Barclays Bank Plc v Kapur
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE BINGHAM,LORD JUSTICE MANN |
| Judgment Date | 29 June 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0629-6 |
| Docket Number | 89/0641 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 1989 |
[1989] EWCA Civ J0629-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CIVIL DIVISION
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WOOD)
Royal Courts of Justice,
Lord Justice Neill
Lord Justice Bingham
and
Lord Justice Mann
89/0641
EAT/396/88DB61/89
MR. IAN MACDONALD QC and MISS J. McNEILL (instructed by Messrs. Lawford & Co., Richmond, Surrey) appeared on behalf of the Appellants (Respondents)
MR. T.R.A. MORISON QC and MR. N. UNDERHILL (instructed by Messrs. Lovell White Durrant, London, EC1) appeared on behalf of the Respondents (Appellants).
This is an appeal by leave of the Employment Appeal Tribunal against the order of the Employment Appeal Tribunal dated 21st December 1988 whereby it was ordered that the decision of the industrial tribunal dated 25th May 1988 should be set aside and it was declared that the applications of the five applicants filed on various dates in October 1987 should be declared to be out of time so that the industrial tribunal had no jurisdiction to hear the applications.
Each of the applicants, who are the present appellants, is or has been an employee of Barclays Bank plc, the present respondent, whom I shall call "the bank".
The appeal is concerned with alleged racial discrimination. The alleged discrimination relates to the calculation of the pensions payable to the applicants on retirement. Two of the five applicants retired in August 1987. At the time of the hearing before the industrial tribunal the other three applicants were still in employment.
On behalf of the bank the alleged discrimination is denied. For the purpose of this preliminary issue, however, it is argued that even if any discrimination did take place it occurred many years ago between 1971 and 1974 and accordingly the industrial tribunal has no jurisdiction to hear the applications because of the three-month time limit in section 68(1) of the Race Relations Act 1976 (the 1976 Act). That subsection provides:
"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."
It is common ground that this is not a case where it would be appropriate to ask the tribunal to extend the time limit in accordance with the discretion vested in the tribunal under section 68(6) of the 1976 Act.
The question for consideration therefore in the case of each appellant is: "When was the act complained of done?"
FACTS
The facts relating to each of the individual applicants vary in a number of details but they follow a consistent pattern.
In the period around 1970 a policy of "Africanisation" came into force in a number of the former colonial territories of East Africa. Persons of Asian origin were then faced with the choice of either adopting full citizenship of these countries and giving up any rights they might have to come to the United Kingdom or leaving the East African countries altogether. At the time many people of Asian origin, including the five applicants, worked in banks. Some 300 people in this category came to the United Kingdom in the early 1970s and became employees of the bank in various parts of the country.
I can turn to the circumstances relating to the individual applicants.
MR. Victor De Souza
In 1951 Mr. De Souza, who is of Indian origin, commenced employment with Barclays DCO in Kenya. Barclays DCO later became Barclays International plc and this company subsequently amalgamated with the respondent bank.
In December 1969 Mr. De Souza was told that owing to the provisions of the Kenyan Immigration Act 1967 his work permit would expire in May 1970. His employment with Barclays DCO came to an end on 17th May 1970. Mr. De Souza decided not to take up Kenyan citizenship and received an ex gratia payment in lieu of any pension or other severance pay because at that time he had not reached the normal retirement age.
In 1970 there were staff shortages in the United Kingdom for bank employees and the bank (then Barclays Bank Limited) offered employment in the United Kingdom to a number of dismissed Kenyan employees, including Mr. De Souza.
The terms and conditions relating to this employment were set out in a document headed "Terms and Conditions of Service in Barclays Bank Limited in The United Kingdom".
This document (Rl/25) provided, so far as is material, as follows:
"The following are the general terms and conditions of service which would be applicable to any of the Asian non-citizen staff of Barclays Bank D.C.O. in Kenya who may be offered employment by Barclays Bank Limited in the United Kingdom.
…..
8. Any Pension which will be granted by Barclays Bank Limited will only apply to the number of completed years of service from the date of joining Barclays Bank Limited, and will not take into account any previous years of service with Barclays Bank D.C.O. Before accepted for employment in the United Kingdom, you will be asked to sign a letter of disclaimer acknowledging this fact."
Mr. De Souza signed a copy of the Terms and Conditions.
On 9th October 1970 he signed a further document in these terms (Rl/35):
"IN CONSIDERATION of your agreeing to employ me on your permanent staff whereby I become a member of the Barclays Bank Limited Pension Fund I HEREBY AGREE that notwithstanding the provisions of the Rules of that Fund my service with Barclays Bank D.C.O. will be disregarded for all pension purposes including ascertaining entitlement and pensionable age and the calculation of the amount of any pension and I HEREBY WAIVE AND SURRENDER any right to have my years of service with Barclays Bank D.C.O. computed for Pension Fund purposes as years of service with you."
Mr. Harnek Singh Dahele
The circumstances relating to Mr. Dahele are similar to those of Mr. De Souza.
Mr. Dahele was born in August 1932. He joined Barclays Bank DCO in Kenya in 1950 and ceased to be employed by that company in November 1970. The terms and conditions of employment offered to Mr. Dahele by Barclays Bank Limited were the same as those offered to Mr. De Souza. On 11th January 1971 he signed a document (Rl/115) waiving and surrendering any right to have his years of service with Barclays Bank DCO computed for Pension Fund purposes as years of service with Barclays Bank Limited.
Mr. Ambalal Narambhai Patel
Mr. Patel was born in August 1927. He joined Barclays Bank DCO in Kenya in 1951 and left in January 1971. He was offered the same terms and conditions of service as offered to Mr. De Souza and Mr. Dahele. On 29th March 1971 he signed a document (Rl/81) waiving and surrendering any right to have his years of service with Barclays Bank DCO computed for Pension Fund purposes as years of service with Barclays Bank Limited.
Mr. Krishan Lal Kapur
The case of Mr. Kapur is slightly different.
He worked for Barclays bank DCO in Tanzania from 1952 until 1967, having been born in August 1927. This bank was nationalised by the Tanzanian Government and he continued to work for the nationalised bank, which became the National Bank of Commerce, until 1973. As a result of the policy of Africanisation in Tanzania, however, he left Tanzania and came to the United Kingdom in August 1974. On leaving Barclays Bank DCO in Tanzania he was granted a deferred pension.
On 20th September 1974 Barclay Bank International Limited offered Mr. Kapur employment in the United Kingdom. The offer letter (Rl/8) included this paragraph:
"We would stress that this engagement is regarded as a new contract of service and any pension which will be granted by Barclays Bank International Limited will only apply to the number of completed years and months of service from the date of joining our service in the United Kingdom, and will not take into account any previous years or months of service with Barclays Bank D.C.O. in Tanzania (formerly Tanganyika) or its successor in Tanzania the National Bank of Commerce." On 23rd September 1974 Mr. Kapur accepted this offer.
Mr. Haribhai Chimanlal Patel
The case of Mr. H.C. Patel is different in an important particular from the cases of the other four applicants because though he worked for a bank in Kenya between 1954 and 1970 this bank (the Standard Bank) is not in any way associated with Barclays Bank. At this stage we are not concerned with the merits of any of the claims, but I draw attention to this difference because it would appear from the various pension fund documents which we have seen that the trustees of the pension funds may not in any event have power to take into account, for the calculation of a pension, years of service with a bank which was not in some way associated with Barclays Bank.
It remains possible, of course, that there are other pension documents which would throw further light on this point but the matter requires consideration before Mr. H.C. Patel's application proceeds further.
Mr. H.C. Patel was born in 1936. He joined the Standard Bank in Kenya in November 1954 and left their employment in July 1970. He joined Barclays Bank International Limited in London in January 1971. He was not invited to sign any disclaimer.
The Nature of the alleged Discrimination
The nature of the discrimination alleged appears sufficiently clearly from the originating application lodged by Mr. Kapur on 5th October 1987. This application contains the following paragraphs (A2/16):
"5. I retired from the bank on 13 August 1987. Prior to my retirement I corresponded...
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