Barclays Bank Plc v Kapur

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Bridge of Harwich,Lord Templeman,Lord Griffiths,Lord Ackner,Lord Lowry
Judgment Date24 Jan 1991
Judgment citation (vLex)[1991] UKHL J0124-1

[1991] UKHL J0124-1

House of Lords

Lord Bridge of Harwich

Lord Templeman

Lord Griffiths

Lord Ackner

Lord Lowry

Barclays Bank plc
(Appellants)
and
Kapur and Others
(Respondents)
Lord Bridge of Harwich

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Griffiths. I agree with it and for the reasons he gives I would dismiss the appeal.

Lord Templeman

My Lords,

2

For the reasons given by my noble and learned friend, Lord Griffiths, I too would dismiss this appeal.

Lord Griffiths

My Lords,

3

The respondents are Asians of East African origin who claim to have been discriminated against by Barclays Bank Plc. on racial grounds because they were employed by the bank on less favourable terms as to pension rights than their European comparators. Your Lordships are not concerned with the merits of their complaints which may or may not be well founded. This appeal is solely concerned with the question of whether or not an industrial tribunal has jurisdiction to entertain their complaints.

4

The facts

5

Prior to the adoption of "Africanisation" policies, the respondents were bank employees in Kenya and Tanzania. At varying dates in the early 1970s after their work permits had been revoked in East Africa, the respondents came to the United Kingdom and obtained employment with Barclays Bank Ltd. or with Barclays Bank International Ltd.; these companies have since been merged to form Barclays Bank Plc., the present appellant.

6

The second, third and fifth respondents had all been employed by Barclays Bank D.C.O. in Kenya and accepted employment with Barclays Bank Ltd. in the United Kingdom upon terms that their service with Barclays Bank D.C.O. in Kenya should not count towards their pension entitlement with Barclays Bank Ltd.

7

The first respondent had been employed by Barclays Bank D.C.O. in Tanzania and was employed by Barclays Bank International Ltd., upon terms that his service in Tanzania would not count towards his pension entitlement with Barclays Bank International Ltd.

8

The fourth respondent who had been employed by the Standard Bank in Kenya was likewise employed by Barclays Bank International Ltd. upon terms that his service with the Standard Bank would not count towards his pension.

9

The respondents complain that they have been discriminated against on racial grounds because they maintain that employees of European origin who joined Barclays Bank at about the same time were permitted to count their years of service with different banks towards the computation of their pensions.

10

It should be said that on the termination of their employment in East Africa each of the respondents either preserved his accrued pension rights under the applicable local scheme or received a sum to compensate him for the loss of the chance to acquire such rights; but the respondents say that such rights or compensation were not as valuable as a term in their contracts providing that their service in East Africa should count towards the computation of their pensions.

11

The facts relating to each respondent are to be found more fully set out in the judgment of Neill L.J. [1989] I.C.R. 753, 761-763 but the foregoing outline is sufficient to set the stage for the point that your Lordships have to decide in this appeal. The respondents rely upon sections 1(1) and 4(2) of the Race Relations Act 1976 which provide:

"1(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

( a) on racial grounds he treats that other less favourably than he treats or would treat other persons; …

4(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britian, to discriminate against that employee -

( a) in the terms of employment which he affords him; or ( b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or ( c) by dismissing him, or subjecting him to any other detriment."

12

The respondents say that the terms of employment afforded to them by Barclays are less favourable than those afforded to Europeans because their previous service does not count towards their pension (subsection (2)( a)) or, alternatively, that the way in which they are afforded access to the benefits of the pension fund is less favourable than those afforded to their European comparators (subsection (2)( b)) or, in the further alternative, that they have been subjected to a detriment in not receiving such favourable pension treatment (subsection (2)( c)).

13

When the respondents presented their complaints to the industrial tribunal pursuant to section 54 of the Act of 1976, Barclays took the point that the industrial tribunal had no jurisdiction to entertain the complaints. Barclays submitted that the discrimination of which the respondents complained, which was the refusal to allow their previous bank service to count towards their pensions, was a "deliberate omission" within the meaning of section 68(7)( c) and that the complaints had accordingly to be presented within three months of the date upon which it was decided upon, namely, at the time at which the respondents entered the employment of Barclays in the United Kingdom, and Barclays argued that the complaints were therefore time barred. But if Barclays' submission is well founded it means that the discrimination occurred years before the Act of 1976 came into force and as the Act is not retrospective it follows that, on this more fundamental ground, the industrial tribunal would have had no jurisdiction to entertain the complaint.

14

The time within which proceedings must be brought under section 54 is governed by section 68, the relevant parts of which provide:

"(1) 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….

(6) A court or tribunal may nevertheless consider any such complaint, claim or...

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