England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM EMPLOYMENT TRIBUNAL

		Royal Courts of Justice Strand London WC2A 2LL Thursday 6 September 2001

1. LORD JUSTICE PETER GIBSON: This is a renewed application for permission to appeal, permission having been refused on paper by the single Lord Justice.
2. The applicant, Mr Jayasuriya, wishes to appeal from the dismissal by the EAT on 2 February 2001 of his appeal from the decision on 25 February 2000 of an Employment Tribunal sitting in Nottingham. By that decision the tribunal held that Lincs Turkeys Limited ("the company") was not a proper respondent to a complaint of racial discrimination brought against it by Mr Jayasuriya.
3. Mr Jayasuriya is an asian. He was a meat inspector employed since 1979 by the first respondent, Meat Hygiene Service ("MHS"), which is an executive agency of the Ministry of Agriculture, Food and Fisheries. In November 1995 Mr Jayasuriya was appointed to be the sole MHS inspector at a turkey slaughterhouse run by the company. The Poultry, Meat, Farmed Game Bird Meat and Rabbit Meat (Hygiene and Inspection) Regulations 1995, made pursuant to the Food Safety Act 1990, govern the appointment by the Minister of such an inspector. By regulation 4 no person can use any premises as a slaughterhouse, cutting premises, a cold store or a re-wrapping centre unless the premises are currently licensed by the Minister. Regulation 8 deals with supervision of licensed premises. By regulation 8(1):

"The Minister .... shall in relation to any licensed premises, appoint one or more official veterinary surgeons, in each case to be an authorised officer of the Minister authorised to act in relation to the examination and seizure of meat, to provide the health certification of fresh meat .... and to be responsible for .... functions ...."

which are specified in five lettered sub-paragraphs in that Regulation. By regulation 8(2):

"Subject to paragraph (4), the Minister shall, in relation to any licensed premises, appoint such number of persons to act as inspectors in relation to [those] functions as appears to him to be necessary for the proper performance of those functions."

4. But paragraph (4) makes clear that the Minister may decide not to appoint any inspector:

"In considering whether it is necessary to appoint any inspector or inspectors in relation to any licensed premises, the Minister shall have regard to the availability at those premises of any plant inspection assistants."

5. By regulation 11 the Minister has a discretion in relation to any licensed premises whether to authorise persons employed at those premises to act as plant inspection assistants. By regulation 8(3) an inspector who is appointed is to act under the supervision and responsibility of an official veterinary surgeon. Other regulations provide for charges to be imposed by the Minister having regard to what takes place on the inspection. My attention has particularly been drawn to the fact that the Minister has a duty to consult persons likely to be affected by the hourly rates which form the basis for determining some of the charges imposed by the Minister.
6. Mr Jayasuriya was present at the premises of the company for the years after he was appointed in 1995 until his dismissal which occurred in the following circumstances. He alleged that for a long period he was subject to racial taunts by the employees of the company, that it caused him distress and that those who had been taunting him conspired to arrange what he says was an unjustified complaint which led to his suspension and eventual dismissal. He says that the company acted improperly because of the actions of the employees under the company's control and that their actions were prompted by racism.
7. Mr Jayasuriya was dismissed for gross misconduct by MHS on 16 June 1999 after a disciplinary hearing. He complained on 14 September 1999 to the tribunal alleging race discrimination and unfair dismissal. He complained against both MHS and the company. The complaint of race discrimination against the company, which was not his employer, was dependent on him being able to bring his case within section 7 of the Race Relations Act 1976. This provides, so far as material:

"(1) This section applies to any work for a person ('the principal') which is available for doing by individuals ('contract workers') who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.

(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a contract worker-

(a) in the terms on which he allows him to do that work; or

....

(d) by subjecting him to any other detriment."

8. The main question for the tribunal was whether Mr Jayasuriya was supplied to work for the company under a contract. The tribunal found on the facts of the case that no contract existed between MHS and the company. It expressed its conclusion thus:

"Both Respondents were merely fulfilling the statutory obligation and had no relationship in contract. Can we extend the wording of Section 7 to include that category? Clearly this is not a case where Parliament failed to appreciate the position of the statutory official. Employment legislation generally does not cover statutory appointments. There are specific statutory exclusions. Official enforcing statute are not a tiny overlooked minority. In many walks of life the independent inspector or official plays a part. They have a remedy in some cases against the primary employer but not against those whom they officiate over. But then neither does the shop assistant have, before us, a remedy against racist customer.

We hold that the [company] is not a principal within the meaning of Section 7. Whilst we have sympathy with the Applicant's argument for the reasons we have given, we do not think it is for us to infer into the Section something that isn't there."

9. Accordingly the tribunal held that the company should be dismissed from the action. That left Mr Jayasuriya's case still proceeding against MHS.
10. Mr Jayasuriya appealed to the EAT. It was argued on his behalf that a contract could be implied and that a purposive construction should be adopted in order to bring him within the protection of the 1976 Act. But the tribunal rejected that argument saying that it did not have the power to rewrite a statute. The EAT also allowed a new point to be taken by MHS that an inspector does not work for the licensed premises' owner and so the opening words of section 7(1) were not satisfied. The EAT accepted that argument as well. Accordingly the appeal was dismissed.
11. On the application before me today the Mr Jayasuriya is represented by Miss Harjit Grewal and Miss Nicola Braganza. It is argued on his behalf that the tribunal erred in regarding the existence of the regulations and the ability of the Minister to appoint an inspector as precluding the existence of a statutory contract. It is said that the tribunal approached the question entirely on that basis and that the correct approach to the construction of section 7 should be a purposive one so that it does not leave the victim of racial discrimination by an alleged principal as being without a remedy. It is further pointed out that in social legislation of this kind the statute must be construed purposively and with a bias to conferring statutory protection rather than excluding it.
12. It is also submitted that the tribunal erred because it considered the wrong regulations. Although both parties were represented by lawyers (Mr Jayasuriya having a solicitor acting for him, counsel appearing for MHS and a solicitor for the company), it appears that the wrong regulations were placed before the tribunal. The tribunal had the Fresh Meat (Hygiene and Inspection) Regulations 1995 and that is said to make a significant difference.
13. A quite separate point is also taken in relation to the new ground of appeal before the EAT on which the EAT accepted the submissions of the respondents. It is submitted that the question whether Mr Jayasuriya worked for the company was a question of fact and degree on which neither argument nor evidence was provided for the tribunal.
14. As to the error in relation to the regulations, my attention has been drawn to certain differences between the incorrect regulations and the correct regulations. In particular attention has been focused on the fact that the incorrect regulations did not contain provisions relating to the ability of The Minister to authorise employees of the owner of the licensed premises to be plant inspection assistants, whereas under the correct regulations, the availability at the premises of plant inspection assistants may govern whether or not the Minister decides to a point an inspector. I cannot see that that makes any material difference in the present case. What is important is the decision of the Minister to appoint an inspector at the licensed premises which results in the inspector performing his statutory duties. That is what occurred in the present case. The powers of appointment under the two sets of regulations are in similar forms.
15. I accept that section 7 should be construed purposively and that if it is possible to construe the section in a way which will grant greater protection to those complaining about discrimination, then the court should strive to do so. But there are limits on what can be achieved even by a purposive construction. I do not doubt that in particular cases contract workers would be provided with statutory protection which they would not have if the conditions of section 7(1) were read as though they did not contain a requirement that there be a supply of contract workers under a contract made with the principal. It is not possible by a process of construction to ignore that requirement. One must find a contract under which another person supplies the contract worker.
16. What is there in this case that shows that there is arguably such a contract? It has been pointed out that Mr Jayasuriya was present each day at the premises once he was appointed. It is not the case of an inspector making a flying visit and then departing.
17. The tribunal made certain findings of fact. In paragraph 1 it found that Mr Jayasuriya worked at the slaughterhouse for the Ministry under the statutory regulations and was provided with a small office by the company; that his laundry was done by an outside contractor paid for by the Ministry; that save for the occasional use of the telephone and office equipment within his office he was very much the independent inspector at the slaughterhouse. It found that this was not in the usual category of a contract worker who is employed by an employment agency and instructed to work packing turkeys. Such a person would have been under the instruction and control of the line managers of the company. It said that that was a classic contractor worker scenario. But, in this case, it said, the company had no control of Mr Jayasuriya, it was just giving him house room under the basis that statute demanded that it do so; his line manager was not the manager of the company, but he was instructed either by MHS itself or by the official veterinary surgeon employed by the Ministry who attended the slaughterhouse on a daily basis. The tribunal therefore reached its conclusion having regard to those facts.
18. It is argued that the fact that charges are imposed by the Minister on the company pursuant to provisions of certain charges regulations and that consultation is required before the Minister imposes hourly rates, points to the existence of a contract. I cannot see that the fact that charges are so imposed suggest the existence of a contractual basis for the supply of Mr Jayasuriya to work for the company. It is for the Minister to decide the appropriate charges after the consultation.
19. It was also said that there must have been matters agreed between MHS and the company in relation to the supply of Mr Jayasuriya as a contract worker. Unfortunately there is no evidence whatever of any such contract. Nothing has been put before me other than speculation as to what was agreed. Complaint is made that the tribunal reached its conclusion without having the documents put before it by the respondents which would show how and upon what terms the supply came about. That is a complaint which it is far too late to make. I am told that the respondents were asked to provide such documents but refused to do so. It was for the legal advisers of Mr Jayasuriya to obtain an order from the tribunal in those circumstances, if they thought such documentation important, requiring the production of the documents. They could have sought oral evidence if necessary by requiring the attendance of witnesses. None of that was done. I only have the findings of fact to which I have referred and the Tribunal's conclusion.
20. The regulations do not suggest the likelihood of there being any contract by which the inspector is supplied. On the contrary, they authorise the imposition of the inspector on the licensed premises without any contract, and because of the supervisory nature of the functions to be performed by the inspector and because those functions are plainly to be performedin the public interest so as to protect the public in relation to the quality of the meat from the licensed premises, to my mind a contract for the supply of the inpector would be a highly unlikely circumstance. There is simply nothing in the material before the tribunal to suggest that there was such a contract.
21. For these reasons the tribunal's decision cannot be impugned. There is no real prospect of success for an appeal against the basis on which the tribunal reached its decision.
22. The second ground of appeal relating to the EAT's acceptance of the argument that Mr Jayasuriya did not work for the company is not, to my mind, of importance because on an appeal to this court, which would be a second-tier appeal, this court is always more concerned with whether the tribunal is right than with whether the EAT is right in its reasons.
23. For the reasons which I have given, the tribunal decision cannot be impugned. I see no other compelling reason why this appeal should be allowed to go ahead and, thus, despite the attractive and well presented submissions put before me today, I must dismiss this application.
Order: Permission to appeal refused. Legal aid assessment.