Komeng v Sandwell Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill |
| Judgment Date | 30 April 2013 |
| Neutral Citation | [2013] EWCA Civ 695 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2013 |
| Docket Number | Case No: A2/2012/2741 |
[2013] EWCA Civ 695
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE JEFFREY BURKE QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Underhill
Case No: A2/2012/2741
The Applicant appeared in person
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal following a refusal on the papers by Rimer LJ. The applicant appears in person and has put his arguments, if I may say so, very well.
The facts, very shortly, are these. The applicant, who is of African ethnic origin, came to this country from Ghana on a student visa. From 2006 he worked for the respondent part-time as a healthcare assistant. The terms of his visa permitted him to work up to twenty hours per week. From 2008 he had a post-study work permit, which did not restrict his working hours so long as he had leave to remain, but the leave to remain itself was due to expire in August 2010. From July 2010 the respondent made checks on a number of occasions with the UK Border Agency (so-called "ECS checks") in order to confirm that the applicant still had leave to remain and was entitled to work. Overall, those checks confirmed his right to work (although there was a confusion caused when in October 2010 the Agency wrongly said that he was subject to a twenty-hour per week restriction, although that was eventually clarified). The applicant was, however, upset by the repeated checking. He brought a grievance which was rejected.
Following the rejection of his grievance the applicant brought proceedings in the Employment Tribunal. The claims there made are usefully summarised in the decision of the Employment Appeal Tribunal as follows:
"The claim consisted of three categories of complaints of direct discrimination, those being (1) the making of the ECS checks between August 2010 and early 2011; (2) the reduction of the Claimant's working hours in October and November 2010 as a result of misleading information given by the Border Agency; and (3) the rejection of the Claimant's grievance. The repeated ECS checks were also relied upon as harassment, and the behaviour which we have outlined was relied upon as victimisation, the protected act being the bringing of the original claim in 2009."
That reference to a claim in 2009 was to an earlier claim of racial discrimination. Its only relevance for present purposes is that it constituted a protected act.
The Employment Tribunal rejected those claims. The applicant appealed to the Employment Appeal Tribunal, and at a preliminary hearing on 3 October 2012 chaired by HH Jeffrey Burke QC it was held that the appeal had no reasonable prospect of success and it was dismissed.
The applicant advances five grounds of appeal which I will take in turn, though they overlap a fair amount. In each ground he refers to alleged errors of law by the Employment Appeal Tribunal: but of course, as he appreciates, we are ultimately concerned with the decision of the Employment Tribunal.
Ground 1 reads:
"The Employment Appeal Tribunal failed to identify the correct comparator, 'but for' test should have been applied."
The point here is usefully summarised by the EAT as follows:
"The claimant did not rely upon any actual comparator; he relied on a hypothetical comparator that he put forward as a white British employee who failed to provide to his employer a relevant document such as a national insurance number. The Tribunal held at paragraph 41 that that was erroneous and that the correct hypothetical comparator was a foreign national immigrant worker who was not British or a member of the European Union and was not a black African and had to prove his right to remain and work in the United Kingdom."
The EAT held that the applicant's submission as to the identity of the hypothetical comparator was contrary to the decision of this court in Dhatt v McDonald's Hamburgers Limited [1991] IRLR 130 and that it was bound by that decision. What Dhatt holds is that for an employer to require proof of immigration status from a foreign national for the purpose of establishing a right to work lawfully in this country is not discrimination on the grounds of nationality. The reasoning of the Court of Appeal does not depend on justification; nor does it depend on the separate statutory defence based on a legal requirement to act in the manner complained of. Rather, what the Court of Appeal found is that the fact that an employee is subject to immigration restrictions on his right to work means that the relevant circumstances in his case are different. Neill LJ said this at paragraph 31:
"It is true that there is no express obligation imposed by statute on an employer to ensure that...
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