ALF MAGNE HORNELAND
Medical selection inevitably involves differential treatment of individuals. Some will be allowed to work in a specific position or profession, while others will be denied.
The Universal Declaration of Human Rights (UDHR), adopted in 1948 by the United Nations general Assembly, is now regarded as well-established international law in most countries, whereas other countries disagree, like Saudi-Arabia and Iran. The US Supreme Court limited the effect of international law in one case regarding the Alien Tort Statute and concluded that the Declaration “does not of its own force impose obligations as a matter of international law”. At the time of adoption, eight countries abstained (Czechoslovakia, Poland, Saudi Arabia, Soviet Union, Byelorussian SSR, Ukrainian SSR, South Africa and Yugoslavia), and two countries did not vote (Honduras and Yemen). The UDHR was the first international convention to establish a ‘right to work’ internationally, and is binding for member states, according to the UN Charter. It was the first step towards the establishment of the International Bill of Human Rights, which, in addition to the UDHR, also contains the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. Similar regional charters have been agreed in different areas of the world .
The right to work now seems to be well established internationally, although implementation in national law and compliance vary considerably around the world.
The individual’s right to work primarily is an obligation of the government to establish rules and framework that ensures that people, even if they have a disability, shall have opportunities to have a job. The UN Convention on the rights of persons with disabilities elaborates this in more detail, emphasizing that they shall enjoy full equality under the law. The ILO further focused on the issues in the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159).
The right to work for people with disabilities and the minimum requirements for medical fitness of workers sometimes can be seen to challenge each other.
The lawful differential treatment of workers, according to Norwegian legislation reads (bold types by the author):
“Section 9. Lawful differential treatment
Differential treatment does not breach the prohibition in section 6 if it:
a) has an objective purpose,
b) is necessary to achieve the purpose, and
c) does not have a disproportionate negative impact on the person or persons subject to the differential treatment.
In employment relationships and in connection with the selection and treatment of self-employed persons and hired workers, direct differential treatment on the basis of gender, ethnicity, religion, belief, disability, sexual orientation, gender identity or gender expression is only permitted if the characteristic in question is of decisive significance for the performance of the work or the pursuit of the occupation and the conditions in the first paragraph are met.”
The last sentence is a long and complicated one, which regards more than assessment for the ability to work. The bold types make it clearer: “In employment relationships, … direct differential treatment on the basis of … disability … is only permitted if the characteristic in question is of decisive significance for the performance of the work…”
The ‘objective purpose’ is not the tripwire in this context. Most medical fitness standards and criteria have an objective purpose.
It is far more challenging to establish the evidence underpinning the necessity to meet a specific criterion to be able to carry out a specific task or job on board ship. The lack of evidence for setting such a cut-off point for any criterion, is striking. Most pre-employment medical examinations are carried out in a heuristic way (see below), i.e. in a practical way, without ability to demonstrate that it is evidence based, even if it is regarded sufficient for issuing a medical certificate. The sound judgement of the medical examiner often has no other substantiation than a gut feeling, with reference to some rules that also lack evidence for their appropriateness, other than that of expert consensus.
Although statutory PEME schemes probably will not be regarded as discriminatory, the assessment in a single case could violate anti-discrimination principles. According to these principles, referred above, the need to deny someone a medical certificate should not only be sufficient for the objectives of the PEME scheme, rather also necessary. A decision that meet only the sufficient criterion could be far stronger than what is necessary – it would still be sufficient. On the other hand, what is regarded to be necessary, not always is enough to be sufficient! This is the dilemma of the medical examiners: Both criteria should be met at the same time.
How this could apply to the single decision by a seafarers’ doctor, is illustrated by a case for the Norwegian Anti-Discrimination Tribunal in 2019 (see frame).
Norwegian Anti-Discrimination Tribunal - Case No. DIN-2019-440
The Norwegian Anti-Discrimination Tribunal decided that the decision by a seafarers’ doctor to declare a seafarer unfit, was an unlawful direct discriminatory decision because:
The doctor based the decision on the diagnoses HIV+, hepatitis C and syphilis without assessing whether the condition of the seafarer was of decisive significance for performing job tasks. All these conditions can, according to the regulations, lead to temporary or permanent unfitness.
The tribunal concluded:
«Whether provisions for lawful differential treatment are met, must be considered in the particular case. Hence, it is not decisive that the ‘Regulations on medical examination of employees on Norwegian ships and mobile offshore units’, lay down the general principle that differential treatment because of disability can be lawful, necessary and reasonable.»
The practice may be different in other countries, e.g. in UK and Canada where it is more likely that the authorities will be held accountable for discrimination provided the doctor followed the published standards.
Seafarers’ medical examiners should be aware of those issues. In principle, nobody should be denied working on board without an individual risk assessment in relation to the specific tasks and the specific job tasks the seafarer is going to have on board the ship. The medical examiner should bear in mind that being too strict, could violate the human rights to work, whilst being too lenient could violate the obligations to be able to work on board, as well as the safety of ship, crew and self. The result could be delays, diversions, risky evacuations, hospitalisations, repatriations, replacements of crew – and the costs relating to these matters.
 Nisrine Abiad (2008). Sharia, Muslim states and international human rights treaty obligations: a comparative study. BIICL. pp. 60–65. ISBN 978-1-905221-41-7.
 Littman, D (February–March 1999). "Universal Human Rights and Human Rights in Islam". Midstream. Archived from the original on 2006-05-01.
 United States, the Supreme Court in Sosa v. Alvarez-Machain (2004)
 "Yearbook of the United Nations 1948–1949 p 535" (PDF). Archived from the original (PDF) on September 27, 2013. Retrieved 24 July 2014.
 Universal declaration of human rights, article 23.1
 International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations General Assembly. Resolution 2200A (XXI) on 16 December 1966, and in force from 23 March 1976
 International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted by the UN General Assembly on 16 December 1966, in force from 3 January 1976.
 African Charter on Human and Peoples’ Rights, Organisation of African Unity
 Convention for the Protection of Human Rights and Fundamental Freedoms, or European Convention on Human Rights (ECHR) of 4 November 1950, in force from 2 September 1953
 Convention on the Rights of Persons with Disabilities (CRPD), signed 23 March 2007, effective from 3 may 2008
 Act relating to equality and prohibition against discrimination (Equality and Anti-Discrimination Act) of 16th June 2017, No. 51.
 The Norwegian Anti-Discrimination Tribunal, Case No. DIN-2019-440. https://lovdata.no/pro/#document/DIN/avgjorelse/din-2019-440?from=SF/forskrift/2014-06-05-805/ assessed 2021-09-23
 Personal communication Tim Carter 2019