Bathgate v Technip UK Ltd & Ors [2022] EAT 155

Appeal and cross-appeal against the dismissal of the Claimant's claims of age discrimination after the Respondent decided not to pay him a pension payment because of his age. Appeal and cross-appeal allowed and the claim was dismissed.

The Claimant was a seafarer who was made redundant at the age of 61 - he had been working in a variety of onshore roles for a few months prior to being made redundant. 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. The settlement 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. 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 (which included the Claimant). 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. The ET held that on ordinary contractual principles he had lawfully settled his claim. The Claimant appealed on the ground that s147 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. The Respondents cross appealed and submitted that the ET did not have jurisdiction to hear the complaint of age discrimination since under s81 of the Equality Act 2010 and the Regulations made thereunder the Claimant was outside the jurisdiction of the Act because seafarers were excluded (the Claimant claimed that as he was onshore at the time of dismissal, he was not a seafarer).

The EAT allowed the appeal and the cross-appeal. Regarding the appeal, s147 of the Equality Act prevented settlement of claims before their existence was known and that the case law was not to the contrary effect. Regarding the cross-appeal, the Claimant 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 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 s108 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.

Published: 28/11/2022 15:19

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