United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BITU BHALLA Instructed By: The Chambers of Desmond de Silva QC First Floor One Essex Court Temple London EC4Y 9AR
For the Respondent	MS NAOMI CUNNINGHAM Free Representation Unit 4th Floor Peer House 8-14 Verulam Street London WC1X 8LZ


 


THE HONOURABLE MR JUSTICE KEITH:

Introduction

1. Mr Lancelot Caramba-Coker was employed at the Embassy of the State of Kuwait as a shipping clerk from 15 February 1999 until he was summarily dismissed on 22 October 1999. He presented complaints of unfair dismissal and race discrimination. He named the Military Affairs Office of the Embassy as the respondent, and we shall refer to it in this judgment as "the mission". He subsequently changed his complaint of unfair dismissal to one of wrongful dismissal. An employment tribunal held at London South found that Mr Caramba-Coker had been wrongfully dismissed and unlawfully discriminated against on the ground of his race. He was awarded £754.64 for his wrongful dismissal and compensation of £4,000.00 for the racial discrimination. He was also awarded interest. The mission now appeals against the assumption of jurisdiction by the tribunal over Mr Caramba-Coker's claims.

The history of the proceedings

2. For reasons which will become apparent shortly, it is necessary to set out the chronological history of the proceedings. Mr Caramba-Coker's originating application was presented to the tribunal on 12 January 2000. Difficulties over service resulted in the case not being heard until 11 March 2002. The mission had not filed a notice of appearance, and it elected not to attend the hearing or make written representations to the tribunal. The tribunal's decision on the complaints incorporating its extended reasons was entered in the register on 26 March 2002, which was also when copies of the decision were sent to the parties. The mission had 42 days from that date, i.e. until 7 May 2002, to serve a notice of appeal from the tribunal's decision: see rule 3(3)(a) of the Employment Appeal Tribunal Rules 1993 ("the 1993 Rules"). It did not do so until 2 July 2002. It was 56 days out of time. The sole ground of appeal was that the tribunal had had no jurisdiction to consider Mr Caramba-Coker's complaint because the mission was immune from the tribunal's jurisdiction under the State Immunity Act 1978 ("the 1978 Act").
3. The question whether the mission should be granted an extension of time for serving its notice of appeal was considered by the Registrar of the Employment Appeal Tribunal. On 8 October 2002, she granted the mission an extension of time in which to serve its notice of appeal to 2 July 2002, the date on which it had actually been served. Mr Caramba-Coker's representatives were sent a copy of the Registrar's order. Mr Caramba-Coker had five days from 8 October 2002 in which to serve a notice of appeal from the Registrar's decision: see rule 21(2) of the 1993 rules. His representatives did not do so until 6 March 2003. The sole ground of appeal was that no exceptional reason had been shown by the mission for the delay in serving its notice of appeal.
4. The question whether Mr Caramba-Coker should be granted an extension of time for serving his notice of appeal was considered by the Registrar on 10 March 2003. She refused Mr Caramba-Coker an extension of time. On the following day, 11 March 2003, Mr Caramba-Coker's representatives served a notice of appeal from the decision of the Registrar.
5. There were therefore three appeals before the Employment Appeal Tribunal at the hearing on 25 March 2003:

(i) the mission's appeal from the decision of the tribunal ("the first appeal"),

(ii) Mr Caramba-Coker's appeal from the order of the Registrar of 8 October 2002 extending the mission's time for serving its notice of appeal from the decision of the tribunal ("the second appeal"), and

(iii) Mr Caramba-Coker's appeal from the order of the Registrar of 10 March 2003 refusing to extend his time for serving his notice of appeal from the order of the Registrar of 8 October 2002 ("the third appeal").

Analytically, these appeals had to be considered in the reverse order. The first appeal could only proceed if either the second or the third appeals were dismissed. The second appeal could only proceed if the third appeal succeeded. Accordingly, it was appropriate to consider the third appeal first. In the course of the hearing, we dismissed the third appeal, and said that we would give our reasons for doing so when giving judgment on the first appeal. Since we reserved judgment on the first appeal, this is now our judgment on the first appeal, as well as containing our reasons for dismissing the third appeal.

The third appeal

6. The reason for the delay in serving the notice of appeal from the order of the Registrar of 8 October 2002 was candidly explained by Ms Naomi Cunningham for Mr Caramba-Coker in para. 14 of her skeleton argument. Before and after 8 October 2002, Mr Caramba-Coker had been receiving free advice and assistance from the Mary Ward Legal Centre and subsequently from the Free Representation Unit. Voluntary sector agencies are not in a position to act as quickly as might be expected of specialised lawyers acting for a paying client. It was only recently when preparations for the first appeal were at an advanced stage that it was realised by Mr Caramba-Coker's advisers that it was in Mr Caramba-Coker's interests for the second appeal to be mounted.
7. We note that little prejudice will have been caused to the mission by the delay in serving the notice of appeal in the second appeal. The consequence of the delay has simply been that Mr Caramba-Coker has had to apply for an extension of time to serve the notice of appeal in the second appeal, and has had to mount the third appeal in the light of the refusal of that application. No costs were incurred by the mission in respect of that application by Mr Caramba-Coker, because the Registrar considered the application on the papers, apart from the costs of preparing any written submissions on the issue. And such costs as were incurred by the mission on the third appeal would either have been incurred on the hearing of the second appeal if it had been heard separately from the first appeal, or would have been included in the costs of the first appeal if it had been heard at the same time as the first appeal. Nor had the delay in serving the notice of appeal in the second appeal delayed the hearing of the first appeal: the first appeal could still be heard on 25 March 2003 if the second appeal was dismissed.
8. We noted three other things. First, Mr Caramba-Coker is personally not to blame for the delay, he having understandably left the conduct of his case to his advisers. Secondly, the second appeal relates to a decision which is not a decision on the merits but a decision on a procedural default relating to time. Thirdly, to use the language of the notice of appeal in respect of the third appeal:

"The [mission's] approach to these proceedings, and in particular its complete disregard for the time limits imposed by the rules governing proceedings in both the employment tribunals and the Employment Appeal Tribunal, has put [Mr Caramba-Coker] to great trouble, anxiety and inconvenience. It is not appropriate in these circumstances that a delay on [Mr Caramaba-Coker's] part capable of causing the [mission] little or no inconvenience should be permitted to deprive him of what may be his best opportunity of defeating the [mission's] appeal."

9. An appeal from the Registrar under rule 21(1) of the 1993 Rules is a re-hearing of the Registrar's decision: see United Arab Emirates v. Abdelghafar [1995] ICR 65 at p. 69E. In the light of the considerations which we have mentioned, we might have been minded to allow the third appeal, and therefore to extend Mr Caramba-Coker's time for filing his notice of appeal in the second appeal, if we had concluded that there was some merit in the second appeal. However, we concluded that there was no merit in the second appeal for the reasons which follow.
10. In Abdelghafar, Mummery J. (as he then was) set out the principles on which the Employment Appeal Tribunal would extend the time for serving a notice of appeal from a decision of an employment tribunal. These principles are now very well known, and they were endorsed by the Court of Appeal in Aziz v. Bethnal Green City Challenge Co, Ltd. [2000] IRLR 111. We trust that we shall be forgiven for not repeating them here, but they are set out at pp. 69F-72C. What is plain is that the merits of the appeal usually carry little weight. At p. 72A-B, Mummery J. said:

"The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the appeal tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal."

11. However, when a respondent wishes to appeal on the ground that the tribunal had no jurisdiction over the applicant's complaint because the respondent enjoyed an immunity from the jurisdiction of the tribunal under the 1978 Act, different considerations apply. At pp. 73E-74B, Mummery J. said:

"State immunity is a doctrine of public international law now incorporated in the domestic law of the United Kingdom by the State Immunity Act 1978. The doctrine recognises that there may be real difficulties and serious objections in tribunals in the United Kingdom conducting investigations into the internal affairs of the embassy of a foreign state. For present purposes the important point on state immunity is that it is provided by section 1(2) of the State Immunity Act 1978 that the court itself has a positive duty to give effect to the immunity conferred by the Act, even in cases where the state does not appear in the proceedings in question. Section 1(2) is in these terms: 'A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question.'

The decision of this appeal tribunal in Sengupta v. Republic of India [1983] ICR 221 illustrates how seriously the court regards this obligation. In that case the foreign state did not appear to take the point on jurisdiction. The court asked for the appointment of an amicus to assist it. If the court has a duty under statute to give effect to the immunity conferred, even though the state does not appear to claim it, that duty may be all the greater in a case where the foreign state has, as here, expressly taken the point of immunity.

The overriding duty of the court, of its own motion, is to satisfy itself that effect has been given to the immunity conferred by the State Immunity Act 1978. That duty binds all tribunals and courts, not just the court or tribunal which heard the original proceedings. If the tribunal in the original proceedings has not given effect to the immunity conferred by the Act, then it must be the duty of the appeal tribunal to give effect to it by correcting the error. The alleged error of the tribunal cannot be corrected in this case unless an extension of time to appeal is granted to the employers. The employers have shown that there is a reasonably arguable case that the industrial tribunal failed to apply the law of state immunity correctly. That makes this an exceptional case for an extension of time." (Emphasis supplied)

The sentence we have emphasised shows that the duty imposed by section 1(2) of the 1978 Act applies to the Employment Appeal Tribunal when it is considering whether to extend a respondent's time for appealing in order to take the state immunity point.

12. The mission's inaction, its wish to have the relevant documents translated into Arabic and problems over service all contributed to the enormous length of time between the presentation of the originating application and the hearing of Mr Caramba-Coker's complaints on their merits. Moreover, the issue of state immunity was not raised by the mission until it served its notice of appeal in the first appeal. That is a factual difference between the present case and the case of Abdelghafar. But the mission was entitled not to participate in the proceedings in the tribunal. Moreover, section 1(2) of the 1978 Act required the tribunal to consider the issue of state immunity of its own motion. It did not address that issue at all, even though it was aware that the provisions of the 1978 Act might be relevant, because some of its provisions were referred to in the tribunal's reasons for an interlocutory order which it had made on 29 November 2001 relating to the service of the proceedings on the mission. The failure of the tribunal which heard Mr Caramba-Coker's claim on its merits to consider at all whether the mission was immune from the jurisdiction of the tribunal means that this was an exceptional case for an extension of time. The Employment Appeal Tribunal would be failing in its duty to give effect to section 1(2) of the 1978 Act if the mission's time for serving its notice of appeal against the decision of the tribunal was not extended. Accordingly, the Registrar's order of 8 October 2002, which expressly referred to what Mummery J. had said about state immunity in Abdelghafar, was correct. It follows that the second appeal had to fail, and in those circumstances the third appeal had to be dismissed, because there would have been no point in extending Mr Caramba-Coker's time for serving a notice of appeal in order to pursue an appeal which had no chance of success.

The first appeal

13. The failure of the tribunal to consider at all the issue of state immunity would in the normal course of events have resulted in a remission of the case to the tribunal to determine whether the mission was immune from the jurisdiction of the tribunal. But the primary stance of both Ms Cunningham and Mr Bitu Bhalla for the mission was that that is unnecessary, though they asserted that for very different reasons. Ms Cunningham contended that the nature of the remedy which Mr Caramba-Coker sought on his complaint of race discrimination meant that there was no question of a claim to state immunity succeeding. Mr Bhalla argued that the nature of the remedy which Mr Caramba-Coker sought could not have prevented the mission's unassailable claim to state immunity from arising.
14. Section 1(1) of the 1978 Act provides:

"A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act [i.e. sections 1-17]."

One of these exceptions is in section 4(1) of the 1978 Act, which provides:

"A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there."

However, the effect of section 4(1) is negated by section 16(1)(a), which provides:

"…..section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964…..".

The Convention referred to is the Vienna Convention on Diplomatic Relations signed in 1961 ("the Vienna Convention"), and the Act of 1964 is a reference to the Diplomatic Privileges Act 1964 ("the 1964 Act"). In view of the definition of "members of a mission" in the Vienna Convention, it was not contended by Ms Cunningham that the body named by Mr Caramba-Coker in his originating application as the respondent to his complaint was not a mission or that Mr Caramba-Coker was not a member of a mission within the meaning of the Vienna Convention. Accordingly, the mission enjoyed the immunity afforded to it by section 1(1) of the 1978 Act, unless its immunity was removed by another provision of the 1978 Act. Ms Cunningham contended that the immunity was removed by section 5 of the 1978 Act, which provides:

"A State is not immune as respects proceedings in respect of –

(a) death or personal injury; or

(b) damage to or loss of tangible property,

caused by an act or omission in the United Kingdom."

It was said that Mr Caramba-Coker's complaint of race discrimination amounts to "proceedings in respect of…..personal injury".

15. Section 54 of the Race Relations Act 1976 provides that a complaint of race discrimination in the employment field is to be presented to an employment tribunal. Section 56(1)(b) provides (so far as is material):

"Where an employment tribunal finds that a complaint presented to it under section 54 is well founded, the tribunal shall make such of the following as it considers just and equitable…..(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court…..to pay to the complainant if the complaint had fallen to be dealt with under section 57….."

And section 57 provides (so far as is material):

"(1) A claim by any person …..that another person…..(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part III …..may be made the subject of civil proceedings in like manner as any other claim in tort…..

(4) For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head."

The effect of these provisions is to create a statutory tort in respect of which damages are available to compensate injury to feelings.

16. Section 57(4) was considered by the Court of Appeal in Sheriff v. Klyne Tugs (Lowestoft) Ltd. [1999] ICR 1170. At [11], Stuart-Smith L.J. said:

"Section 57(4) adds a head of injury for which compensation is payable since at common law a claimant cannot as a rule recover damages for injury to feelings, save in defamation and false imprisonment. The subsection does not, as [the claimant's counsel] submitted, restrict the scope of compensation which can be awarded in discrimination cases to injury to feelings as opposed to physical or psychiatric injury. On the contrary, it adds a head not otherwise recoverable. I agree however with [the claimant's counsel] that there is a well recognised difference between injury to health or personal injury, and injury to feelings."

Two consequences follow from that statement of the law. First, if the only claim for non-pecuniary loss which Mr Caramba-Coker made in his complaint of race discrimination was for injury to his feelings, that would not amount to a claim for compensation for personal injury. (Ms Cunningham argued otherwise. The fact that personal injury and injury to feelings are different concepts did not mean, so she contended, that personal injury could not include injury to feelings. We disagree. If injury to feelings cannot be claimed at common law, save in actions for defamation or false imprisonment, whereas personal injury can be claimed, it follows that injury to feelings is not to be regarded as a species of personal injury.) Secondly, if Mr Caramba-Coker was in fact claiming in his complaint of race discrimination damages for personal injury (as opposed to injury to feelings), such a claim comes within section 57(4), and would of course come within section 5 of the 1978 Act.

17. Attached to Mr Caramba-Coker's originating application was a statement which set out the nature of his case. It set out the treatment which he contended amounted to acts of race discrimination, and concluded:

"As a result of all this treatment, I developed a medical condition which necessitated consulting my G.P. The doctor said that I was under stress and he told me to take seven days sick leave starting on 27th September and thereafter he told me to get another two weeks off. Also as a result of this I developed irregular heartbeat, loss of sleep and total lack of confidence. I sent the medical certificates to the Chief of Military Affairs Office, which he did receive on regular intervals during my illness prior to the termination date. I confirmed that the medical certificates were received on time throughout."

Thus, if his originating application was anything to go by, his claim was not a claim for injury to feelings, i.e. the hurt which he felt about being treated differently from other employees because he was black. Mr Caramba-Coker was claiming that he developed "a medical condition" as a result of his treatment, and a subsequent physical symptom was an irregular heartbeat. He was therefore claiming that he had suffered physical injury as a result of his treatment. He was also claiming that he was under stress, which manifested itself in loss of sleep and loss of confidence. It is well established that personal injury encompasses psychiatric harm, and Mr Caramba-Coker was therefore claiming that he suffered psychiatric injury as a result of his dismissal. Accordingly, it is said that Mr Caramba-Coker's complaint of race discrimination amounted to "proceedings in respect of…..personal injury".

18. Mr Bhalla's initial response to that argument was that section 5 does not apply to causes of action in which personal injury is only an incidental consequence. Section 5 only applies to a cause of action in which personal injury is a direct consequence of the conduct complained of, for example a cause of action in negligence following a road traffic accident in which the claimant was injured by the negligent driving of the defendant. We see no warrant for putting that gloss on the plain language of section 5.
19. But Mr Bhalla is on surer ground when he relied on how the tribunal actually approached the assessment of the non-pecuniary loss which Mr Caramba-Coker suffered as a result of the race discrimination to which the tribunal found he had been subjected. In paras. 18 and 19 of its extended reasons, the tribunal said:

"18. It remains therefore for us to consider the question of damages for injury to feelings and the treatment to which he suffered of a period of some months of being excluded and cold-shouldered by his two Pakistani colleagues and then suffering a hurtful and, on the facts before us, a totally unjustified dismissal without any opportunity to understand the reasons or put forward any defence or appeal.

19. We considered the decision of ICTS(UK) Ltd. v. Tchoula [2000] IRLR 643 and the Judicial Studies Board Guidance. [Mr Caramba-Coker] stated that it was a shock and surprise to him after all these years working in different countries (and even in the RAF all those years' ago) that he never suffered race discrimination before only to suffer it at an Embassy where all the staff were, in terms of our own jurisdiction, people from 'ethnic minorities.' He has plainly suffered from ill health to do with blood pressure and heart condition. The emotional shock and dismissal clearly, in our judgment, exacerbated the situation and all contributed to the unpleasant memories and emotional upset which he underwent. We have come to the conclusion that the proper figure to compensate [Mr Caramba-Coker] in that regard therefore is the sum of £4,000.00."

And in its decision the tribunal characterised the award of £4,000.00 as being for "compensation for loss of employment and injury to feelings".

20. We do not know what Mr Caramba-Coker's evidence in the tribunal was. Thus, we do not know whether the award for injury to feelings was made because Mr Caramba-Coker's evidence (as opposed to what he had said in the statement annexed to the originating application) related to the hurt he felt rather than the physical and psychiatric consequences of his treatment, or whether Mr Caramba-Coker's evidence was consistent with what he had said in the statement annexed to his originating application, so that the tribunal wrongly applied the label "injury to feelings" to that evidence. So far as Mr Caramba-Coker's physical condition is concerned, we cannot tell whether the tribunal found that the ill-health which Mr Caramba-Coker suffered from ("blood pressure and heart condition") was a consequence of the treatment he had received or was a pre-existing condition unrelated to the treatment which he had received. So far as his mental state is concerned, we cannot tell whether the tribunal considered whether the "emotional shock" which he experienced and the "unpleasant memories and emotional upset" which he underwent as a result of his treatment amounted to psychiatric harm or injury to feelings. This last point is not surprising. If the tribunal was not considering the issue of state immunity, it would not have had its attention brought to section 5 of the 1978 Act, and the need to distinguish between personal injury and injury to feelings.
21. In the circumstances (and subject to an important point which Mr Bhalla made about the opening words of section 16(1) of the 1978 Act), we have concluded that we have no alternative but to remit the case to the tribunal for it to assess whether the mission's immunity from the jurisdiction of the tribunal under section 1(1) of the 1978 Act has been removed by section 5 of the 1978 Act. We therefore turn finally to the point which arises on the opening words of section 16(1) of the 1978 Act, which read:

"This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968….."

22. Section 5 is in the Part of the 1978 Act in which section 16 is, and the argument is that section 5 does not affect any immunity or privilege conferred by the 1964 Act or the Consular Relations Act 1968 ("the 1968 Act"). Section 2 of the 1964 Act provides (so far as is material):

"…..the Articles set out in Schedule 1 to this Act (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) shall have the force of law in the United Kingdom….."

Two Articles in the Vienna Convention are relevant. First, Art. 31.1 provides (so far as is material):

"A diplomatic agent…..shall …..enjoy immunity from [the] civil and administrative jurisdiction [of the receiving State] ….."

That is stated to be subject to certain exceptions, none of which are relevant here. What that means is that a diplomatic agent (and a diplomatic agent is defined in Art. 1(e) as "the head of the mission or a member of the diplomatic staff of the mission") enjoys immunity from civil suit in the courts and tribunals in the United Kingdom. Secondly, Art. 37.2 provides (so far as is material):

"Members of the administrative and technical staff of the mission …..shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties….."

What that means is that a member of the administrative and technical staff of a mission enjoys immunity from civil suit in the courts and tribunals in the United Kingdom, provided that he is not a national of the United Kingdom and does not permanently reside in the United Kingdom, except for acts performed outside the scope of his duties. The argument is that if a diplomatic agent or a member of the administrative and technical staff enjoys immunity from civil suit in the tribunal, the mission cannot be vicariously responsible for any act of race discrimination committed by them.

23. The acts of discrimination which Mr Caramba-Coker alleged were committed by two Pakistani shipping clerks and by Col. Faisal Al-Logani, who in addition to being the manager of the shipping department in which Mr Caramba-Coker worked was described as "Chief, Military Affairs Office". Mr Bhalla asserted that Col. Al-Logani was a diplomatic agent within the meaning of Art. 1(e). He conceded that the two Pakistani shipping clerks were not diplomatic agents, and that the complaint made against them in the originating application, and the findings of the employment tribunal, showed that the acts of discrimination to which they subjected Mr Caramba-Coker were carried out in the course of their duties. Thus, the critical question was whether the two Pakistani shipping clerks were nationals of the United Kingdom or permanently resident in the United Kingdom. Mr Bhalla said that it was for Mr Caramba-Coker to prove that they were either nationals of the United Kingdom or permanently resident in the United Kingdom, and that he had not done so.
24. This elaborate and ingenious argument falls at the first hurdle. The opening words of section 16(1) of the 1978 Act are in effect a "for the avoidance of doubt" provision. They make it clear, unless it might be thought otherwise, that if a diplomat or a consular official enjoys an immunity or privilege under the 1964 or 1968 Acts, their immunity or privilege is not affected by Part I of the 1978 Act. That is because the 1964 and 1968 Acts confer immunities and privileges on what can loosely be described as diplomats and consular officials. Thus, even if Col. Al-Logani and the two Pakistani shipping clerks enjoyed immunity from civil suit under the 1964 Act, that would not create for the mission an immunity from civil suit in respect of their acts, if the mission was liable for their acts. And the mission was liable for their acts of race discrimination because section 32(1) of the Race Relations Act 1976 provides:

"Anything done by a person in the course of his employment shall be treated for the purposes of this Act…..as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

It follows that the opening words of section 16(1) of the 1978 Act do not trump Mr Caramba-Coker's reliance on section 5 of the 1978 Act.

Conclusion

25. Mr Caramba-Coker's reliance on section 5 of the 1978 Act cannot relate to his claim for damages for wrongful dismissal. It is accepted that the mission was immune from the tribunal's jurisdiction in respect of that claim. Accordingly, the mission's appeal against the assumption by the tribunal of jurisdiction relating to that claim is allowed, the finding of the tribunal relating to that claim is set aside, and it is declared that the mission was immune from the jurisdiction of the tribunal in respect of Mr Caramba-Coker's claim for damages for wrongful dismissal.
26. However, the issue as to whether the mission was immune from the jurisdiction of the tribunal in respect of Mr Caramba-Coker's complaint of race discrimination turns on whether the mission's ability to rely on section 1(1) of the 1978 Act has been trumped by section 5 of the 1978 Act. We therefore remit to the tribunal the question whether Mr Caramba-Coker's complaint of race discrimination amounted to "proceedings in respect of….. personal injury" within the meaning of section 5 of the 1978 Act. If it is practicable to do so, we direct that the remission be to the tribunal with the same three members who considered Mr Caramba-Coker's complaint on its merits, but if turns out not to be practicable for the tribunal to convene with the same three members, we direct that the remission be to a differently constituted tribunal. We see no reason why the mission should not take part in the remitted proceedings if it chooses, but we should not be taken as deciding that that could not amount to a submission to the tribunal's jurisdiction. We have not been addressed on the point, but we would be inclined to the view that where the question of jurisdiction depends on facts which are in dispute, no submission to jurisdiction would occur if the party disputing jurisdiction took part in the proceedings solely for the purpose of securing a favourable finding on those facts.