United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C QUINN (OF COUNSEL) (Instructed by Mr Anunay Jha Principal Litigation Officer Commission for Racial Equality Elliot House 10-12 Arlington Street London SW1 5EH
For the Respondent	MR K MORTON (OF COUNSEL) (Instructed by) Ms G J Amodeo The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


MR JUSTICE MORISON (PRESIDENT): This is an Appeal against the unanimous decision of an Employment Tribunal which concluded, following a hearing on 29^th July 1998, that it did not have jurisdiction to consider the Applicant's complaint of Race Discrimination.

1. The Applicant, Mr Franklin, had made a complaint against the Home Office and others about his non-appointment, despite his application, as a member of the Police Complaints Authority. The Tribunal concluded, having regard to the various statutory provisions to which reference will be made subsequently in this judgment, that they did not have jurisdiction because, in their view the circumstances of the appointment did not give rise to the application of Section 4 of the Act of 1976. The Police Complaints Authority was established in 1985 under the provisions of the Police and Criminal Evidence Act. Section 83 of Part IX of the Police and Criminal Evidence Act 1984 as amended provides:

"(1): There shall be an authority to be known as "Police Complaints Authority" and in this part of this Act referred to as "the Authority";

(2) Schedule 4 to this Act shall have effect in relation to the Authority;

(3) The Police Complaints Board is hereby abolished."

2. Schedule 4 contains provisions relating to the Police Complaints Authority and in Part I under the hearing "General" Parliament has first of all dealt with the constitution of the Authority. Paragraph 1(1) provides:

"(1) The Police Complaints Authority shall consist of a chairman and not less than 8 other members;

(2) The chairman shall be appointed by Her Majesty;

(3) The other members shall be appointed by the Secretary of State;

(5) Persons may be appointed as whole-time or part-time members of the Authority; and

(6) The Secretary of State may appoint not more than 2 of the members of the Authority to be Deputy Chairman."

3. Paragraph 2 of Schedule 4 is dealing with the incorporation and status of the Authority and in sub-paragraph 1 provides:

"(1) The Authority shall be a body corporate;"

and sub-paragraph 2 provides:

"(2) It is hereby declared that the Authority are not to be regarded as the servant or agent of the Crown or as enjoying any status privilege or immunity of the Crown and the Authority's property shall not be regarded as property of or property held on behalf of the Crown."

4. Paragraph 3 deals with members of the Authority and this is important because the Applicant/Appellant in this case was seeking membership of the Authority. Paragraph 3(1) provides:

"3(1) Subject to the following provisions of this Schedule a person shall hold an office to which he is appointed under paragraph 1, 2, 3 or 6 above in accordance with the terms of his appointment.

(2) A person shall not be appointed to such an office for more than 3 years at a time;

(3) A person may at any time resign such an office;

(4) The Secretary of State may at any time remove a person from such an office if satisfied that ….."

and then there are a number of provisions which might lead to a removal by the Secretary of State from the office.

"4. The Secretary of State may pay or make such payments towards the provision of such remuneration pensions allowances or gratuities to or in respect of persons appointed to office under paragraph 1, 2, 3 or 6 above or any of them as with the consent of the Treasury he may determine;

5. Where a person ceases to hold such an office otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation the Secretary of State may with the consent of the Treasury direct the Authority to make to the person a payment of such amount as with the consent of the Treasury the Secretary of State may determine."

5. It is made plain from the literature which is provided to candidates for appointment that the Police Complaints Authority is accountable to but autonomous of the Home Office and it is also completely independent of the Police Service. Its role is to supervise the investigation of serious complaints against any Police Officer involving, for example, death, serious injury or corruption and they also supervise investigations into non-complaint matters voluntarily referred by Police Forces to them because of their gravity.
6. Mr Franklin comes from the visible ethnic minority and complains that the reason why he was not selected for appointment was because of his race and the complaint which he presented to the Tribunal therefore, was brought purportedly under Section 4(1) of the Act. The question the Employment Tribunal was concerned with was whether seeking an appointment to the Police Complaints Authority fell within the terms of Section 4(1). Was he seeking appointment to employment? Were the Authority or people within the Authority making arrangements for the purposes of determining who should be offered employment, stressing the word "employment". Employment is defined in Section 78 of the Act, as meaning employment under a contract of service or of apprenticeship or of contract, personally to execute any work or labour and related expressions shall be construed accordingly. It follows therefore that a person who is holding an office otherwise than by virtue of a contract would fall outwith the provisions of the Act.
7. It can be seen by reference to the Statutory Provisions to which I have referred, that indeed, the persons who are members of the Police Complaints Authority are appointed by the Secretary of State and hold office in accordance with the provisions of paragraph 3, 4 and 5 of Schedule 4. There is clearly a reference to the members holding office and it seems to us quite clear, and we think ultimately was not significantly in dispute, that what the Applicant was seeking in this case was appointment to a statutory office where the appointment would be made by the Secretary of State. As such, although there were many facets of the appointment which were akin to the employment relationship it seems to us that the statutory office holder would fall outside Section 4 for the reason indicated. This is not a case where there was any contract of employment or contract personally to perform work or service.
8. Members of the Authority can be compared with the staff employed by the Police Complaints Authority (which is dealt with in paragraphs 6-8 of Schedule 4) who are servants of the Authority. As I understand it, they hold their employment with the Authority under what might be described as conventional contracts of service. In relation to them, of course, a member of the staff who was discriminated against by the Police Complaints Authority would be able to bring proceedings against the Authority, which is a body corporate, seeking relief.
9. But the position does not end there, because there are various types of employment which are expressly incorporated within or brought into the ambit of the Race Relations Act 1976. Examples have been given. One example is people who are in police service - Police Officers. They hold the office of Constable and would not, but for the provisions of Section 16 of the Act, have had rights to make complaints under the 1976 Act. Section 75 of the Act applies the Act to the Crown, it being necessary to do that, otherwise the Crown servants would fall outside the provisions of the legislation.
10. The Act also applies to House of Commons staff and House of Lords staff in accordance with the terms of Section 75(A) and 75(B) of the legislation. Section 75 headed "Application to Crown etc" provides:

"(1) This Act applies

(a) to an act done by or for purposes of a Minister of the Crown or Government Department; or

(b) to an act done on behalf of the Crown by a statutory body or a person holding a statutory office as it applies to an act done by a private person.

(2) Parts 2 and 4 apply to

(a) service for purposes of a Minister of the Crown or Government Department other than service of a person holding a statutory office; or

(b) service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body; or

(c) service in the armed forces as they apply to employment by a private person and shall so apply as if references to a contract of employment included references to the terms of service."

11. The argument in this case has centred on the provisions of Section 75. It is the contention on behalf of the Appellant in this case that Section 75(1)(a) applies but that Section 75(2) has no application. Alternatively, if Section 75(2) does apply then both sub-sections (a) and (b) of sub-section (2) come into play. As a result of him falling within (b) if (a) was applicable at all, then Part II of the Act was to apply to him. Part II of the Act of course, includes Section 4 of the Act to which I have referred.
12. It seems to us that the position is reasonably clear. On a proper construction of Section 75(1), the Act is being applied to acts done by or for the purposes of a Minister of the Crown or Government Department on the one hand and to acts done on behalf of the Crown by a statutory body or a person holding a statutory office on the other, in order to identify the target about whom a complaint can be made. It is looking at the action in respect of which a complaint may be made and it is providing that the act about which complaint can be made is to be treated as though it were an act done by a private person. Thus, it removes any difficulty that might otherwise have been encountered by, for example, suing a Government Department or a Minister of the Crown having regard to the Crown Proceedings Act and having regard to the fact that a Government Department is not an incorporated body.
13. There is also, obviously, a problem which was being dealt with in Section 75(1) which is acts done on behalf of the Crown. Could the Crown be made a target of any complaint? It seems to us quite clear that 75(1) is directed to enabling a complaint to be made against an act which otherwise would have been excluded from the provisions of the 1976 Act where you can show that the act was done by or for the purposes of a Minister of the Crown or Government on the one hand or on behalf of the Crown on the other. We reject as being unsound in principle the suggestion made to us by Mr Quinn on behalf of the Appellant, to whom we are grateful for his submissions, that the acts of a Minister of the Crown are to be treated as acts done on behalf of the Crown. It seems to us that there is a clear constitutional distinction between an act done by a Minister of the Crown or Government Department on the one hand and an act done on behalf of the Crown on the other.
14. That distinction of constitutional importance is reflected in the language of Section 75(1). It is also reflected in the language of 75(2) which is not looking so much at the act which gives rise to a complaint but is dealing with the relationship between the Applicant and the body about which he is making complaint. Therefore, 75(2)(a) is dealing with service for the purposes of a Minister of the Crown or Government Department which otherwise would not have been caught by the Act because it would not have been service, for example, under a contract of employment or a contract personally to perform any services because it is known that Civil Servants are not traditionally regarded as working under a contract in that sense. So that part of Section 75(2) was bringing within its scope people who could be described as "Civil Servants". But 75(2)(a) went on to make it plain that there was a distinction to be drawn between people who did not have a contract of service on the one hand and people who held a statutory office on the other. That is why there is an exception in 75(2)(a) "other than service of a person holding a statutory office".
15. If, as is the case, Mr Franklin was seeking service as a member of the authority, he was seeking service as a person holding a statutory office. In those circumstances, it seems to us, that 75(2)(a) cannot apply to his case. Does he fall within 75(2)(b)? Was he seeking service on behalf of the Crown for the purposes of a statutory body? The answer to that question is, in our judgment, no, he was not seeking service on behalf of the Crown. What he was doing was seeking an appointment by the Minister of the Crown, the Secretary of State for the Home Office. Accordingly, it seems to us, that he does not fall within Section 75(2)(b) either. In those circumstances, we have the position where he is seeking an appointment as a statutory office holder which is not seeking employment within the meaning of Section 4(1) as interpreted by Section 78. Whether Section 75(2)(a) would have applied other than subject to the exception is something which does not fall for consideration. Our present view is that the words service for purposes of a Minister of the Crown would be apt to include somebody seeking an appointment by the Secretary of State to work for the Authority but, as we have indicated, even if 75(2)(a) were to apply, he is taken out from the cover of that Section by virtue of the words "other than service of a person holding a statutory office".
16. Accordingly, we are of the view that this is not a case which is covered by Section 4. We ought to refer to two further matters. Section 76 of the Act provides:

"(1) This section applies to any appointment by a Minister of the Crown or Government Department to an office or post where Section 4 does not apply in relation to the appointment.

(2) In making the appointment and in making the arrangements for determining who should be offered the office or post the Minister of the Crown or Government Department shall not do an act which would be unlawful under Section 4 if the Crown were the employer for the purposes of this Act."

17. It seems to us that Section 76 could be described as quid pro quo for the exceptions and the limited scope of Section 75. What is being said there is that even where one is considering the appointment to a post or to an office which would otherwise not fall within Section 4 there is an obligation on the Minister of the Crown or Government Department not to discriminate on the grounds of race. But the remedy for a breach of that promise or obligation is not to the Employment Tribunal but only an application for judicial review in the Crown Office List. We use the word "only" advisedly because it does seem to us, as has been said before, that the remedy for a complaint of unlawful discrimination on the grounds of race, is barely given effect to by the procedural provisions in Crown Office List matters. For example, there is no right to serve a statutory questionnaire in such a case. A statutory questionnaire is, in our experience, of crucial importance to a complaint of discrimination where the complainant is concerned about a non-short listing or non-appointment, if on the short list, because it is only through that process that the information that is required to determine whether the case is a sound one or not can be obtained.
18. That said, it seems to us, a matter for Parliament to put right and not for us to seek to express views. The Act should be as inclusive as is compatible with the efficient management of Government work. It is obvious that it should be as embracing as can be practically managed because this Court is well aware of the risks of lurking, institutional discrimination on grounds of race in many institutions within the United Kingdom. One of the tools for eliminating discrimination is the ability of a complainant to bring his case before an Employment Tribunal with the assistance, if needs be, of the Commission for Racial Equality and with the assistance of the statutory questionnaire. That is not to imply in this case that we take the view, because it is not for us to say, that applicants to the Police Complaints Authority should have the right to bring their complaints there; that is a political decision which must be taken by others.
19. For the reasons we have tried to give, we are therefore of the view that the Tribunal arrived at a conclusion which we would agree. We do not differ much from the way they have put it themselves and would pay tribute to their decision. Accordingly, the Appeal must be dismissed.
20. The second point which I should deal with is the contention that there was a conflict between Section 75(2)(a) and the exception for a statutory office holder and the provisions of Schedule 4, paragraph 2, sub-paragraph (2). That paragraph, as I have indicated, provides that the Authority are not to be regarded as the servant or agent of the Crown or as enjoying any status, privilege or immunity of the Crown. It seems to us that there is no incompatibility between the exception in 75(2)(a) and that provision because there is no status, privilege or immunity of the Crown involved in a case such as this. We are of the view that this is not a case where the Crown is involved at all. In other words, this is not a case where 75(1)(b) or 75(2)(b) applies.
21. We have been asked for leave to appeal. I do not under-estimate the importance of this case to the person concerned. Nor do I under-estimate the importance of the point more generally as to whether Government should look at the possibility of bringing within the legislation appointments to this body. That, as I have indicated, is something beyond our remit, but I do not think those two important matters or considerations lead us to the view that leave to appeal should be given in this case. We have to look at the matter from the point of view of the nature of the dispute between the parties and how it has been resolved by us. The Court of Appeal will have to determine for themselves whether they think it is arguable that the result which we have come to is wrong and we would rather leave it to them, I think, in this case to determine for themselves whether they want to take this case or whether it may be that the true response to this case is not to the Court of Appeal but elsewhere.