United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant

MR SAM NEAMAN (Of Counsel) Instructed by: Bates Wells and Braithwaite Solicitors Cheapside House 138 Cheapside London EC4V 6BB

 

For the Respondent

No appearance or representation by or on behalf of the Respondent

SUMMARY

.

Employment Tribunal erred in law in (i) not taking account of prejudice to the ex employer when considering it was just and equitable to extend time in a discrimination claim, (ii) in misinterpreting the application of section 27(A)(2) of the Race Relations Act 1976 and (iii) in misapplying Rhys-Harper v Relaxion Group plc [2003] ICR 867.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1.                  This is an appeal from the decision of an employment tribunal sitting at Stratford on 14 July 2004 and 14 February 2005. The Chairman was Mr M S Hallen and the members were Mrs J McPhake and Ms V Shelley. The reserved decision was sent to the parties and entered in the Register on 4 March 2005.

2.                  The unanimous judgment of the Tribunal was that the Claimant's claim for race discrimination contrary to section 1(1) of the Race Relations Act 1976 and for discrimination by victimization contrary to section 2 of the same Act was not misconceived, frivolous or vexatious. The Tribunal decided that it was just and equitable to permit the claim to continue and gave directions for further proceedings. The College appealed against that decision by a Notice of Appeal received at the Employment Appeal Tribunal on 16 May 2005.

3.                  Despite requests from the Registrar of the Employment Appeal Tribunal, Dr Abegaze failed to file an Answer to the Notice of Appeal in accordance with Rule 6(2) of the Employment Appeal Tribunal Rules 1993 (as amended by the Employment Appeal Tribunal) (Amendment) Rules 2001 and 2004. On 26 July 2005 the Registrar made a seven day Unless Order. No Answer was filed by Dr Abegaze within that time limit or at all. Accordingly, from 5 August 2005 he has been debarred from defending this appeal. He did not appear at the hearing of the appeal on 21 September 2005.

The Material Facts

4.                  The material facts are set out in paragraphs 1-3 and 4-5 of the Employment Tribunal judgment. The Employment Tribunal found the following facts:

"1 In his Originating Application dated 12 January 2004, the Claimant made a claim for victimisation and discrimination contrary to the Race Relations Act 1976. He argued that the Respondent gave information to a third party namely Shrewsbury College of Art & Technology, which was adverse and affected him to his detriment. When that information came to his knowledge, during the course of a remedies hearing in respect of his claim against Shrewsbury College of Art & Technology on 13 October 2003, he decided to institute these proceedings against the Respondent.

2. In its Notice of Appearance dated 3 February 2004, the Respondent argued that it did not discriminate or victimise against the Claimant and alleged that the acts complained of by the Claimant were out of time. As a consequence of a review of the pleadings in the case, it was determined that a preliminary hearing and pre-hearing review take place as to whether the Claimant's complaint was misconceived and this hearing took place before this Tribunal on 14 July 2004 and 14 February 2005.

3 The Tribunal had before it two bundles of documents. The Claimant produced a bundle marked A1 and the Respondent produced a bundle marked R1. In addition, both the Respondent and the Claimant produced a number of legal authorities and extracts from Harvey on Industrial Relations and Employment Law. The Tribunal heard evidence from the Claimant on oath and he was subject to cross examination.

4 The Claimant took proceedings against Shrewsbury College of Art & Technology in the Shrewsbury Employment Tribunal under case number 290665/99. The liability claim against Shrewsbury College had been determined and the Claimant was proceeding with a remedies hearing on 13 October 2003. During the course of evidence of one of Shrewsbury College's witnesses, Mr Alan Mosley, the Claimant was alerted to a letter that was sent from the Respondent to Shrewsbury College giving information about the Claimant which the Claimant alleges was not only incorrect but also detrimental to him and which he strenuously denied. The Claimant also said that the content of the letter from the Respondent to Shrewsbury College dated 15 January 2001 adversely affected his claim against Shrewsbury College.

5 The Claimant had previously taken proceedings against the Respondent under case number 3204454/00 in the Stratford Employment Tribunal which matter was heard on 22 March 2002 and 2 May 2002. These proceedings related to an Originating Application presented on 7 December 2000 in respect of allegations of race discrimination, both direct and by way of victimisation and unfair dismissal."

5.                  The letter itself appears at EAT bundle page 19. It is on South East Essex College writing paper and dated 15 February 2001. It is addressed to Mr Alan Mosley who at the material time was the Deputy Chief Executive of Shrewsbury College of Arts and Technology. The letter reads as follows:

"Dear Alan,

Dr Amaha Abegaze

Thank you for your letter. It would be helpful to see a copy of the Decision of the Tribunal, to see how information that we can give you could be relevant.

It is, however, the position that Dr Abegaze was employed by the college subject to satisfactory references. He offered referees, who provided standard form references. We wrote to them and received no reply. We carried out further investigations of his career history and ascertained that his job application form to us was misleading in that he had not disclosed certain periods of employment with certain employers despite an express requirement to do so. We accordingly decided to dismiss him.

Yours sincerely,

Gary Sharp

PERSONNEL MANAGER"

The Employment Tribunal's Decision

6.                  In paragraph 6 of its Decision the Employment Tribunal set out what it considered to be the relevant law. It set out section 1(1)(a) and section 2 of the Race Relations Act 1976. Furthermore, it specifically set out section 27(A)(2) of the Race Relations Act 1976. It then referred to section 68(1) and section 68(6) of the same Act. The Tribunal set out the relevant contentions of the parties and referred to four authorities including Rhys-Harper v Relaxion Group plc [2003] IRLR 484.

7.                  The Tribunal's reasoning is set out as follows:

"12 The Tribunal unanimously concluded that the claims for direct race discrimination contrary to Section 1(1) of the Race Relations Act and the claim for victimisation contrary to Section 2(1) of the Race Relations Act were not misconceived or time barred.

13 The Claimant became aware of adverse comments made by the Respondent to Shrewsbury College during the course of proceedings at a remedies hearing on 13 October 2003. As a consequence, the Claimant presented his claim of 12 January 2004 which was within three months of him becoming aware of the act of discrimination that had taken place by the Respondent.

14 Pursuant to Section 68 of the Race Relations Act, an Employment Tribunal shall not consider a complaint under Section 54 unless it is presented to the Tribunal before the end of-

"a) the period of three months beginning when the act complained of was done;"

"(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

15 Although the act complained of related to the letter of 15 January 2001 sent from the Respondent to Shrewsbury College, the Tribunal concluded that it was just and equitable to allow the Claimant to make his claim for race discrimination and victimisation. The Tribunal concluded that the Claimant had presented his claim within three months of becoming aware of the discrimination or potential discrimination at the remedies hearing on 15 October 2003. As he had no knowledge of the alleged discrimination or victimisation prior to 15 October 2003, it was not possible for him to lodge his claim before that date. In these circumstances the Tribunal concluded that it was just and equitable to permit him to make the claim.

16 The Tribunal did not accept the Respondent's contention that the information that was provided to the third party, Shrewsbury College, was not information of the employment relationship. It was clear to the Tribunal that it needed to hear evidence of exactly what information was provided to the third party either orally or in writing before coming to any conclusion on that point.

17 Further, the Tribunal did not accept that the claim was misconceived. The Claimant had an arguable claim that information provided to a third party, namely Shrewsbury College, during the course of proceedings against the third party by the Claimant could amount to less favourable treatment of the Claimant due to race, as compared to a hypothetical comparator. In addition, such information could also amount to victimisation contrary to Section 2 of the Race Relations Act, especially as the Respondent conceded that the Claimant had in making a claim under case number 3204454/00 done a protected act. The Tribunal felt that it required to hear the evidence of what information was provided to Shrewsbury College by the Respondent, when such information was provided and what was said before it could attribute an innocent non-discriminatory reason to the provision of such information. The Tribunal concluded that it was possible that negative detrimental and untruthful information could amount to race discrimination and victimisation in the circumstances alleged by the Claimant and in such circumstances, the Tribunal concluded unanimously that the Claim was not misconceived. Further, the Tribunal concluded that until the Respondent provided an innocent and non-discriminatory explanation for the provision of the information to the third party, the Tribunal could not conclude that the claim was frivolous or vexatious or otherwise unreasonable. Such evidence could only be considered at a hearing of this matter."

The Notice of Appeal

8.                  The Notice of Appeal was amended by another panel of the Employment Appeal Tribunal at the Preliminary Hearing on 22 June 2005. There are three grounds of appeal and they have been supplemented by the Skeleton Argument and oral submissions of Mr Sam Neaman of counsel who appeared for the Appellant. We take each ground of appeal in turn.

Ground One

9.                  The first Ground of Appeal is that the Employment Tribunal was in error when it decided that it was just and equitable to extend time to enable the Claimant's claims for race discrimination to be heard some two years nine months out of time. This submission is founded upon the fact that although the Appellant raised the issue of prejudice before the Tribunal: judgment paragraph 9, the Tribunal (a) failed to consider the issue of prejudice to the Appellant and/or (b) failed anywhere in its judgment to indicate that it had considered the issue of prejudice: Taylor v Dept of Environment, Food & Rural Affairs and Others (EAT/0625/02). Mr Neaman specifically relies upon paragraphs 40-42 of the judgment of HHJ Burke QC. Mr Neaman also relies upon A v R (EAT/0898/02). This is another decision of HHJ Burke QC to the same effect: see paragraphs 11-12. We accept these submissions. In our judgment there is simply no indication whatsoever that the Tribunal considered the issue of prejudice to the Appellant at all. This amounts to an error of law. The normal remedy would be to remit the case for a re-hearing either before the same or a fresh tribunal. However, we turn to consider the other grounds of appeal.

Ground Two

10.              This ground of appeal is that the Employment Tribunal misdirected itself in law by directing itself to section 27(A) of the Race Relations Act when at the date of the alleged act of discrimination section 27(A) was not in force. The relevant parts of the section 27(A) are as follows:

"(1) In this section a "relevant relationship" is a relationship during the course of which, by virtue of any provision referred in section 1(1)(B), taken with section 1(1) or (1A), or (as the case may be) by virtue of section 3A-

(a) an act of discrimination by one party to the relationship (the relevant party) against another party to the relationship, on grounds of race or ethnic or national origins, or

(b) harassment of another party to the relationship by the relevant party is unlawful.

(2) Where a relevant relationship has come to an end it is unlawful for the relevant party-

(a) to discriminate against another party, on grounds of race or ethnic or national origins, by subjecting him to a detriment, or

(b) to subject another party to harassment, where the discrimination or harassment arises out of and is closely connected to that relationship.

(3) In subsection (1) reference to an act of discrimination or harassment which is unlawful includes, in the case of a relationship which has come to an end before 19 July 2003, reference to such an act which would, after that date, be unlawful."

11.              Section 27(A) was brought into force by Regulation 29 of the Race Relations Act 1976 (Amendment) Regulations 2003 [SI 2003 No.1626]. The commencement date was 19 July 2003: Regulation 1(1). There are no transitional provisions for Regulation 29 as there are for some other amendments to the 1976 Act: see Regulation 2.

12.              In our judgment the effect of this is that section 27A(2) of the 1976 Act only bites on an act if discrimination or harassment took place after 19 July 2003 even though the "relevant relationship" (in this case the employment relationship between parties) is terminated before 19 July 2003. We cannot construe the legislation as meaning that it is retrospective in respect of the act of discrimination or harassment. In this case the employment relationship between the parties came to an end on 13 October 2000: EAT bundle page 26. The alleged act of discrimination i.e. the letter referred to earlier was written on or about 15 February 2001. It came to Dr Abegaze's knowledge in the autumn of 2003 during his proceedings against Shrewsbury College of Art and Technology: Employment Tribunal judgment paragraph 4. He commenced proceedings in Stratford Employment Tribunal against South East Essex College on 12 January 2004: EAT bundle page 10. It follows that the Employment Tribunal were in error when they relied upon section 27A of the 1996 Act because that section was not retrospective so far as any alleged act of discrimination or harassment i.e. the writing of the letter of 15 February 2001 is concerned. The writing of that letter was not unlawful at that date and it did not become unlawful until after 19 July 2003 even though the employment relationship had ended before that date.

Ground Three

13.              Ground Three relates to the correct application of the speeches of members of the House of Lords in Rhys-Harper v Relaxion Group plc [2003] ICR 867. The principal judgment is given by Lord Nicholls and we refer in particular to paragraphs 35-45 of his speech. It is only necessary to cite three paragraphs here:

"37 To my mind the natural and proper interpretation of section 6(2) of the Sex Discrimination Act 1975 and the corresponding provisions in the other two Acts in this context is that once two persons enter into the relationship of employer and employee, the employee is intended to be protected against discrimination by the employer in respect of all the benefits arising from that relationship. The statutory provisions are concerned with the matter in which the employer conducts himself, viz – a – viz the employee, with regard to all the benefits arising from his employment whether as a matter of strict legal entitlement or not. This being the purpose, it would make no sense to draw an arbitrary line at the precise moment when the contract of employment ends, protecting the employee against discrimination in respect of all benefits up to that point but in respect to none thereafter.

……..

44. The preferable approach is to recognize that in each of the relevant statutory provisions the employment relationship is the feature which triggers the employer's obligation not to discriminate in the stated respect. This is the connection between two persons which Parliament has identified as requisite for these purposes. Once triggered, the obligation not to discriminate applies to all the incidents of the employment relationship, whenever precisely they arise. For the reasons already given, this obligation cannot sensibly be regarded as confined to the precise duration of the period of employment if there are incidents of the employment which fall to be dealt with after the employment has ended. Some benefits accrued during the period of employment, some afterwards. For the purposes of discrimination, there is no rational ground for distinguishing the one from the other. They all arise equally from the employee's employment.

45. To be an "incident" of the employment relationship for this purpose the benefit in question must arise between employer or former employer as such. A reference is a prime example. Further, save perhaps in exceptional circumstances which it is difficult to envisage, failure to provide a non-contractual benefit will not constitute a "detriment", or discrimination in an opportunity to receive a "benefit", within the meaning of the anti-discrimination legislation unless the non-contractual benefit in question is one which normally is provided, or would be provided, to others in comparable circumstances. This is so with regard to current employees. It is equally so with former employees. But I stress that this is not to say that an employer's practice regarding current employees is to be treated as equally applicable to former employees. This is emphatically not so. The two situations are not comparable. What is comparable is the way the employer treats the claimant former employee and the normal way he treats or would treat other former employees in similar circumstances."

14.              It is also necessary to refer to the speeches of Lord Hope at paragraph 114, Lord Scott at paragraph 197, Lord Rodger at paragraph 211 and Lord Hobhouse at paragraph 142.

15.              Basing himself upon these passages but particularly the paragraphs of Lord Nicholls' speech set out above, Mr Neaman made the following submissions:

(1) The letter of 15 February 2001 cannot possibly be said to be a "benefit" as defined by Lord Nicholls;

(2) It was not a normal non-contractual benefit i.e. one which was normally provided to others in comparable circumstances, in this case former employees;

(3) The letter was not requested by Dr Abegaze. It was therefore not providing him with anything;

(4) The letter was provided to Shrewsbury College of Art and Technology. It was not provided to another employee or ex-employee in comparable circumstances;

(5) The letter was provided to assist or potentially assist Shrewsbury College of Art and Technology in its employment tribunal proceedings brought by Dr Abegaze against it. As such it was provided in confidence. There was a public policy at issue here in that there should be protection for such letters.

16.              Without going into the merits of the sixth submission we accept Mr Neaman's submissions that looking at the letter carefully we cannot see any possible way in which the Employment Tribunal could have held that the letter of 15 February 2001 was within the scope of the speeches of the House of Lords in Rhys-Harper v Relaxion Group plc. It was not a matter that required further evidence as the Tribunal said: Judgment paragraph 60. It was clear on the face of the document and the facts found by the Employment Tribunal.

Conclusion

17.              For these reasons we are of the view that the appeal succeeds on all three points. The second and third points inevitably mean that we can substitute our own opinion for that of the Employment Tribunal which we do. The Employment Tribunal had no jurisdiction to hear this claim and there is therefore no need for this case to be remitted to the same or a different employment tribunal. The appeal is allowed and the claim is dismissed.