England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 25th May 2001

LORD JUSTICE SCHIEMANN :

This is the judgment of the Court.

1. Mr D'Souza was dismissed by the London Borough of Lambeth ("the Council") in 1990. He commenced proceedings alleging unfair dismissal and racial discrimination. The Council admitted unfair dismissal and paid £12,565 to him including the maximum compensatory award, a basic award and a sum in lieu of notice. An Employment Tribunal in 1992 made an order under what is now s. 114 of the Employment Rights Act 1996 that he be reinstated. Moreover an award of compensation was made to him under the Race Relations Act 1976.
2. However, the Council claimed in a letter of March 1993 that it was not practicable so to reinstate him. He disputed this but this point was resolved against him by another Employment Tribunal in 1995. The Tribunal went on to make a compensatory award for unfair dismissal. He was not, however, prepared to put this episode behind him and start life afresh. He wished for further relief in respect of what had happened to him.
3. So in July 1995 Mr D'Souza started 2 sets of proceedings in respect of the decision not to reinstate him. It is those proceedings with which we are concerned. His case in essence was that the decision not to reinstate him had been caused by continuing discrimination and victimisation.
4. Mr D'Souza has lost the present proceedings on a preliminary point – both the Employment Tribunal and the Employment Appeal Tribunal have held that they had no jurisdiction to consider his complaint. The issue before us is whether they were right to do so. They were clearly reluctant to come to this conclusion but held that they were bound by a previous decision of this court : The Post Office v Adekeye [1997] I.C.R.110. That was a decision which this court at the time regarded as unsatisfactory but inescapable in the light of the wording of section 4 of the Race Relations Act. It is, however, fair to point out that, despite that expression of dissatisfaction by this court, Parliament in passing the Race Relations (Amendment) Act 2000 has not seen fit to alter section 4 of the earlier Act in any relevant respect. Mr D'Souza nevertheless submits that Adekeye should not be followed and has indicated that, if he loses before us, he will seek permission to appeal to the House of Lords so that the point may be reconsidered afresh. However, he also argues that we are not bound by that earlier decision.
5. The preliminary point in essence is this. The Race Relations Act makes provision for compensation for certain victims of certain types of discrimination. Amongst the compensatable victims are those seeking employment and those in employment. It was held in Adekeye that persons seeking to be restored to their former employment by their original employers after having been dismissed fall into neither category and therefore discrimination against them is not a matter for which the Act has made provision. We can fully understand Mr D'Souza's puzzlement that this should be the law.
6. We propose to set out the relevant provisions of the Race Relations Act, to consider what Adekeye decided, whether this on its face concludes the case against Mr D'Souza as the Tribunals below have found, and then finally to consider whether any subsequent enactment or decision entitles us to depart from what was decided in Adekeye. We can indicate now that we consider that we are bound by the decision in Adekeye and that the Tribunals below were right to conclude that it was fatal to Mr D'Souza's case.
7. The Race Relations Act 1976 Section 4

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another - (a) in the arrangements he makes for the purpose of determining who should be offered the employment; or (b) in the terms on which he offers him that employment; or (c) by refusing or deliberately omitting to offer him that employment.

(2) It is unlawful for a person, in the case of an employee employed by him at an establishment in Great Britain, to discriminate against that employee - (a) in the terms of the employment which he affords him; or (b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or (c) by dismissing him, or subjecting him to any other detriment".

Adekeye

8. Ms Adekeye had been dismissed on 8 June 1991. She utilised the internal appeal procedures but her appeal was dismissed on 15 August 1991. She made her complaint to the Industrial Tribunal on 25 September 1991. The issue in the case was whether Ms Adekeye's complaint of racial discrimination in the course of the handling of her internal appeal could be heard when at the material time she was no longer an employee. This Court, upholding the Employment Appeal Tribunal, held that (a) there was no jurisdiction to hear her claim under s.4(2) and (b) during the period of the internal appeal she had no standing to complain under s.4(1).
9. As to her claim under s.4(2) Peter Gibson L.J. said this at page 118:

"I accept the submission of Mr. Greening for the Post Office that giving the words "in the case of a person employed by him" their ordinary and natural meaning in their context, those words mean, and can only mean, "in the case of a person who is employed by him". ... I ... conclude that the appeal tribunal was right to hold that section 4 (2) of the Race Relations Act 1976 protects only those whose employment continues at the time of the act of discrimination.

I turn to Mr. Allen's alternative submission on the meaning of "dismissing" in section 4 (2) (c) on the footing that "employee" means "who is employed". Mr. Allen argued that the internal appeal is an integral part of the dismissal process and that until the appeal was concluded adversely to the employee, that process continued; the rejection of the applicant's appeal was therefore to be treated as her dismissal at a time when she was employed. He characterised the dismissal on 8 June 1991 as only a condition dismissal. In my judgment this is an impossible argument."

10. Hirst and Pill LJJ agreed with him.
11. As to her claim under s.4(1) Peter Gibson L.J. said this at page 118:

"Mr. Allen submitted that there was no reason to limit the application of section 4 (1) to first applications for employment, but the section should be construed in an inclusive way so that the decision of an employee to appeal is treated as in fact a request to have his contract retained in the fullest sense. He said that such a request can properly be characterised as an application for employment and a decision to refuse to allow the appeal can be characterised as a decision refusing or deliberately omitting to offer him that employment. In my judgment so to construe the language of section 4 (1) would not accord with the ordinary meaning of the language of the subsection. It is unrealistic to regard a dismissed employee seeking reinstatement by an appeal against dismissal as seeking an offer of employment. On the appeal the appellant is not seeking an offer which can be accepted or refused; the appellant is seeking the reversal of a decision to dismiss. Further, in my judgment the sidenote to section 4 accurately reflects the substance of subsections (1) and (2): subsection (1) relates to applicants seeking the offer of a job, while subsection (2) applies to those who are employed. This argument therefore also fails.

Finally, Mr. Allen advanced another elaborate argument but based on Community law as well as the Sex Discrimination Act 1975. He drew our attention to the Equal Treatment Directive (76/207/E.E.C.) (O.J. L 1976 L. 39, p. 40) by article 5 (1) of which:

"Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex".

He submitted that this imposed an obligation on the United Kingdom to ensure that there could be no discrimination between a man and a woman on an internal appeal against dismissal even if employment had ceased by the time of the hearing. He referred again to section 6 (1) and ( 2) of the Act of 1975 and he submitted that those subsections should be construed in a way that complied with the Directive. He further submitted that the Act of 1976, being in pari materia, should be construed in the same way.

This is a bold submission. It involves saying that, although the Act of 1976, on its proper construction as a matter of English law, does not protect a person whose employment has ceased and although the Equal Treatment Directive has no application whatsoever to the Act of 1976, nevertheless, to achieve consistency with the [Sex Discrimination] Act of 1975 to which the Directive is relevant, the Act of 1976 should be given a meaning which otherwise it cannot bear. I know of no authority that compels so extraordinary a result."

12. Again, Hirst and Pill LJJ agreed with him.
13. Adekeye was considered by this Court in Rhys-Harper v Relaxion Group Ltd (unreported, judgements delivered 3.5.2001 [2001] EWCA Civ 634). That was a claim under the Sex Discrimination Act 1975. Section 6(2) of that Act provides:

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any detriment."

14. Ms Rhys-Harper's employment had terminated on 22. October 1998 because of misconduct. In November of that year she claimed she had been sexually discriminated against during her employment. It was submitted that when dealing with a claim under the Sex Discrimination Act the Court was not bound by Adekeye. The submission was that the Sex Discrimination Act should be construed in the light of Community Law and that this compelled the conclusion that the complaint fell within s.6(2)(a) properly construed. That claim was rejected by this Court which held that it was bound by Adekeye, that Community Law did not have the effect contended for and that in any event the wording of s.6(2)(a) was perfectly clear.
15. The following paragraphs of the judgment of Buxton L.J. are relevant to some of the arguments which have been advanced in front of us.

"21. In his speech in Anyanwu v South Bank Union [2001] 1 WLR 638 at para 2 Lord Bingham of Cornhill said:

"Since the [Race Relations Act] 1976 is one of a trio of Acts (with the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995) which contain similar statutory provisions although directed to different forms of discrimination, it is legitimate if necessary to consider those Acts in resolving any issue of interpretation that may arise on this Act".

....

22. Lord Bingham's observations ... strongly reinforce an argument ... that when Parliament passes two Acts within a year of each other, which deal with closely related fields, commonsense suggests, and compellingly suggests, that a particular form of words used in the one Act was meant to mean the same as that same form of words used in the cognate Act. It follows from that proposition that a decision by a court in relation to the meaning of the words used in the one Act carries the same authority in relation the same words used in the cognate Act as it does in relation to those words as used in the Act that the court's judgment actually addressed.

23. That was not the view taken by the EAT in Coote. Counsel in that case conceded, as recorded by the EAT at [1999] ICR p. 948G, that the decision of this court in Adekeye, on section 4 (2) of the 1976 Act, was not binding in relation to the construction of the almost identical terms of section 6 (2) of the 1975 Act. That concession caused the EAT to be led by counsel into a detailed critique of the reasoning of this court in Adekeye. That concession should not have been made, and that investigation should not have been embarked upon. That is because, for the reasons indicated in paragraph 22 above, the decision of this court on the meaning of section 4 (2) of the 1976 Act bound the EAT as to the meaning of substantially the same words used in section 6 (2) of the 1975 Act; as it equally binds us.

25..... I find entirely persuasive the conclusion of Peter Gibson LJ... that when one reads as a whole the words equivalent to those used in s.6(2)(a) of the 1975 Act it is inescapable that what is addressed is events occurring during the actual course of employment. ...

27..... This court in Adekeye was faced with the contention that even if the 1976 Act on its true construction did not apply to after-employment events, the same expressions in the 1975 Act had to be so construed, in order to bring the 1975 Act compliance with the requirements of Directive 76/207. Since that was the meaning of those words in the 1975 Act, it must be the meaning of those same words as used in the 1976 Act. Peter Gibson L.J. rejected that argument. He was not persuaded that that was the effect of Directive 76/207 in relation to the 1975 Act; but in any event he rejected the line of reasoning because it produced a meaning of the 1976 Act that it otherwise could not bear.

38. The Court of Justice in [Coote v Granada Hospitality Ltd [1999] ICR 100] was faced with an argument that events occurring after the termination of employment were not covered by the Directive. It rejected that argument, not in general terms, but on the basis that where an employee complains by judicial process of events that had occurred during the employment, that judicial process will only be effective, as general Community law requires, if employees are not victimised for taking the process."

16. Pill LJ in his judgment said:

"11. [Coote v Granada Hospitality Ltd] is limited to ensuring that there is an effective remedy for persons who consider themselves wronged by measures taken by an employer as a reaction to proceedings brought by employees to enforce compliance with the principle of equal treatment. They must have a remedy if they are victimised after the employment has terminated. The decision does not bear upon the question whether a claim based on an act of discrimination alleged to have occurred during the period of employment can be the subject of complaint after the employment has ended."

The submissions in front of us and our conclusions.

17. Mr D'Souza was until the opening of this appeal represented by Karon Monaghan instructed by the Commission for Racial Equality. She prepared a long skeleton Argument for which we are grateful and which we have taken into account in preparing this judgment. However, when the appeal was called she indicated that Mr D'Souza had decided to dispense thenceforth with the services of his solicitors and counsel and wished to argue the case himself. This he in due course did and she withdrew. The points which he made were in essence based on the submission that Community law required employers not to discriminate on grounds of sex or nationality when considering applications for re-employment and that discrimination on grounds of race should be treated the same way as discrimination on grounds of sex or nationality. He made the following points.
18. Adekeye was wrongly decided. We see some force in the submission that the decision could have gone the other way, in particular so far as s.4(1) is concerned. However, the fact is that it did not and we are in principle bound by it. The decision in Rhys-Harper reinforces that view.
19. The present case involves an allegation of victimisation as defined in section 2 of the Race Relations Act as opposed to discrimination as defined in section 1 which is what was complained of in Adekeye. Assuming this to be so, it is not a difference which entitles us to depart from Adekeye. The issue in that case related to the concept of employment : whether the act complained of was victimisation or some other form of racial discrimination was of no relevance to the resolution of that question.
20. The present case involves the non-implementation of a re-instatement order whereas Adekeye involved an internal appeal. That is true but it is a distinction of no significance in relation to the issues before us.
21. The decision of the ECJ in Coote forces this court to depart from what was decided in Adekeye. That argument was rejected by this court in Rhys-Harper by which we are bound. We also reject it.
22. The decision in Adekeye was made per incuriam because the court's attention was not drawn to Regulation 1612/68/EEC on freedom of movement for workers within the Community. It is true that the Regulation was not referred to but this does not have the result that the decision was made per incuriam. There was not there, and indeed there is not in the present case, any claim which could conceivably be made under that Regulation. Even if a claim could be made under that Regulation that would not have the effect that the Race Relations Act would need to be construed differently from the way in which it has been construed : the applicant would not be deprived of any rights under Community Law. He could enforce the right given to him by that Regulation.
23. The decision in Adekeye was made per incuriam because the court's attention was not drawn to paragraph 37 of the decision of the European Court of Justice in Seymour-Smith (C-167/97) [1999] 2 AC 554 at 595. It is true that Seymour-Smith was not referred to. But it is a case of no relevance to the present dispute. The paragraph merely establishes that where a worker is seeking re-instatement the national law should comply with the Equal Treatment Directive 76/207/EEC. That this line of argument does not help someone in Mr D'Souza's position is established in Adekeye.
24. The decision in Adekeye is incompatible with Article 6 of the Human Rights Convention as incorporated by the Human Rights Act. The short answer to this point is that Article 6 is not in play unless the appellant can first establish a substantive right. This has now been established in Z and others v The United Kingdom Application no 29392/95 decided on 10 May 2001.

We need only cite parts of paragraphs 87 and 98:

"87. The Court recalls its constant case-law to the effect that "Article 6.1 extends only to contestations (disputes) over (civil) "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) "rights and obligations" in the substantive law of the Contracting States ... .

98.... As it has recalled above in paragraph 87 it is a principle of Convention case-law that Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law, although other Articles such as those protecting the right to respect for family life (Article 8) and the right to property (Article 1 of Protocol No. 1) may do so. ..."

25. Although there is now a Community Directive in relation to racial discrimination that is not yet in force. There has not been any breach of Community law so far as this appellant is concerned. The arguments that the Sex Discrimination Act unless construed in the manner for which the applicant in Rhys-Harper contended is incompatible with Community law has been rejected in Rhys - Harper by which we are bound. Even if it were correct, the argument that therefore the Race Relations Act should be construed in the manner for which the applicant in Adekeye contended has been rejected in that case by which we are also bound. Nothing in the Human Rights Act gives this appellant any presently relevant right on which he can rely.
26. This appeal must therefore be dismissed and the appellant must content himself with the compensation which he has already received for his unfair dismissal more than a decade ago.
ORDER: Appeal dismissed with costs; Section II order against Legal Services Commission; Permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)