Appeal No. EAT/625/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13 January 1995
	Judgment delivered on 15 February 1995

	Before

	THE HONOURABLE MRS JUSTICE SMITH

	MR D A C LAMBERT

	MR J C RAMSAY

THE POST OFFICE	APPELLANTS

MISS O ADEKEYE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R GREENING
(Of Counsel)
	The Solicitor
	Post Office
	Impact House
	2 Edridge Road
	Croydon
	CR9 1PJ

For the Respondent	MR PHILIP READ	
(Of Counsel)
	Anthony Gold, Lorman and
	Muirhead
	The Hop Exchange
	34 Southwark Street
	London
	SE1 1TY

	MRS JUSTICE SMITH:  This is an appeal by the Post Office from the decision of an Industrial Tribunal sitting at London South on 5th April 1994, on a point of jurisdiction under the Race Relations Act 1976.  The Tribunal held that they had jurisdiction to hear Miss Adekeye's complaint that the Post Office had subjected her to direct discrimination on the ground of race at the hearing of her appeal against dismissal from her employment with them. 
	I regret to say that this is the second occasion on which the Employment Appeal Tribunal has heard an appeal on a preliminary point of jurisdiction in this case.  It is necessary to set out the history of proceedings.

	On 12 February 1990, Miss Adekeye took up employment with the Post Office as a customer care officer.  On 8th June 1991, less than two years later, she was summarily dismissed for misconduct.  She was found to have evaded postage and to be in unauthorised possession of official envelopes.  On 8th August 1991, her appeal against dismissal was heard.  On 15th August 1991, the decision dismissing her appeal was sent to her.  On 25th September 1991,  Miss Adekeye lodged an application with the Industrial Tribunal in which she complained of 'Unfair dismissal (racial harassment)'.  In essence she was alleging that her misconduct, which she did not apparently deny, was commonplace behaviour by Post Office employees and was condoned by management.  She alleged that she had been treated differently from other  employees who had done the same thing.  Others had not even been reprimanded, whereas she had been dismissed.  

	At a preliminary hearing on 9th March 1992, the claim was presented as one of racial discrimination.  It was obvious that Miss Adekeye had not been employed for long enough to sustain a claim for unfair dismissal.  The Tribunal accepted the employer's contention that the complaint of racial discrimination was out of time under the provisions of Section 68(1) of the Race Relations Act 1976.  The Employment Appeal Tribunal allowed Miss Adekeye's appeal from that decision on the basis and to the extent that her complaint dated 25th September included an allegation of racial discrimination in the conduct of her appeal held on 6th August.  Thus her application had been lodged within three months after the date of that `act complained of'.   In the course of the judgment, May J. observed, apparently without there having been any discussion or argument on the point, that the complaint was brought under Section 4(2)(c) of the 1976 Act.  Section 4(2) provides:
	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 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.  

	May J said that Miss Adekeye was alleging that white employees would not have had their appeals against dismissal rejected as was hers and the rejection of hers had subjected her to a detriment under section 4(2)(c).  At that stage, both parties appear to have assumed that Miss Adekeye was entitled to bring her claim under that provision.  For that to be so, she must have been 'a person employed' at the date of the act complained of, the 6th August 1991. 

	Soon after the decision of the Employment Appeal Tribunal was sent to the parties, the Post Office solicitor wrote to the Industrial Tribunal requesting a second preliminary hearing.  This time the issue was to be whether Miss Adekeye was an employee at the time of the act of discrimination complained of.  

	Miss Adekeye did not attend the preliminary hearing but the Tribunal heard the Post Office submission that the claim could not be brought under Section 4(2).  The tribunal appear to have thought this submission was well-founded although they did not expressly say so.  Mr Gardiner for the Post Office also submitted that there was no provision in Part II of the Act within which Miss Adekeye could bring her complaint.  For her complaint to be well founded, she must be able to bring it within one of the provisions of Part II of the Act.  The Tribunal did not accept Mr Gardiner's second submission.  They suggested that Miss Adekeye could bring her claim within section 4(1)(c) of the Act.  

Section 4(1) provides:
	"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 that employment; or
		(b)	in the terms on which he offers that employment; or
		(c)	by refusing or deliberately omitting to offer him that employment."
  
	Mr Gardiner contended that section 4(1) applied only to persons who were applying for employment for the first time and was not intended to include people who had been employed and dismissed and were seeking re-instatement.  He said that to include them would be to strain the language of the section. 

The Tribunal rejected those arguments.  They said:
	"It is quite clear that section 4(1) does not state it applies only to those who are applying for employment.  In the Tribunal's opinion, the words 'in relation to employment' are capable of covering a situation where an employee has been dismissed and is applying to be reinstated on appeal.  To interpret section 4(1) as covering only those who are applying for employment for the first time would enable employers to discriminate against a former employee on racial grounds after that employee had been dismissed in relation to the appeal against dismissal.  Given the tenor of employment legislation over the past 20 years, this Tribunal cannot believe it was the intention of Parliament to facilitate such behaviour.  The Tribunal therefore finds that the Applicant's claim of unlawful racial discrimination is covered by section 4(1)(c) of the Race Relations Act 1976 and that the Tribunal has jurisdiction to hear her claim."

	From that decision, the Post Office appeals.  Before this Tribunal, Mr Greening has made the same points as below.  He submits first that Miss Adekeye must bring her claim under either section 4(1) or 4(2).  There is no other appropriate provision.  That is not disputed and is plainly right.  He submits that neither subsection is available to her.  Section 4(1) is aimed at discrimination in recruitment, not discrimination in the conduct of a disciplinary appeal.   He submits that the rejection of an appeal against dismissal is not a refusal to offer employment.    Last, he submits that Miss Adekeye cannot bring herself within section 4(2) as she was not a person employed at the time of the act complained of.  
	In her original answer to the appeal, Miss Adekeye relied only on the Tribunal's reasons.  However, following a recent change of counsel, the respondent sought before us to uphold the decision on quite different grounds.  Mr Greening very sensibly did not oppose leave to amend the respondent's answer.  Mr Reed now submits that the case should properly be brought under section 4(2)(c) on the basis that Miss Adekeye was still a person employed at the time of the appeal hearing.   In other words, he submits that the assumption made by everyone at the previous hearing of the EAT was correct.  

	In the alternative, he submits that the Tribunal was right to hold that the case fell within Section 4(1)(c).  Accepting for the sake of the argument that Miss Adekeye was an ex-employee at the appeal hearing, he submits that on that occasion she was in truth an applicant for employment.  She wanted her old job back and the language of that subsection is wide enough to encompass a person in her position.   He accepted, however, that her position on that day did not fit comfortably within the words of the subsection.  The words would have to be construed very widely to accommodate an appellant against dismissal.  

	He further submits that a person in Miss Adekeye's position must be able to bring herself within one subsection or the other as it is inconceivable that Parliament should have intended to outlaw discrimination in the dismissal of an employee and yet to have allowed discrimination at an appeal hearing to go unchecked.  

	As Mr Reed's main argument relates to section 4(2), we propose to consider that subsection first.   The crucial question is whether Miss Adekeye could properly be described as 'a person employed' or an 'employee' at the date of her appeal hearing. 

	We consider first whether the expressions `person employed' and `employee' could properly be construed to include a former or ex-employee.   If they are to be so construed, there is no problem; Miss Adekeye would fall within the ambit of section 4(2).

	Section 78(1) of the 1976 Act defines `employment' as `employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly.'   The words appearing in section 4(2) `person employed' and `employee' are not themselves defined but are plainly related expressions which must be construed in accordance with the definition of `employment.'  Therefore, a `person employed' or `employee' means `a person who is employed under a contract of employment'.   We note the use of the present tense.  We also observe that Section 78(1) of the 1976 Act is in exactly the same terms as appear in the definition section of the Sex Discrimination Act 1975.  However, we note that in contrast, Section 153 of the Employment Protection (Consolidation) Act 1978 defines `employee' as  `an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.  We note the use of the present or past tenses.    It appears to us that the difference between the definitions in the discrimination provisions of the 1975 and 1976 Acts on the one hand and the 1978 Act on the other, must be of significance and we consider that this indicates that it was the intention of Parliament not to include an ex-employee in the definition of 'employee' for the purposes of the 1976 Act.
                                                                                        
	We turn then to consider whether, as Mr Reed submits, Miss Adekeye was still a `person employed' by 6th August 1991.  We should so hold, he submits, so as to give effect to the proper purpose of the section as described by Balcombe J, as he then was, in Lupetti v. Wrens Old House Ltd. [1984] ICR 348.  At page 351 Balcombe J said: 
	"Putting it quite shortly , it seems to us that the mischief which Parliament was intending to cover by those provisions [of the Race Relations Act 1976] was that of a person finding himself out of a job because of racial or other discriminatory grounds."  

	We respectfully agree with that observation and if we were able to conclude that the words `person employed' and `employee' could be construed widely so as to include a person awaiting an appeal following summary dismissal, we would gladly do so.  However, we cannot do so if the words have a clear meaning which does not admit of that wide construction.    

	Counsel referred us to the decision of the Employment Appeal Tribunal (Knox J, Mrs M.L. Boyle and Mr K.M. Hack JP) in the case of  Nagarajan v. Agnew  [1994] IRLR 61, in which the point arose directly.  At paragraph 24 of the decision, the Appeal Tribunal considered the appellant's submission that the ambit of section 4(2)(c) was "sufficiently wide to embrace the case where an employer subjects an ex-employee to a detriment after the employment relationship has terminated by some act which is referable to the period when the employment relationship subsisted and that on that basis it would be possible for there to be an unlawful discrimination under section 4(2) at a time when the person discriminated against had previously been but no longer was an employee of the person who had been the employer."  The Appeal Tribunal then considered the language and the events described in the subsection and concluded, at paragraph 27, that the protection afforded by section 4(2) is limited to events occurring during the subsistence of the relevant employment.  We respectfully agree with the reasoning and the conclusion of the EAT in Nagarajan's case.  

	Mr Reed for Miss Adekeye submitted that there were subsisting after the date of summary dismissal sufficient remnants of the contractual obligations as to entitle us to find that the employment still subsisted until the date of the appeal.  He submitted that the right to an appeal was a contractual right, which had the effect of keeping the employment in subsistence even though the employee was not entitled to work and the employer was not obliged to pay her.   He submitted that the right to an appeal hearing could, if necessary, be enforced by mandatory injunction.  We are doubtful of that but in any event we consider that there may be contractual terms which continue in force after the subsistence of the employment has ceased.  A duty of confidentiality and a covenant in lawful restraint of trade are examples which spring to mind.  We do not think that the Employment Appeal Tribunal in Nagarajan intended to put a gloss on the statutory words of Section 4(2).  We consider that the test is whether Miss Adekeye was a `person employed'.  We also consider that the existence of continuing contractual rights and duties, such as the right to an appeal hearing, do not entitle the parties to the contract still to regard themselves as employer and employee. 
     
	Mr Greening argued that it is well established by authority that the employment of an employee who is summarily dismissed comes to an end at the moment the decision to dismiss is conveyed and does not continue until the hearing of an internal appeal unless there is, in the contract of employment, an express provision to that effect.   The authority principally relied upon in support of this proposition is Sainsbury (J) Ltd. v. Savage [1981] ICR 1.  That was a case in which the Court had to construe the employee's contract of employment to discover whether his employment had continued after the date of summary dismissal up to the date of an appeal hearing.  If it had continued, he would have been employed for long enough to make a complaint of unfair dismissal.  In general, courts and tribunals must be wary of using decisions under one statute as assistance or authority in respect of a decision to be made under a different statute.  However, in Sainsbury's case, the question under the statute was: `What was the effective date of termination of the employee's contract?'  In the present case, the question is whether the  employee ceased to be an employee at the date of summary dismissal.  In our judgment, it is the same question and Sainsbury's case and others on the same point may safely be used to provide assistance.  

At page 7C of Sainsbury, Brightman LJ said:
	"It seems to me clear that, to take an example, if an employee is dismissed on January 1, on the terms that he then ceases to have the right to work under the contract of employment, and that the employer ceases likewise to be under an obligation to pay the employee, the contract of employment must be at an end.  That must be the position in the present case unless (an express provision of the contract) can be read as saving the contract of employment in all the circumstances pending conclusion of the appeal.  In my view, the contract of employment is saved if the appeal succeeds because the employee is reinstated with full back pay.  But if the appeal fails, then the inevitable result is that the employee is not only deprived of his right to work from January 1, but also of his right to remuneration from that date.  If he has had no right to work after January 1 and no right to be paid after January 1, the contract of employment must have been determined as from January 1." 

	It is clear that the decision in Sainsbury's case was primarily a decision on the construction of the contract in question.  However, Mr Greening submits that the case is authority for the general proposition that in the absence of an express provision continuing the employment pending appeal, employment will cease at the date of summary dismissal.  That will be so, even though an appeal may take place at a later date which will, if successful, result in the reinstatement of the employee with full pay and continuity of employment.   We accept that submission.    
	In the present case, the Tribunal did not consider the express terms of Miss Adekeye's contract.  They were not invited to do so.  It seemed to us at one stage during the hearing of this appeal that we would not be able to reach a decision, given the absence of information about the terms of Miss Adekeye's contract.  However, we could see, from the decision of the Tribunal which heard the first preliminary point, that the letter of dismissal dated 7th June 1991 concluded with the words:
	"I consider that these acts of misconduct justify dismissal and you will therefore be dismissed with effect from tomorrow, Saturday, 8th June 1991."
It was agreed between counsel that from 8th June 1991, Miss Adekeye was not entitled to work for the Post Office and the Post Office was not under any obligation to pay her.    The letter of dismissal went on to explain her right of appeal and the various ways in which this could be done.  With counsel's agreement we were also shown a copy of the Disciplinary Procedure in force at the material time.  At paragraph 8, in a section generally headed `Appeals', we found the following provision:
	"8.  Deferment of Action.
	........
	8.1   Dismissal ........ will not be deferred while an appeal is considered.  ......."

	Mr Reed had no instructions to concede the point, but it is clear to us that this contract of employment did not expressly provide for the continuance of the contract pending an appeal following upon summary dismissal.      We are driven to the conclusions that Miss Adekeye's contract of employment came to an end at the date of her summary dismissal and that at the date of her appeal hearing she was no longer an employee of the Post Office.  

	We are not persuaded by Mr Reed's submission that the observation made by May J in the appeal on the first preliminary point should be given real weight.  With all respect to the Appeal Tribunal, they were on that occasion considering a wholly different point and it is clear to us that no argument was addressed to the question now in issue.  The fact that the EAT assumed that Miss Adekeye's case could be properly brought within section 4(2) is of no assistance to us.  

	In the event, we are satisfied that by the date of her appeal hearing, Miss Adekeye was an ex-employee and she cannot therefore complain of unlawful discrimination at that appeal under section 4(2)(c).  

	We turn next to consider the alternative submission that the claim may be laid under section 4(1).  

	First we observe the opening words of section 4: `Discrimination against applicants and employees'.  It is clear, in our view, that section 4(1) prohibits discrimination against `applicants'.  Mr Reed accepted that it would be difficult for an ex-employee seeking reinstatement at an appeal to describe herself as an applicant for employment.       

	Second, we observe that each provision of section 4(1) contains words relating to `an offer of employment'.   Can the ex-employee at appeal be said to be seeking an offer of employment?  She is asking that her old employment should continue as if it had never been terminated.   Can the person who determines the appeal be said to be making an offer of employment if he allows the appeal?  Can that person be said to have refused to make an offer of employment if he dismisses the appeal?   We have come to the conclusion that all these questions must be answered in the negative.  We think that section 4(1) was not intended by Parliament to cover the position of a dismissed ex-employee seeking reinstatement on appeal.  

	If these conclusions are right, it follows that Miss Adekeye has no remedy if she was indeed the victim of racial discrimination at her appeal hearing.  We agree with Mr Reed's submission that it would be surprising that Parliament should outlaw racial discrimination in the dismissal of an employee but should leave untouched such discrimination at an appeal hearing, where that takes place after the employment has terminated.   

	Mr Greening pointed out that it is not every aspect of employment which benefits from the protection of the Act.  That is undoubtedly true.  For example, it seems clear that a former employer may, with impunity, discriminate on racial grounds against a recent ex-employee in his refusal to give a reference.  

	Mr Greening also observed that the apparent injustice revealed by this case will occur in only a very few cases.  In many cases the appeal against dismissal will be heard during a period of notice and section 4(2) will cover the appeal procedure.  If the contract of employment provides for the extension of the employment pending appeal, section 4(2) will apply.  Mr Greening suggested that it would be an unusual case in which there was racial discrimination at an appeal hearing but where the original dismissal had not been so tainted.  We think that will usually be so.  Indeed, in the present case, Miss Adekeye's initial complaint was that she had been treated differently in that she had been dismissed, whereas other employees (by implication white employees) had not been.  It was only because she had delayed in lodging her application until more than 3 months had elapsed after the dismissal hearing, that she sought to rely on the appeal hearing.   But having said that, it does seem to us unsatisfactory that discrimination at an appeal hearing following summary dismissal should not be covered by the Act, unless the contract of employment expressly saves the employment pending appeal.   We suspect that if Parliament had thought about the issue, it would have wished to outlaw discrimination both at dismissal and at an appeal hearing.  But in our view, Parliament failed to do so.  

	For these reasons, this appeal is allowed and the respondent's claim of racial discrimination is dismissed for want of jurisdiction.