United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 104_95_0905

Appeal No. EAT/104/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th May 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P DAWSON OBE

MISS A MACKIE OBE

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MR K BOATENG          APPELLANT

(1) LONDON BOROUGH OF HACKNEY, (2) K SUGRUE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

NO ATTENDANCE BY THE APPELLANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is a preliminary hearing of an appeal by Mr K Boateng against the decision of the Industrial Tribunal held at London (North) on 16th November 1994.

The Tribunal unaminously decided on a preliminary hearing that it had no jurisdiction to hear a complaint of continuing racial discrimination against the London Borough of Hackney by Mr Boateng, who had been employed by them as a directorate personnel officer. He made the complaint in an application made to the Tribunal on 21st June 1994.

In box 10 of the originating application he alleged:

"The Respondents [Council had] continued unlawfully to discriminate racially against the applicant contrary to sections 1 and 4, [of the] Race Relations Act 1976."

The Tribunal's decision that it had no jurisdiction was on two grounds.

Firstly, that Mr Boateng was not an employee of the Council at the material time, as Section 4(1) and (2) of the Race Relations Act 1976 provides:

"(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 that 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."

and subsection (2) reads:

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

(a) in the terms of employment which he affords to him; or

(b) in the way 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."

Although only Section 4(2) is mentioned in the initial paragraph of the decision, the Tribunal later considered both subsections.

The second ground on which the Tribunal held that it had no jurisdiction was that Mr Boateng's complaint had, in fact, already been adjudicated upon by an Industrial Tribunal, which made an order in his favour.

In the extended reasons for the decision, the Tribunal set out the background to his claim, starting with proceedings which he had commenced in the Industrial Tribunal on 16th December 1991 for unfair dismissal and racial discrimination. It records that he had succeeded in his complaint of racial discrimination. The Council had been ordered to pay him £16,000.00 compensation, including £11,000.00 for loss of earnings and £5,000.00 for injury to feelings. That decision, dated 8th March 1994, was the subject of an appeal to the Employment Appeal Tribunal heard in January 1995. As far as the Council were concerned, the appeal brought by them was dismissed, subject to a variation, which reduced the compensation payable from £16,000.00 to £10,000.00. That decision is contained in the judgment delivered by this Tribunal on 9th March 1995.

The Tribunal then dealt with the application issued by Mr Boateng on 21st June 1994. It dealt first with the point raised under Section 4(2). They recorded that the Council contended that, as Mr Boateng had ceased to be an employee of the Council on 21st November 1991, he could not bring a claim under Section 4(2) of the Act in June 1994, since, at that time, he was not a person employed by the Council, and had not, in fact, been employed for some two and one half years previously.

The Tribunal considered an argument raised by Mr Boateng against this difficulty, but that was rejected by the Tribunal on the grounds that it involved a series of contingencies which were too remote to justify his claim to proceed under Section 4(2).

Mr Boateng presented an alternative argument that he was relying upon Section 4(1)(c), and that did not require him to be an employee. The Tribunal rejected that argument on the basis that that is only material where the allegation of discrimination is by refusing or deliberately omitting to offer him that employment, and there was nothing in Mr Boateng's application which dealt with any attempt, on his part, to be re-employed by the Council. Section 4(1)(c) was therefore irrelevant.

The final ground on which the Tribunal rejected the claim on an even far more fundamental objection to jurisdiction, Mr Boateng had already made a claim, in the earlier application 53104/91 and, he had received an award of compensation. That included a substantial award for loss of earnings. The matters on which he was now relying were nothing new. They had been considered at the length in the earlier Tribunal. He had been successful.

In those circumstances, the Tribunal found that there was no jurisdiction. Mr Boateng appealed by a Notice of Appeal served on 20th January 1995. His grounds of appeal were that the Chairman erred in law in not taking into account the provisions of Section 54(1) of the Employment Protection (Consolidation) Act 1978; that the Tribunal Chairman erred in law by ignoring established judicial precedents on the interpretation of continuing employment; and that the Chairman's decision to refuse jurisdiction on grounds that Mr Boateng was no longer an employee of the Council was an error in law, and the decision, therefore, was unsafe, unsatisfactory and should be reversed.

Mr Boateng was notified that there would be a hearing today to determine whether his appeal raised an arguable point of law. Mr Boateng has not attended to pursue his appeal. He wrote a letter dated 4th May 1995, post marked 10a.m. 5th May 1995, and received by this Tribunal this morning.

In the letter he says:

"I refer to the above case scheduled for hearing on 10th May 1995, and formally apply for an adjournment on grounds of ill health. My right ankle is swollen."

No further details are provided. No medical certificate is enclosed.

The letter gives Mr Boatengs' telephone number. Before we sat this morning, we asked the associate, Mr Edwards, to telephone that number to find out Mr Boatengs' current state of health? We were informed that the telephone was answered by Mr Boateng's wife, who said she knew nothing about this letter, and that, as far as she knew, Mr Boateng was at the Library. He is certainly not here. In our view, and in those circumstances, there appears to be no good reason for him failing to attend this morning to pursue his grounds of appeal.

We have considered the grounds of appeal, in the light of the Tribunal decision. In our view, this case should not proceed to a full hearing, since there is no reasonably arguable point of law on which Mr Boateng could succeed at the hearing. In our view, the Tribunal's decision, in relation to his claim, whether brought under Section 4(1) or Section 4(2), is correct. The whole case is open to the fundamental objection that it has already been litigated, Mr Boateng is seeking to re-litigate a matter on which he has already succeeded.

In those circumstances, the Appeal is dismissed.