United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C A PURNELL (Representative) Slough Race Equality Council 3rd Floor The Old Crown Building Windsor Road Slough SL1 2DL


 


MR JUSTICE BELL: This is the preliminary hearing of Mrs Bakshi's appeal against the decision of the Employment Tribunal held at Reading on 11th July 2000 that:

(1) the tribunal had no jurisdiction to hear her complaint of discrimination contrary to the Race Relations Act 1976, which was therefore dismissed; and

(2) that her application for leave to amend her Originating Application to include complaints under the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995 be refused.

1. The background to Mrs Bakshi's applications before the Employment Tribunal is that she began her employment as a postwoman with the respondent on 28th July 1986. On 16th January 1996 she began a period sick leave which endured until the date of her dismissal. On 29th April 1997 she was informed by the respondent that she was being dismissed because of her failure to attend for work. Her last day of service was 8th July 1997 which the Employment Tribunal found was the effective date of the termination of her employment.
2. Mrs Bakshi complained of disability discrimination, sex discrimination and unfair dismissal.
3. At a preliminary hearing on 29th September 1997 an Employment Tribunal (or Industrial Tribunal as it would then have been) found that she did not suffer from a disability. A full merits of hearing of her complaints of unfair dismissal and sex discrimination took place on 30th September 1997. At the beginning of the hearing the complaint of sex discrimination was withdrawn. Having heard the complaint of unfair dismissal the tribunal rejected it, unanimously concluding that Mrs Bakshi's dismissal had been fair.
4. Around the end of August or early September 1999 Mrs Bakshi became aware of a case which she maintained was comparable to her own. It involved a postman, Mr Singh, who is Sikh. Mr Singh had also been dismissed by the respondent under its attendance procedure. But the respondent concluded after dismissing Mr Singh that he had been unfairly dismissed for procedural reasons. In the event, Mr Singh provided a consent form for the respondent to obtain his medical details, having been informed that he could apply for retirement on medical grounds which he had not been informed of at the time his dismissal. Following his reinstatement he was able to avail himself of the facility of retirement on medical grounds, which had the effect of enhancing his pension entitlement. Mrs Bakshi maintained that as Mr Singh was a Sikh she was discriminated against because she had not been afforded the option which Mr Singh had been afforded of retiring on medical grounds. Her form IT1 complaining of racial discrimination was lodged on 10th February 2000. An application to amend that Originating Application to include a claim for sex discrimination and disability discrimination was made a preliminary hearing of the complaint of racial discrimination which took place on 12th May 2000. The Chairman hearing the matter then decided that all the applications should be considered at one hearing which took place on 11th July 2000.
5. So far as the allegation of racial discrimination is concerned, the Employment Tribunal held that as any preferential treatment of Mr Singh occurred after the termination of Mrs Bakshi's employment, hers was not "a case of a person employed" by the Post Office for the purposes of section 4(2) of the Race Relations Act 1976, since section 4(2) protected only those whose employment still continued at the time of the act of alleged discrimination. It did not protect those who had been in the respondent's employment but no longer were at the time of the relevant act. See Adekeye v The Post Office No. 2 [1997] ICR 100 and IRLR 105 a decision of the Court of Appeal.
6. The submission of Mr Purnell, to whom we are grateful both for his skeleton argument and his argument this morning, contends that Adekeye is wrongly decided. He does so on the basis that in the case of Coote v Granada Hospitality Ltd [1999] ICR 942 and IRLR 452, the Employment Appeal Tribunal construed similar words to those in section 4(2) but contained in section 6(2) of the Sex Discrimination Act 1975, "a case of a woman employed by", to include a person employed or who has been employed. Mr Purnell argues that by the same token what is good enough for sex discrimination should be good enough for racial discrimination when the essential statutory wording is the same. What happened in Coote in essence was that the Employment Appeal Tribunal felt able to use a purposive construction of section 6(2) in the light of an EC Directive relating to equal treatment for men and women. There was no equivalent Directive at the time in the fields of race or disability. In Coote the Employment Appeal Tribunal said that it disagreed in any event with the reasoning of the Court of Appeal in Adekeye No. 2 but did also say that if it had been hearing a race discrimination case it would be bound to follow Adekeye No. 2. Mr Purnell submits that he now has an extra string to his bow in that an EC Directive has been prepared or made in relation to race discrimination so that the same purposive approach can be taken to section 4(2) as was taken towards section 6(2) by the Employment Appeal Tribunal in Coote.
7. However, the position is that the Employment Tribunal which heard Mrs Bakshi's complaint of racial discrimination was bound by the Court of Appeal authority of Adekeye No. 2. We are equally bound by that authority. If a different approach is to be taken to the construction of section 4(2) in the light of the EC Directive in relation to race which Mr Purnell has mentioned, then that different approach cannot be taken at any level lower than the Court of Appeal itself in our view. We state the obvious fact that this Appeal Tribunal is not bound by an EC Directive which, in any event as we understand it, will not have come into force. The EC Directive does not actually change the law of England and Wales, although it puts the Government of the United Kingdom in an embarrassing position if it does not actually change the law of England and Wales, and for that matter Scotland, to accord with the EC Directive. All this amounts simply to this, in our view, that we are bound by Adekeye No.2 to adopt the construction of section 4(2) which was adopted in Adekeye No. 2 and that means that as the law presently stands Mrs Bakshi's complaint of racial discrimination after her employment by the Post Office had ended was not valid.
8. In any event, the Employment Tribunal found that Mrs Bakshi's claim of racial discrimination was out of time. It went on to find that it was not just and equitable to extend the time limits. The act of alleged discrimination was, the Employment Tribunal found, the failure to afford the possibility of taking medical retirement in 1997. The Employment Tribunal found that Mrs Bakshi knew of Mr Singh's position by early September 1999. She was well versed in Employment Tribunal procedures and well aware of the time limits. Yet her IT1 alleging racial discrimination was not lodged until 10th February 2000.
9. Mr Purnell seeks to challenge the decision of the Employment Tribunal not to extend time. He argues that the Employment Tribunal took insufficient account, if any, of the fact that Mrs Bakshi had suffered a bereavement and was not well at the relevant time. The Employment Tribunal did refer to Mrs Bakshi's bereavement and her poor health and we are quite unable to say that it exercised its discretion in a way which was not legitimate.
10. Mr Purnell also argued and argues that Mrs Bakshi's complaint of racial discrimination was not out of time because she was continuing to suffer from the alleged race discrimination in the sense that she was continuing to be out of pocket as a result of the actions, now three years ago, of the Post Office. Mr Purnell in support of that argument relies upon the authority of Barclays Bank Plc v Kapur [1991] ICR 208. But in our view Mrs Bakshi's case is different to the case of the applicants in that case. They were still employed by Barclays Bank but earning less favourable pension rights which, the Court eventually held, was a continuing disadvantage throughout their employment. In any event, the Employment Tribunal in Mrs Bakshi's case found that it was the opinion of the Post Office's medical adviser in 1997 that she would not have qualified for retirement on grounds of ill health. Sougrin v Haringey Health Authority [1992] IRLR 416 is authority for the proposition that in those circumstances the applicant's inability to take medical retirement was not a continuing act but an act that had continuing consequences. We cannot fault the decision of the Employment tribunal that there was no continuing detriment in Mrs Bakshi's case in the light of that authority.
11. The Employment Tribunal found that the application by Mrs Bakshi to add a claim for sex discrimination and a claim for disability discrimination came out of the blue at the preliminary hearing of the race discrimination claim on 12th May 2000. The Employment Tribunal refused to allow the amendments since both claims were by then out of time. In any event, the disability discrimination claim had already been adjudicated upon by a tribunal in 1997 and the Employment Tribunal found that there was no merit in the Sex Discrimination Act claim or the Race Discrimination Act claim on the facts of the case. Those were all conclusions to which, in our view, the Employment Tribunal was entitled to come on the material which was before it.
12. For these reasons we are bound to find at this preliminary stage that there is no prospect of Mrs Bakshi's appeal succeeding and it is therefore dismissed at this preliminary stage.

[Mr Purnell applies for leave to appeal to the Court of Appeal]

13. We refuse permission to appeal because we think that that is a matter which the Court of Appeal should decide. It being Court of Appeal authority we think the Court of Appeal should decide whether it wishes to reconsider the position in the light of the point Mr Purnell has made.