United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR N AHLUWALIA (of Counsel) Instructed by: Disability Rights Commission 2nd Floor, Arndale Centre Manchester M4 3AQ
For the Respondent 3M Health Care Ltd	MR KIBLING (of Counsel) Instructed by: Messrs Eversheds Solicitors 1 Royal Standard Place Nottingham NG1 6FZ
For the Respondent British Sugar PLC	MR J SWIFT (of Counsel) Instructed by: Messrs Greenwoods Solicitors Monkstone House City Road Peterborough PE1 ITE


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I have before me an application for an adjournment in matters that, between them, have four Appellants, Gerald Jones, Nicholas Kirker, Diana Angel and Charmaine Bond and also five Respondents, 3 M Healthcare, Ambitions Personnel, British Sugar, New Possibilities NHS Trust and Hackney Citizens Advice Bureau.
2. The position is that all the cases brought by the Appellants give rise to the question of how far, if at all, protection of the Disability Discrimination Act 1995 can be properly invoked where the event which is complained of arose only after employment had ceased.
3. The brief history of the matter is that on 3 May of this year I had a directions hearing. At that stage there were only three separate Appellants, Jones, Kirker and Angel, but it had been recognised in a number of EAT cases that the same point arose in each and common directions were given on 3 May, joining the three to come on together.
4. On 16 May of this year, Notice of Hearing for all three of the then-understood related appeals was fixed for 12 and 13 November, in other words, Monday and Tuesday of next week.
5. On 25 May of this year the Court of Appeal gave judgment in a case called D'Souza. D'Souza does not directly concern questions of the construction of the Disability Discrimination Act, but rather of the Race Relations Act.
6. On 12 June of this year the directions that had been given to the three earlier related matters on 3 May were extended so as to apply to the fourth appeal, the Bond appeal.
7. On 26 June of this year, there was a petition by Mr D'Souza, or on his behalf, to the House of Lords for leave to appeal D'Souza, because the Court of Appeal had refused leave. There was then a notable gap in the relevant timetable until one comes to 31 October, a few days ago in other words, when the Disability Rights Commission asked to come on the record in the Bond case and also asked for the first time that the appeals fixed for next Monday and Tuesday should be stayed pending the outcome of the petition to the House of Lords for leave to appeal D'Souza.
8. On 1 November the learned Registrar of the EAT refused that application, saying that the matter would stay in the list for 12 and 13 November. On 2 November the Disability Rights Commission asked for an oral hearing and that was granted and hence there is an oral hearing today.
9. More recently again, on 7 November the House of Lords indicated in writing that provisional leave had been given in the D'Souza case to the Appellant and indicated that, if the London Borough of Lambeth, the Respondents to the D'Souza case, wished to object to the provisional leave becoming full leave, they ought to make objections by 21 November. We do not yet know whether Lambeth will so object.
10. Mr Ahluwalia, on behalf of all Appellants, on the instructions of the Disability Rights Commission, tells me that in fact the Commission had known before 7 November that provisional leave had been given in the D'Souza case but, presumably, only a little before.

Mr Swift, for the Respondent British Sugar, opposes any adjournment, as does Mr Kibling for 3M. They are the only other parties who have appeared today.

11. Needless to say, when an application is made quite so late for an adjournment, a compelling case needs to be made, and Mr Ahluwalia's case largely is that the Race Relations Act provisions, the Disability Discrimination Act provisions and the Sex Discrimination Act provisions provide a code in this area - post-employment discrimination - and that, in effect, the anomalous position of the Sex Discrimination Act jurisdiction (which already allows, to some extent, provision for post-termination relief) is not properly to be regarded as an anomaly but that the three altogether, as a common code, should all end up in the situation which, at the moment, only applies to sex discrimination, and that the case in the Court of Appeal in relation to the Race Relations Act which distinguished it from the Sex Discrimination Act will not improbably be overturned by the House of Lords and there will then emerge one common code, following the pattern already recognised as in the Sex Discrimination Act.
12. Well, one can see that there will be powerful arguments of that character, but I am bound to say I am not impressed relative to an adjournment. Mr Swift argues, as does Mr Kibling, that one cannot say that the D'Souza case in the House of Lords, even if the Appellant succeeds, will effectively determine the cases that are otherwise to be before me on Monday and Tuesday. The Disability Discrimination Act is not in play in D'Souza. Obviously the House of Lords might make what would necessarily seem to be obiter observations upon it but, even if they do, they will remain obiter, and it seems to me not improbable that they will be disinclined to make such observations in any case, themselves recognising that they would be obiter. I am far from convinced that the D'Souza case will be determinative of the cases otherwise to come in front of me on Monday and Tuesday. So that is one reason for not delaying the matter; if one could be certain that D'Souza would be determinative, obviously that would be a powerful factor, but one cannot be so sure.
13. Secondly, no particular prejudice to the Appellants has been shown; there is no evidence of any special circumstance or hardship that would overtake them if no adjournment were to be granted. Obviously they may end up spending more money on litigation than they might otherwise, but that very much depends on what the House of Lords says in D'Souza and, as I have mentioned, one cannot be sure what that will prove to be. The very fact that no particular prejudice is spoken to by the Appellants, and certainly not in evidence, is a material factor of some weight.
14. Thirdly, as it seems to me, costs have already been incurred to some considerable extent in relation to Monday's and Tuesday's hearing. In the ordinary way, perhaps, one would consider whether the Appellants could pay the costs thrown away but there is no real likelihood here of substantial recovery, as I would guess, from the Appellants, and certainly no evidence before me that suggests that they would be in a position to pay costs thrown away. Nor, of course, is there any way of making the Disability Rights Commission pay costs, so the position is that the Respondents to the appeal, having incurred costs for Monday and Tuesday, would be likely to be fairly substantially out of pocket in relation to costs thrown away by an adjournment. That is the third point.
15. A fourth point is that it is at least a possibility, to put it no higher than that, that the most convenient course would be for the EAT to complete its deliberations as soon as practicable, having started on Monday and Tuesday of next week, and for the Appellants, should they lose, then to appeal to the Court of Appeal. The EAT could indicate to the Court of Appeal, if it thought fit, that the matter was appropriate to be accelerated and it could be that the Court of Appeal would be in a position to pass the matter on as early as is practicable to the House of Lords so that it could in fact be heard along with D'Souza and thereby get to a position in which disability discrimination was not left as obiter, but could be ruled upon as ratio alongside the D'Souza appeal.
16. Another point is the remarkable delay I mentioned earlier, in the course of the chronology, as to the gap between 12 June of this year and 31 October of this year. It would seem not improbable that the Disability Rights Commission knew of the petition being lodged in the D'Souza case not substantially later than 26 June, possibly even knowing before that of an intention to petition in the D'Souza case. Yet there is no warning letter in that whole summer period in which the DRC indicates to the other parties that it might be prudent for them to stay their hand and not expend money on Skeletons and so on, because there might be an outcome that would lead to an adjournment. There is a long period in which such a letter might have saved costs and yet no such letter was written and the application for the adjournment now comes on at the last possible moment before Monday's hearing.
17. Another point is that in some of the cases, other parts of the Appellants' litigation have been stayed pending this part; the disability discrimination post-employment claims. Both in Mr Kirker's case and Mr Jones' case, as I understand it, there is a balance to their separate IT1s which has been stayed so that if it transpires that disability claims can be ruled upon, all claims would be taken together and there would be only one bite at the cherry rather than two. That means that it becomes particularly important to get a conclusion as early as possible because if disability matters do ultimately get remitted, such claims and the balance of claims have to be heard at the Employment Tribunal, well then, one wants to have as little a gap as is practicable between the events concerned in them and the hearing. Awaiting the outcome of D'Douza is, I think, more likely to lengthen that gap than shorten it.
18. All these factors seem to me to point overwhelmingly to a refusal of the application for an adjournment. Of course, as is said for the Disability Rights Commission, the House of Lords could rule that there is a common code between all three heads of discrimination, race, sex and disability, but one certainly cannot assume that that is going to be their decision and, after all, so far the Court of Appeal has indicated that there is no commonality, at any rate between sex and race.
19. Accordingly, for the reasons I have given, it seems to me that I cannot accede to the request for an adjournment and so the cases will be heard on Monday and Tuesday of next week.

Costs of today to be dealt with at the end of the appeal on Tuesday