The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011
(Limited Text - Ministerial Extracts only)
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The Parliamentary Under-Secretary of State for Transport (Mike Penning)
I have today laid before the House draft affirmative regulations which, if approved, will apply part 5 (Work) of the Equality Act 2010 to work on ships and hovercraft and to seafarers.
The regulations will ensure that, as far as possible, the level of protection afforded under part 5 of the Equality Act 2010 is extended to those working at sea. This was not done at the time that part 5 of the Act was commenced because further consideration needed to be given to the issue of seafarers’ pay.
As the law currently stands, section 9 of the Race Relations Act 1976 provides that it is not unlawful for seafarers to be paid different rates of pay on the basis of their nationality if they were recruited outside Great Britain. This includes seafarers from EEA states and designated states, which are states with particular bilateral agreements with the European Union. The European Commission has been investigating a complaint that UK law does not comply with European Law and in January this year it issued a reasoned opinion on that basis. In order to meet its treaty obligations, the Government are obliged to bring UK law into line with European law.
The regulations which I have laid before the House today will, if approved, apply part 5 of the Equality Act to work on ships and hovercraft and to seafarers. The Government are already committed to the Equality Act, most of which, including part 5, was commenced on 1 October 2010. The international nature of the shipping industry requires further clarity in specifying to which seafarers, working on which vessels, operating in which waters, part 5 of the Act applies. The relevant provisions legislate in respect of employment, offering protection from discrimination, harassment and victimisation in relation to certain protected characteristics, these being age, disability, gender reassignment, pregnancy and maternity, race, religion and belief, sex and sexual orientation. Section 81 of the Act contains the power to achieve this by means of an affirmative statutory instrument.
The power within section 81 is also wide enough to legislate in respect of differential pay. The regulations will, if approved, provide that it is not unlawful to offer to pay or pay different rates of pay to seafarers (applicants, employees and contract workers), other than those from EEA or designated states, if a person applies for work as a seafarer or is recruited as a seafarer outside Great Britain.
Under section 19 of the Equality Act (indirect discrimination), where an apparently neutral provision, criterion or practice has an effect which particularly disadvantages seafarers from EEA or designated states in terms of a difference in pay, this will nevertheless be lawful if the employer can show that the provision, criterion or practice is objectively justified. If differential pay were challenged by a seafarer from an EEA or designated state, it would be for the employer to satisfy an employment tribunal as to that justification.
The Government have consulted ship owners and the Chamber of Shipping as well as the trade unions before proceeding with this measure and have prepared an impact assessment. In preparing these regulations, we have applied the principles of our reducing regulation initiative and taken every care to ensure that the regulations meet the requirements of EU law without unwarranted elaboration, the better to safeguard the continued competitiveness of the UK fleet. We remain committed to the red ensign and to maintaining a sizeable, high-quality and highly competitive fleet under the UK flag.
In accordance with Government policy on transforming the role of regulation in our society and reducing regulation, these regulations will be reviewed every five years and the conclusions of such reviews will be published.
These regulations will apply in England, Wales and Scotland while Northern Ireland will shortly be introducing similar regulations.