United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondents	No appearance or representation by or on behalf of the Respondents

SUMMARY

Amendment – upheld refusal to allow application to amend to allege religious discrimination

(note: in part at least the claim was backed by an existing race discrimination claim).

HHJ Reid


 


HIS HONOUR JUDGE J R REID QC

1. I have before me first of all an application to adjourn the hearing of this appeal. That application was made by a faxed letter this morning and is in these terms:

"Dear Sir/Madam

Bari -v- Tower Hamlets CAB
Date of hearing 27 February 2004

My husband, who has represented me in the previous proceedings was supposed to represent me this morning at the hearing. However, unfortunately, this morning he became unwell as he has angina from heart conditions, such as he would not be able to attend the hearing and represent me.

The indexed Bundles duly paginated, Chronology, Skeleton arguments, list of Authorities, together with the Case Reports have been handed in at the Audit House for the hearing.

I am not competent to represent myself as there are complicated issues of law in this case, and also that I have to be with my husband in the case of emergency. So I would not be able to attend either.

Under the foregoing circumstances, I wish to request that the hearing be adjourned. I would be grateful if this letter be placed before the Judge at the hearing this morning.

Many thanks for your kind help in this matter.

Yours faithfully"

The difficulty about this, apart from the fact that it was not supported by any medical evidence whatsoever, is that the reason that the hearing has come on today is that there is fixed for 5 March a five day hearing in which Mrs Bari is pursuing a wide variety of other claims against Mr Hashi and the Tower Hamlets Citizens Advice Bureau, and the object of this appeal coming on at this stage was so that it could be known whether or not her claim for religious discrimination could be litigated at the same time, or indeed at all.

2. In my judgment, it would not be appropriate in these circumstances to adjourn the hearing of the appeal. I have before me an extremely full Skeleton Argument from her husband; I have also a substantial bundle of documents and a variety of authorities. It does not seem to me that either he or his wife, the Appellant, would be in a position substantially to add to those matters. In those circumstances it seems to me that there is no injustice in dealing with the appeal today in the absence of the Appellant, and I may say in the absence of the Respondents, who have put in neither appearance nor Skeleton Arguments beyond a very brief response to the appeal. Weighing the pros and cons it seems to me that justice and the public interest can best be served if the appeal is dealt with today.
3. Turning then to the substance of the appeal, the appeal is expressed as being an appeal against the striking out by the Employment Tribunal of an application for compensation for religious discrimination. That in fact is a misunderstanding of the position. In order to understand the true position, it is necessary to look back at this history of the case.
4. The background of the case is that Mrs Bari was employed by the Tower Hamlets CAB and asserts that there have been a substantial number of wrongs done to her. She has been employed there since 9 April 1996 and her Originating Application dated 4 December 2002 sets out her complaints at Box 1 of the form IT1 in these terms:

"Sex Discrimination, Victimisation, Race Discrimination, Unlawful deductions from Wages/Breach of Contract"

It will be observed that there is no reference there to any religious discrimination. The details given in Box 11 are in the following terms:

"1.0 The Applicant believes she had been discriminated in breach of Article 141 (as amended), EC Treaty and/or contrary to SDA 1975.

1.1 The Applicant had been denied the opportunity of applying for the post of Debt Franchise Specialist (Supervisor - SO2 grade) in breach of EOP. She has suffered as a result in terms of loss of opportunity for a better and higher grade job, offering valuable specialist/supervisory experience for her career.

1.2 Duran Hashi (Manager, Bow Bureau) having had previously been appointed in his posts twice in breach of EOP, he has had little or no regard to the impact of the breach of SDA 1975 (as amended) and of the denial to the Applicant of EOPs for appointment/promotion to the posts.

2. Following the complaints made by the Applicant (see above), the Applicant has been victimised under SDA 1975 and had further been discriminated in breach of RRA 1976, by unfavourable treatments in refusing flexi-working hours, work instructions, leave records, training procedures, etc.

3. The Respondents (Tower Hamlets CABx Ltd) have been continuously deducting from Applicant's wages since May 2002 @ 8/9% instead of contractual @ 6% for her pension contribution, without her authorisation. This is unlawful deduction from her wages in breach of Sec 13 of ERA 1996, and in breach of her Contract of Employment. Despite Applicant's request to refund her the over deductions the Respondents failed to do so."

5. Not surprisingly, that somewhat blanket application drew a request for some Particulars and an Order was made on 23 January 2003 that she supply Particulars. It was at this point under the heading of "Particulars of Sex/Race Discrimination and Victimisation claims:" (and in answer to an Order that she give: "Full particulars of each and every incident upon which you intend to rely to support your complaints of Race and Sex Discrimination and Victimisation"). that the first hint of any religious element appears. Among a total of 22 Particulars, at (xiv) and (xv) are the following

"(xiv) Both the First and Second Respondent's refusal to allow the flexi-working arrangements during Ramadan in November 2002, is believed by the Applicant to be race discrimination in connection with her religion and/or victimisation, for making complaints of discrimination.

(xv) Alternatively, this refusal to allow flexi-working arrangement amounted to unlawful discrimination on religious grounds, under EU laws."

6. That being the state of play so far so the pleadings were concerned, the matter came before the Tribunal on a directions hearing and an Order was then made by the Tribunal. That Order made no mention of any religious discrimination and Mrs Bari thereon took the view that this letter, dated 4 August, amounted to a striking out of her claim for religious discrimination. In my view she is clearly in error in this.
7. The reason that there was no mention of religious discrimination in the documents following the Decision promulgated on 4 August was quite simply that the Tribunal did not have before it a religious discrimination claim. What it had in effect was an application to amend the IT1 to add such a claim. That was dealt with in a letter signed on behalf of the Chairman which said:

" 2.1 There is currently no law within the jurisdiction of the Employment Tribunal which renders unlawful discrimination on the grounds of religion. If the Applicant wishes to challenge this direction by Mr Lamb, she should do so by way of appeal to the Employment Appeal Tribunal."

8. That was followed up eventually and belatedly by Extended Reasons which are in these terms, so far as material:

"By a letter dated 9 June 2003, the Applicant applied for a variation of the directions so as to add a complaint of discrimination on the grounds of religion, relying upon Articles 8,9,13, 14 and 41 of the European Convention on Human Rights: and on the European Union Directive adopted on 27 November 2000, "outlawing discrimination on grounds of region.", as she put it. She argued in her letter that the Directive had direct effect, having been issued under the new Article 13 of the Amsterdam Treaty, 1^st May 1999 "as is Article 141(3)".

5. The Applicant's husband was told by me at the interlocutory hearing (and this is a point confirmed by the second Respondent's solicitors in their letter to the Tribunal of 24 June 2003) that there is no legislation on religious discrimination in force in this country at present. He made reference to the framework directive on equality. However, since then, the Applicant has pursued this point in correspondence, and has complained of the absence of extended reasons, and having considered the position afresh, I consider it right to provide these extended reasons so that there is an order of the Tribunal which can be put before the Employment Appeal Tribunal if the Applicant so desires.

6. As for the contention that the stated articles of the European Convention on Human Rights can be invoked by the Applicant, the simple answer is that the Tribunal has not been given jurisdiction by the Human Rights Act to enforce the convention rights in proceedings in the Tribunals, as free standing rights. The Tribunal can, and must, interpret the laws which it applies so far as possible, to ensure that they comply with the convention. However, there is none to which "religious discrimination" could be attached.

7. The directive adopted on 27 November 2000 is a framework directive. It allowed Members States until 2 December 2003 to implement it. The United Kingdom has implemented it by the Employment Equality (Religion or Belief) Regulations 2003. I know of no legal basis for giving direct effect to that framework directive, and certainly not where the employer is a private sector employer, and not the state or a state body. The broad argument being pursued by the Applicant in this case is very similar to that which was pursued before the House of Lords in the case of McDonald v Advocate General for Scotland [2003] IRLR 512, in seeking to pursue a complaint based upon discrimination on the grounds of sexual orientation in advance of the coming into force of the relevant regulations made this year.

8. I would only add to these extended reasons a point related to the procedure adopted by me in this case. I considered the question, what complaints could be pursued, as a case management issue, and therefore appropriately the subject of correspondence. However, in hindsight, I accept that it would have been better to determine the point raised by the Applicant by way of interlocutory order, as I now have."

9. The matter came before Judge McMullen on a preliminary hearing who granted leave for this appeal to take place and concluded his judgment saying:

"will expedite this appeal so that this religious point can be dealt with. If the Applicant wins, it will go into the hearing on 6 March. If she loses, at least everybody will know where they stand. I will do standard directions for fast track and we will aim to fix a hearing here before 6 March."

That is what has happened and that is how the matter come before me.

10. The Appellant's husband in his Skeleton Argument attacked the Decision below on a variety of grounds. He says that the Tribunal was wrong in saying that it had no jurisdiction. He asserts that the Equality Directive under the EC Treaties could be enforced directly and he says by way of assertion that:

" the Employment Equality Directive 200/78/EC, could be relied on by the Appellant to found her complaint of discrimination on religious ground and the Employment Tribunal have had jurisdiction to hear her complaint of religious discrimination."

That, in my judgment is a bold assertion; it is wrong. It is true that the Employment Appeal Tribunal, as a public authority under the Human Rights Act, is required to apply current legislation so as to comply with various pre-existing human rights European Directives, but there is no substance in the suggestion that the Tribunal can do anything useful in relation to that in this present case, because there is no legislation effective to assist the claimant.

11. Similarly it cannot be said that a CAB is a public authority so that proceedings can be brought directly against it, least of all in the Employment Tribunal under the Human Rights Act. Citizen Advice Bureaux, which are private charities, are not public authorities. A considerable volume of material has been put before me showing the way in which Citizen Advice Bureaux work and a variety of points were taken which it is said indicates that CABx are in fact public authorities. It is suggested that they are under the control of local authorities and delivering services for local authorities. That is not in fact the position. Service Level Agreements may be entered into between particular CABx and particular local authorities. That does not make the CABx public authorities any more than those companies to whom local authorities who contract out rubbish collection thereby become public authorities.
12. Similarly the fact that the local authority in its agreement for service delivery with CABx seeks certain minimum standards does not make the CABx public authorities, nor does the fact that local authority monitors and evaluates what it gets under its contract. It is incorrect to suggest that the local authority controls staffing resources. It is true that the Bureaux have to provide sufficient staff to deal with the services they are contracted to provide but that does not mean that the local authorities govern the staffing arrangements of the CABx. Further, the fact that some public funds are donated to these charities does not make the CABx public bodies. It is true that in some areas some local authorities subject CABx to more local control than others, but that does not mean that any of them, least of all this particular CAB, is a public authority. It follows that that point fails altogether.
13. Beyond that it is then said that the introduction of the Employment Equality (Religion or Belief) Regulations 2003 which took effect on 2 December 2003, somehow enables the claimant, the Appellant, to claim in respect of events which occurred substantially before the Regulations took effect. In my judgment, this is not so. When one looks at the enforcement provisions contained in paragraphs 27 and 28, it is, in my judgment, perfectly clear that the Regulations are not retrospective so to create a cause of action or give a jurisdiction which did not exist at the time of the acts complained of took place. The complaints, as far as I can see, in relation to this matter relate primarily to Ramadan in 2002, over a year before the coming into force of the Regulations.
14. This does not mean that the Applicant is without remedy, if she proves to be right in the serious allegations she has chosen to make. It may be that the allegations that she makes relating to her treatment sound in racial discrimination rather than religious discrimination, and it may be therefore that the Particulars which she gave at subparagraphs 14 and 15 under her Particulars of her complaint, as being Particulars of sex/race discrimination and victimisation, will lead to some award being made to her if she manages to establish the factual basis which she asserts. But in my judgment, so far as this appeal is concerned, the Chairman was entirely right in refusing leave to amend to add the claim for religious discrimination, essentially for the reasons which he gave, and furthermore, the subsequent coming into force of the 2003 Regulations has not improved the Applicant's position.
15. If, of course, she is still in the employment of the Citizens Advice Bureau, and there are future incidents which she can show are incidents of religious discrimination she will then of course be able to bring new and separate proceedings, relying on the 2003 Regulations. What she cannot do is job back by over a year in relation to the matters which she was seeking to raise in the earlier part of last year.
16. For those reasons the appeal fails, and the matter can proceed in the Employment Tribunal on 6 March for the five day hearing as fixed.