Mary Hounga v Adenike Allen (née Aboyade-Cole) and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Sir Scott Baker,Lord Justice Longmore |
| Judgment Date | 15 May 2012 |
| Neutral Citation | [2012] EWCA Civ 609 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/1100 |
| Date | 15 May 2012 |
[2012] EWCA Civ 609
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Silber, Mr K. Edmondson JP and Mrs M.V. McArthur BA FCIPD
UKEAT/0326 to 03229/10/LA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Rimer
and
Sir Scott Baker
Case No: A2/2011/1100
David Reade QC (instructed by the North Kensington Law Centre) for the Appellant
Laura Prince (instructed by Crowther Solicitors) for the First Respondent, Adenike Allen
The Second Respondent, Kunle Allen, was not represented
Hearing date: 13 February 2012
Introduction
An appeal and cross-appeal in employment proceedings are before us. The claimant/appellant is Mary Hounga. The first respondent, and cross-appellant, is Adenike Allen. Her husband, Kunle Allen, is also named as a respondent but took no part in the appeal and was not represented. Ms Hounga was represented by David Reade QC. Mrs Allen was represented by Laura Prince.
Ms Hounga was employed by the Allens from 28 January 2007 until her dismissal on 17 July 2008. Her duties were in the nature of those of an au pair, the Allens having three young children. Ms Hounga is a Nigerian national and Mrs Allen has dual Nigerian and British nationality. Following her dismissal, Ms Hounga wished to bring tribunal claims against the Allens for a variety of claims including for unfair dismissal, breach of contract, unlawful deductions from her wages and holiday pay; and, more relevantly for present purposes, for compensation for dismissal on racially discriminatory grounds ('dismissal discrimination') and for racially discriminatory treatment during the currency of her employment ('non-dismissal discrimination'). The time for bringing her claims began to run against her on 17 July 2008. She faced a practical problem in doing so, however, as although she had lived with the Allens for 18 months, she did not know where that was for the purpose of serving a claim upon them or otherwise contacting them.
Despite that difficulty, the North London Kensington Law Centre presented an ET1 on her behalf to the London Central Employment Tribunal on 22 December 2008. The tribunal, however, rejected it of its own motion on the grounds that (i) Ms Hounga had not raised a grievance with the Allens, which under the law then in force was a condition of the bringing of certain of her claims, in particular the non-dismissal discrimination claim; and (ii) no address for service on the Allens was provided. The Law Centre then made further enquiries as to the Allens' address, which it ascertained by about 11 March 2009. Ms Hounga's ET1 was re-submitted on 18 March 2009, following which the Allens were served and the claims were proceeded with.
The claims were heard by the London Central Employment Tribunal over three days in July 2009 before Employment Judge Warren, Ms C. McLellan and Ms H. Lapierre. Ms Hounga was represented by Michael Reed from the Free Representation Unit. The Allens were represented by their solicitor. By its judgment, sent with written reasons to the parties on 6 August 2009, the tribunal decided as follows. First, it held that Ms Hounga's contract of employment with the Allens was tainted with illegality as Ms Hounga was, as she knew, not allowed to work in this jurisdiction. In consequence, the tribunal dismissed on public policy grounds her claims for unfair dismissal, breach of contract, unpaid wages and holiday pay. That decision is not in question before us. Second, the tribunal nevertheless held that Ms Hounga was in employment with the Allens for the purposes of the Race Relations Act 1976 and that her dismissal was an act of unlawful race discrimination (the dismissal discrimination) for which she was entitled to compensation. Third, the tribunal held that as her non-dismissal discrimination claim had not been preceded by the raising of a grievance, the tribunal had no jurisdiction to hear it and that claim was also dismissed. The tribunal's second and third decisions are both in question before us.
The tribunal's dismissal of the non-dismissal discrimination claim was the subject of an application to the tribunal by Ms Hounga (again represented by Mr Reed) for a review. That application was heard on 22 February 2010. The tribunal rejected it for reasons sent to the parties on 16 April 2010. In the meantime, on 9 April 2010 the matter had returned to the tribunal for a remedy hearing on Ms Hounga's successful claim for dismissal discrimination. For reasons also sent to the parties on 16 April 2010, the tribunal assessed her damages, including interest, at £6,186.90. That was by way of recompense for injury to feelings: it included no compensation for any lost work opportunity since Ms Hounga had no right to work here.
Ms Hounga and Mrs Allen appealed to the Employment Appeal Tribunal ('the EAT') against the tribunal's holdings that were respectively adverse to them. The outcome, so far as now relevant and as explained in the EAT's reserved judgment delivered on 31 March 2011 (Silber J, Mr K. Edmondson JP and Mrs M.V. McArthur BA FCIPD), was that the EAT upheld (i) the tribunal's dismissal of Ms Hounga's non-dismissal discrimination claim; and (ii) the tribunal's decision on her dismissal discrimination claim. Ms Hounga's appeal to us is against the EAT's holding (i). Mrs Allen's cross-appeal is against its holding (ii). Ms Hounga's appeal was the first matter argued before us and so I shall deal with it first. I preface my discussion of it with the observation that it was Ms Prince's submission that, were we to uphold Mrs Allen's cross-appeal, any formal success by Ms Hounga on her appeal would in practice take her nowhere. That is because, even if both tribunals below were in error in the manner in which they disposed of the grievance issue, success on the cross-appeal must inevitably mean that Ms Hounga can have no prospect of success on the substance of her non-dismissal discrimination claim. It would follow, said Ms Prince, that all Ms Hounga's proceedings ought to be brought to a final full stop by this court.
Ms Hounga's appeal
A. The legislative provisions and the decisions of the tribunals below
This appeal turns on the, now repealed, dispute resolution provisions in section 32 of, and Schedule 2 to the Employment Act 2002 and in the regulations made under section 32. The purpose of such provisions was to encourage the resolution of disputes outside the tribunal process. Section 32(1) provides that '[t]his section applies to the jurisdictions listed in Schedule 4', and Ms Hounga's non-dismissal discrimination claim was of a nature so listed, the relevant procedures applying to most employment tribunal claims not related to a dismissal or a disciplinary action. Section 32 then provides, so far as material:
'(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if –
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and
(b) the requirement has not been complied with.
(3) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if –
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and
(b) less than 28 days have passed since the day on which the requirement was complied with….'
The material parts of Part 2 of Schedule 2, headed 'Grievance Procedures', are as follows:
'Chapter 1
STANDARD PROCEDURE
6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.
7. (1) The employer must invite the employee to attend a meeting to discuss the grievance.
(2) The meeting must not take place unless –
(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and
(b) the employer has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against his decision if he is not satisfied with it.
8. (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the appeal meeting, the employer must inform the employee of his final decision.
Chapter 2
MODIFIED PROCEDURE
9. The employee must –
(a) set out in writing –
(i) the grievance, and
(ii) the basis for it, and
(b) send the statement or a copy of it to the employer.
10. The employer must set out his response in writing and send the statement or a copy of it to the employee.
Part 3
GENERAL REQUIREMENTS
Introductory
11. The following requirements apply to each of the procedures set out above (so far as applicable).
Timetable
12. Each step and action under the procedure must be taken without unreasonable delay….'
Schedule 2 does not explain when or how the modified rather than the standard procedure may be used. Section 32(7) of the 2002 Act, however, empowered the Secretary of State to make regulations about (inter alia) the application of those procedures. The regulations so made are The Employment Act 2002 (Dispute...
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