Lambeth LBC v D'Souza (No.2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE SCHIEMANN
Judgment Date25 May 2001
Neutral Citation[2001] EWCA Civ 794
Docket NumberCase No: CA/2000/2600

[2001] EWCA Civ 794

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Schiemann

Lord Justice Robert Walker and

Mr. Justice Lloyd

Case No: CA/2000/2600

Donald D'souza
Appellant
and
London Borough Of Lambeth
Respondent

Donald D'SOUZA in person

Jeffrey BURKE Q.C. and Keith BRYANT (instructed by Legal Department of London Borough of Lambeth for the Respondent)

LORD JUSTICE SCHIEMANN

This is the judgment of the Court.

1

Mr D'Souza was dismissed by the London Borough of Lambeth ("the Council") in 1990. He commenced proceedings alleging unfair dismissal and racial discrimination. The Council admitted unfair dismissal and paid £12,565 to him including the maximum compensatory award, a basic award and a sum in lieu of notice. An Employment Tribunal in 1992 made an order under what is now s. 114 of the Employment Rights Act 1996 that he be reinstated. Moreover an award of compensation was made to him under the Race Relations Act 1976.

2

However, the Council claimed in a letter of March 1993 that it was not practicable so to reinstate him. He disputed this but this point was resolved against him by another Employment Tribunal in 1995. The Tribunal went on to make a compensatory award for unfair dismissal. He was not, however, prepared to put this episode behind him and start life afresh. He wished for further relief in respect of what had happened to him.

3

So in July 1995 Mr D'Souza started 2 sets of proceedings in respect of the decision not to reinstate him. It is those proceedings with which we are concerned. His case in essence was that the decision not to reinstate him had been caused by continuing discrimination and victimisation.

4

Mr D'Souza has lost the present proceedings on a preliminary point – both the Employment Tribunal and the Employment Appeal Tribunal have held that they had no jurisdiction to consider his complaint. The issue before us is whether they were right to do so. They were clearly reluctant to come to this conclusion but held that they were bound by a previous decision of this court : The Post Office v Adekeye [1997] I.C.R.110. That was a decision which this court at the time regarded as unsatisfactory but inescapable in the light of the wording of section 4 of the Race Relations Act. It is, however, fair to point out that, despite that expression of dissatisfaction by this court, Parliament in passing the Race Relations (Amendment) Act 2000 has not seen fit to alter section 4 of the earlier Act in any relevant respect. Mr D'Souza nevertheless submits that Adekeye should not be followed and has indicated that, if he loses before us, he will seek permission to appeal to the House of Lords so that the point may be reconsidered afresh. However, he also argues that we are not bound by that earlier decision.

5

The preliminary point in essence is this. The Race Relations Act makes provision for compensation for certain victims of certain types of discrimination. Amongst the compensatable victims are those seeking employment and those in employment. It was held in Adekeye that persons seeking to be restored to their former employment by their original employers after having been dismissed fall into neither category and therefore discrimination against them is not a matter for which the Act has made provision. We can fully understand Mr D'Souza's puzzlement that this should be the law.

6

We propose to set out the relevant provisions of the Race Relations Act, to consider what Adekeye decided, whether this on its face concludes the case against Mr D'Souza as the Tribunals below have found, and then finally to consider whether any subsequent enactment or decision entitles us to depart from what was decided in Adekeye. We can indicate now that we consider that we are bound by the decision in Adekeye and that the Tribunals below were right to conclude that it was fatal to Mr D'Souza's case.

7

The Race Relations Act 1976 Section 4

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another (a) in the arrangements he makes for the purpose of determining who should be offered the employment; or (b) in the terms on which he offers him that employment; or (c) by refusing or deliberately omitting to offer him that employment.

(2) It is unlawful for a person, in the case of an employee employed by him at an establishment in Great Britain, to discriminate against that employee (a) in the terms of the 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".

Adekeye

8

Ms Adekeye had been dismissed on 8 June 1991. She utilised the internal appeal procedures but her appeal was dismissed on 15 August 1991. She made her complaint to the Industrial Tribunal on 25 September 1991. The issue in the case was whether Ms Adekeye's complaint of racial discrimination in the course of the handling of her internal appeal could be heard when at the material time she was no longer an employee. This Court, upholding the Employment Appeal Tribunal, held that (a) there was no jurisdiction to hear her claim under s.4(2) and (b) during the period of the internal appeal she had no standing to complain under s.4(1).

9

As to her claim under s.4(2) Peter Gibson L.J. said this at page 118:

"I accept the submission of Mr. Greening for the Post Office that giving the words "in the case of a person employed by him" their ordinary and natural meaning in their context, those words mean, and can only mean, "in the case of a person who is employed by him". I conclude that the appeal tribunal was right to hold that section 4 (2) of the Race Relations Act 1976 protects only those whose employment continues at the time of the act of discrimination.

I turn to Mr. Allen's alternative submission on the meaning of "dismissing" in section 4 (2) (c) on the footing that "employee" means "who is employed". Mr. Allen argued that the internal appeal is an integral part of the dismissal process and that until the appeal was concluded adversely to the employee, that process continued; the rejection of the applicant's appeal was therefore to be treated as her dismissal at a time when she was employed. He characterised the dismissal on 8 June 1991 as only a condition dismissal. In my judgment this is an impossible argument."

10

Hirst and Pill LJJ agreed with him.

11

As to her claim under s.4(1) Peter Gibson L.J. said this at page 118:

"Mr. Allen submitted that there was no reason to limit the application of section 4 (1) to first applications for employment, but the section should be construed in an inclusive way so that the decision of an employee to appeal is treated as in fact a request to have his contract retained in the fullest sense. He said that such a request can properly be characterised as an application for employment and a decision to refuse to allow the appeal can be characterised as a decision refusing or deliberately omitting to offer him that employment. In my judgment so to construe the language of section 4 (1) would not accord with the ordinary meaning of the language of the subsection. It is unrealistic to regard a dismissed employee seeking reinstatement by an appeal against dismissal as seeking an offer of employment. On the appeal the appellant is not seeking an offer which can be accepted or refused; the appellant is seeking the reversal of a decision to dismiss. Further, in my judgment the sidenote to section 4 accurately reflects the substance of subsections (1) and (2): subsection (1) relates to applicants seeking the offer of a job, while subsection (2) applies to those who are employed. This argument therefore also fails.

Finally, Mr. Allen advanced another elaborate argument but based on Community law as well as the Sex Discrimination Act 1975. He drew our attention to the Equal Treatment Directive (76/207/E.E.C.) (O.J. L 1976 L. 39, p. 40) by article 5 (1) of which:

"Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex".

He submitted that this imposed an...

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