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 EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday 15th January, 2002

1. LORD JUSTICE KEENE: Mr Lawal seeks permission today to appeal against a decision of the Employment Appeal Tribunal dated 10th October 2001. The order bearing that date reads as follows:

"1. the hearing of this appeal is adjourned to a date to be fixed, such date to be as early as possible. The time estimate for the hearing is 1 day.

2. the appeal panel for the adjourned hearing should, if possible, be presided over by the President. The lay members should be members who at the time of the hearing have not, at any previous hearing of any case at this appeal tribunal, sat as part of a panel presided over by Mr Nicholas Underhill QC."

2. The background to this application is that the applicant worked for the respondent company for many years as a train conductor. He resigned in March 1997. On several occasions thereafter the company refused to provide a reference for him. Mr Lawal alleges that this amounted to retaliation by the respondent prompted by his having previously brought a discrimination claim against them, a claim which was compromised.
3. On 12th July 2000 an Employment Tribunal sitting at Sheffield concluded that it did not have jurisdiction to hear Mr Lawal's complaint. This was on the ground that the Race Relations Act 1976 does not extend to acts of victimisation against former employees in accordance with the decision of Post Office v Adekeye [1997] ICR 110.
4. Mr Lawal appealed to the Employment Appeal Tribunal (the "EAT"). On 15th January 2001 the EAT, presided over by Lindsay J, decided at a preliminary hearing that the area of law was a difficult one and that the appeal should go to a full hearing. The full hearing was set down for 10th October 2001 before an appeal panel presided over by Her Honour Judge Wakefield.
5. In advance of that hearing the respondent company submitted a skeleton argument prepared by its leading counsel, Nicholas Underhill QC. Mr Lawal, on 1st October 2001, took the point that since April 2000 Mr Underhill has been a part-time judge of the EAT. He argued that the respondent should be debarred from defending the claim on the grounds that, as a result of Mr Underhill representing it, it had compromised the impartiality of the EAT.
6. In fact on 10th October 2001 the EAT adjourned the appeal to a date to be fixed and made the order which I have set out at the beginning of this judgment.
7. The EAT then consulted the parties and the Lord Chancellor's Department about whether that Department should be joined as a party to the appeal, so that it could be heard on what were described as "points of real importance" raised by Mr Lawal. Mr Lawal consented to that, and on 31st October 2001 the EAT joined the Lord Chancellor's Department to the appeal.
8. There is on the papers a dispute of fact as to whether Mr Underhill has ever presided over an EAT panel which included Mr KM Young as one of its lay members. Mr Lawal contends that Mr Underhill admitted at the 10th October hearing that he had. However, in the respondent's skeleton argument it is said that, so far as Mr Underhill can establish, he has not. Mr Young was certainly one of the members of the panel presided over by Her Honour Judge Wakefield which made the order which it is now sought to challenge. One could take steps to try to resolve that factual issue, but for the time being I am prepared to proceed on the basis, simply for the purpose of this application, that Mr Young was someone who had been part of a panel over which Mr Underhill presided. I emphasise that I make that assumption merely for the purpose of this hearing today.
9. Mr Lawal does still seek to argue that Mr Young should not have been part of the panel that took the decision on 10th October 2001. But the fact is that Mr Lawal has achieved all he could legitimately expect to have achieved from the hearing on 10th October. His appeal is to be heard by a panel which will not include any lay member who has sat with Mr Underhill. One can only ask: what more could he seek from the EAT on this particular aspect of the case? Indeed, when I put that to Mr Lawal in the course of his argument he appeared to recognise that he had achieved all that he wanted as a result of that decision on 10th October.
10. Mr Lawal has, in effect, raised an interesting point which the EAT apparently proposes to address. There is certainly no prospect of a successful appeal against that aspect of the EAT's order.
11. There is a further point which has been raised by Mr Lawal which concerns timing. He is concerned about the time limit set by section 7(5)(a) of the Human Rights Act 1998. That subsection reads as follows:

"Proceedings under subsection (1)(a) [which allows a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) to bring proceedings against the authority] must be brought before the end of-

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."

12. In the course of argument I sought clarification from Mr Lawal as to which particular public authority he might be seeking to claim against under section 6(1), bringing into play the normal one-year time limit under section 7 which I have just set out. The answer which he gave to that was the Employment Appeal Tribunal. However, it seems to me that there is some misunderstanding here. The Employment Tribunal has not yet made its substantive decision on Mr Lawal's appeal to it, and therefore the one-year period from that particular decision under section 7 would not have begun to run. In any event, the remedy which Mr Lawal has against a substantive decision of the EAT on his appeal is not something which is governed by section 6 or 7 of the Human Rights Act as such. That is something which is provided for in terms of the rights of appeal to this court from the EAT. There are separate time limits which arise in respect of any appeal to this court from the substantive decision when it is made by the EAT, and indeed the time limit is much stricter than one year.
13. In any event, that decision has not yet been made by the EAT on the substantive merits of Mr Lawal's appeal, so no time limit can possibly have started to run. The only decision which Mr Lawal could seek to challenge, as he does seek to challenge today, is the decision of 10th October 2001. As I have already indicated, there is no basis upon which any fault could be found with that particular decision. I am bound to say that I can see no prospect whatsoever of a successful appeal against the EAT's order of 10th October 2001.
14. In these circumstances I have no alternative but to dismiss this application. Nonetheless, I am very grateful to Mr Lawal for the concise and courteous way he has presented his arguments today.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________