person who applied for employment on a ship that was flagged overseas and operated outside UK
and EEA waters. The employer discriminated against her on the grounds of sex. The EAT held that
the Act had no application to her case. Kerr J. in the EAT accepted that the exclusion of Part 5 brought
about by section 81(1) was not restricted to persons actually employed on ships, but also extended to
those recruited to do such work. (para. 35). The EAT rejected a submission that because the
prospective employee was not at the time of discrimination an employee or working on a ship, the
Regulations did not apply. Although the question of statutory interpretation raised in Wallem does
not arise in this case (para. 27) I consider that the view I have formed is consistent with Wallem.
43. The next issue concerned the interaction of s. 81, s. 108 and s. 120. It was common ground
that the purpose of s. 81 was to define the application of the Act to those who were not subject to the
territorial jurisdiction of the UK because they worked on ship or hovercraft. Reading matters short it
was accepted that the Act extended its jurisdiction to those who worked in UK or EEA waters and
who worked on ships registered in the UK. The Claimant as I have noted was not subject to the Act’s
jurisdiction because he worked outside UK and EEA waters and on a Bahamas registered ship. It was
also common ground that the purpose of s. 108 was to define the circumstances in which a person
could bring a claim after employment had ceased. In order to explain the purpose of s. 108 I was
referred to Coote v Granada Hospitality Ltd 1999 ICR 100 and to Butterworth v Police and Crime
Commissioner’s Office [2016] ICR 456 to show how it has been interpreted and applied. Finally the
purpose of s. 120 was to define the jurisdiction of employment tribunals in relation to the rights
conferred by the Act. It confers jurisdiction on ETs over claims under Part 5 of the Act and claims
arising from other sections such as s. 108.
44. It seems to me that the question of whether a person who would not have had the right to bring
a claim of age discrimination under s. 81 can acquire the right to do so after employment is over
depends on the role of s. 108. As the ET pointed out s. 81 was does not address post cessation rights.
But that is because post cessation rights are not dealt with in Part 5. In Part 5 the Act is dealing with
rights arising during employment. The silence of s. 81 in this connection is not significant. It does
appear to me however that the wording of s. 108(1)(b) makes the measure of a person’s post cessation
rights dependent on his employment rights. It permits a former employee to bring a claim if the former
employer engages in conduct that would be discriminatory “if it occurred during the relationship”.
This is a deeming provision. Thus if the Respondent had made a decision that discriminated against
the Claimant prior to cessation, his ability to bring a claim would depend on whether the decision was
lawful discrimination. In this case such a decision would have been lawful because the Act had no
application to persons such as the Claimant. Parliament’s intention was that the lawfulness of conduct
after employment should be measured by its lawfulness prior to termination. Thus if it would not be
lawful to withhold an employment reference, or restrict gym membership or withhold a payment
during employment, it would not be lawful after termination. In this case the Claimant did not have
the right he now relies upon before his employment was terminated. That being so he cannot have
such a right after termination. The claim is excluded by the express words of the statute. It is not
possible to make a distinction between claims that are unlawful because they do not fall within the
anti-discrimination provisions of the Act and those that are unlawful because they fall outside the
jurisdiction of the Act.
45. The UK’s Convention obligations explain why Parliament drew a distinction between those
who sail outside UK or EEA waters and those who sail within those waters. It does not strike me as
strange that a person who would not have been able to claim during his or her employment because
their work was outside UK and EEA waters and on board a foreign flagged ship should be unable to
claim for an act of discrimination that would not have been justiciable during employment. On the
contrary it would be a consistent approach. Whether Parliament would consider it a desirable state
of affairs is another matter. To give the Claimant a right after employment he did not have during
employment would require a rewording of the statute.
46. I acknowledge that it may seem strange that it is lawful to discriminate against the Claimant
given that he is resident in the UK. In this connection however it is necessary to notice that s. 108 is
designed to deal with all forms of post-employment claims. While some retire and settle in the UK
others may take up employment on another ship which may also be flagged overseas and sail outside
UK and EEA waters. It would not appear to me that the location or status of the employee post-
employment is a relevant consideration. The right to make a claim under s. 108 derives from the fact
that the person was formerly employed or a worker. If the ET was influenced by the fact that the
Claimant was no longer a seafarer and therefore not subject to the regime established in Part 5 and
the considerations that led to the enactment of s. 81, I consider it misled itself.
47. I can detect no absurdity in the construction I prefer. I think that where an employee has
accrued pension rights during employment and where the employer makes a decision post-
employment as to how these rights are to be operated it would be understandable if Parliament
intended the lawfulness of the decision to withhold certain benefits to be subject to the regime that
applied during employment.
48. Turning to the ET’s reasoning I accept that it would have been possible to draft s. 81 so as to
make it plain that it applied to claims under s. 108. As I have indicated however I consider that the
reason why s. 81 makes no reference to post-employment claims is because it is addressed to claims
made during employment under part 5. It is not addressing post-employment claims. That explains
the silence. It does not follow however that the Act is silent on the issue of jurisdiction.
49. The ET also notices that s. 120(1) (b) draws a distinction between part 5 claims and those
under s. 108. Nothing follows from this. As I have indicated the distinction is simply a consequence
of the scheme of the Act. I consider s. 108 “relates to” Part 5 because any right under s. 108(1) (a)
“arises out of or is closely connected to” from the employee’s employment under Part 5. The words
“relates to” acknowledge that post-employment claims have a relationship with rights enjoyed during
employment.
50. The ET states that there “may be arguments for treating such claims differently”. Those
arguments are not explained. It may be that the ET thought that since the Claimant was now retired
and based in the UK, he should not be subject to a regime designed for seafarers. It may have thought
that since promoting equality and avoiding age discrimination was a valuable social objective it
should if possible read the Act so as to secure that objective. Since I consider that the meaning of
the Act is clear I do not consider that I should have recourse to the Marleasing doctrine (Marleasing
SA v. LA Comercial de Alimentación SA ([1990] ECR I-4135) and seek to produce a construction
of s. 81(1) that limits the exclusion of Part 5. See the Equality Directive 2000/78, which requires the
UK to implement the principle of equal treatment on the grounds of age; and Wittenberg v Sunset
Personnel Services [2017] ICR 1012 at para 64. I note that in Waller the EAT took a similar view
of this matter (para. 35).
51. I also accept the Respondent’s submission that s. 108 was designed to prevent the mischief
identified in Butterworth v The Police and Crime Commissioner’s Office for Greater
Manchester & Anor [2016] ICR 456, per Langstaff P at para. 19. It was not designed to create a new
ground of jurisdiction nor should it be taken by default to qualify the rules on tribunal jurisdiction
found in s. 81.
52. It follows from the above that it is not necessary to consider whether the ET had jurisdiction
in terms of Ravat v Halliburton [2012] ICR 389 and Lawson v Serco [2006] ICR 250.
Conclusion
53. In these circumstances I shall allow the Claimant’s appeal in relation to Ground 1 and hold
that the ET erred in law in that the Agreement was void in that it did not comply with s. 147 of the
Equality Act 2010. In relation to Ground 2 I further hold that the ET erred in law in holding that it
had jurisdiction to hear the claim on Ravat principles and hold that the claim was excluded by the
terms of section 81 of the Equality Act 2010. The cross-appeal is accordingly allowed and the claim
dismissed.
54. I should also record my appreciation for the skilful and thorough presentation of the appeal
by Mr. Napier KC and Mr. Bain.
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