Post Office v Adekeye
| Jurisdiction | England & Wales |
| Judge | Peter Gibson L.J.,PILL LJ,HIRST L.J. |
| Judgment Date | 13 November 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1113-3 |
| Docket Number | EATRF 95/1302/B |
| Court | Court of Appeal (Civil Division) |
| Date | 13 November 1996 |
[1996] EWCA Civ J1113-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Hirst
Lord Justice Peter Gibson
Lord Justice Pill
EATRF 95/1302/B
MR. R. ALLEN Q.C. and MR. T. KIBLING (Instructed by Messrs Anthony Gold Lerman & Muirhead, London, SE1) appeared on behalf of the Appellant
MR. R. GREENING (Instructed by Catherine Churchard, Solicitor to the Post Office, Croydon, CR9) appeared on behalf of the Respondent
This is an appeal by Omolara Adekeye from the decision of the E.A.T. on 15 February 1995. By that decision the E.A.T. allowed an appeal from the decision of an industrial tribunal which held that it had jurisdiction to hear the complaint of racial discrimination brought by the Appellant against the Post Office, by whom she had been employed. The Appellant appeals with the leave of Waite L.J.
Before I relate the facts, it is convenient to refer to the main statutory provisions on which this appeal turns.
By s.1 Race Relations Act 1976:
"(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 that he treats or would treat other persons …."
Part II of the Act deals with discrimination in the employment field. S.4 bears the sidenote "Discrimination against applicants and employees" and one sees in subsections (1) and (2) that these two categories are dealt with separately:
"(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 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 a person 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."
In s.78(1) "employment" is defined as meaning, so far as relevant, "employment under a contract of service". S.54 allows a complainant to present a complaint of racial discrimination to an industrial tribunal, but by s.68(1) the tribunal is not to consider such a complaint unless it is presented to the tribunal before the end of 3 months beginning when the act complained of was done. By s.68(6) a court or tribunal can nevertheless consider any complaint which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so.
The Appellant was employed as a customer care officer by the Post Office from 12 February 1990 to 8 June 1991 when she was summarily dismissed for misconduct. She utilised the internal appeal procedures of the Post Office to appeal against her dismissal, but after an appeal hearing on 6 August 1991 her appeal was dismissed on 15 August 1991. That decision in writing was received by her on 17 August 1991. Having been employed for less than two years she could not bring a complaint of unfair dismissal under the Employment Protection (Consolidation) Act 1978. However she applied to an industrial tribunal on 25 September 1991, complaining of "unfair dismissal (racial harassment)", saying in amplification that she felt that she had been discriminated against as she had been treated differently from other workers and had been sacked as a result. She sought compensation. Her complaint has throughout been treated as one of racial discrimination by her employer. On 9 March 1992 the tribunal at a preliminary hearing considered the question whether there was jurisdiction to hear her complaint. The tribunal held that as the effective date of termination of her employment was more than 3 months before the application to the tribunal, she was out of time and it would not be just and equitable to consider her complaint.
She appealed to the E.A.T., contending that the act complained of by her included the determination of the appeal on 15 August 1991. The E.A.T. decided that the tribunal below had confused the effective date of termination, which would be relevant to a complaint of unfair dismissal, with the date of the act complained of, which was relevant for the purposes of s.68(1), and that that act included the determination of her appeal; accordingly the E.A.T. held that her claim was not out of time. It allowed the appeal and remitted the case to the tribunal for the substance of her complaint to be determined. May J. in giving the judgment of the E.A.T. said that the Appellant was complaining that the rejection of her internal appeal subjected her to detriment within s.4(2)(c).
Both parties at that stage appear to have assumed that the Appellant was entitled to bring her claim under that provision. The Post Office then took the point that she was not entitled to complain under s.4(2) because she was not an employee at the time of the act complained of. There was a preliminary hearing of that issue on 5 April 1994 at which the Appellant did not appear and was not represented. The tribunal in its decision referred to the Post Office's argument that the Appellant was no longer an employee at the relevant time, but while implicitly, although not expressly, accepting the correctness of that argument, of its own motion it took a new point. That was that it had jurisdiction to hear the complaint under s.4(1)(c). It decided the issue on that ground, saying:
"To interpret Section 4(1) as covering only those who are applying for employment for the first time would be to enable employers to discriminate against former employees on racial grounds after that employee had been dismissed in relation to their appeal against dismissal. Given the tenor of employment legislation over the past 20 years, the Tribunal cannot believe it was the intention of Parliament to facilitate such behaviour."
On appeal by the Post Office, the E.A.T. allowed the appeal, holding that the Appellant could not bring herself within s.4(2) as she was not a person employed at the time of the act complained of, that is to say at the time of the appeal hearing and determination, and that section 4(1) was not intended to cover the position of a dismissed ex-employee seeking reinstatement on appeal.
Mr. Robin Allen Q.C. for the Applicant argues that the E.A.T. erred in relation to its construction of both s.4(2) and s.4(1). First, he made some general submissions on the correct approach to the construction of the statutory provisions. He said that in construing legislation such as the 1976 Act, which has to be considered by industrial tribunals, legal technicalities should not prevail against industrial realities and common sense. He submitted that the 1976 Act should be construed in a broad inclusive way, and relied on the remarks of Lord Lowry in Hampson v Dept. of Education and Science [1991] 1 A.C. 171 at pp. 181,2 for this. In fact what Lord Lowry said was that in view of the wide sweep of Parts II to IV of the 1976 Act provisions operating by way of exception from those Parts ought to be narrowly, rather than widely, construed where the language is susceptible of more than one meaning, and a wide construction of the exceptions would irretrievably blunt the most important weapons contained in Parts II and III and would not make sense. Mr. Allen laid particular emphasis on the importance attached by Parliament to employers having proper disciplinary procedures for their employees. He drew attention to the operative Codes of Practice and reminded us that every employee is entitled to have a written statement giving particulars of the terms of employment, including the steps which can be taken by an employee dissatisfied with a disciplinary decision relating to him (s.1(1) and (4) Employment Protection (Consolidation) Act 1978).
Mr. Allen then advanced separate arguments relating to s.4(2) and s.4(1) respectively, contending that the act complained of by the Appellant fell within s.4(2)(c), alternatively s.4(1)(c).
S.4(2)
Mr. Allen made two alternative submissions on s.4(2). First he argued that the phrase "in the case of a person employed by him" covered both a person who at the time was so employed and a person who had previously been so employed, and that the Appellant came within para.(c) as a person dismissed or subjected to a detriment other than dismissal. Second, he contended that if that was wrong, the reference to dismissal in para.(c) included the determination of the appeal from the dismissal.
On his first argument Mr. Allen submitted that there were two possible constructions of the phrase "in the case of a person employed by him". One was that it only applied to circumstances occurring prior to dismissal (which he called the narrow construction). The other was that because aspects of the contract of employment subsist even after dismissal, the phrase could be construed to include circumstances arising out of the contract of employment that concerns the case of a person who is or has been employed by the respondent (which he called the wide construction). Mr. Allen argued for the wide construction. He submitted that the narrow construction would have many absurd...
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