Appeal No.	 EAT/360/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 July 1998
Judgment delivered on 22 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
LORD GLADWIN OF CLEE CBE JP
MR B M WARMAN

MR D C D'SOUZA	APPELLANT

THE LONDON BOROUGH OF LAMBETH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	JUDGE PETER CLARK:	This appeal was adjourned at an inter partes preliminary hearing held on 23rd May 1997 by a division of the EAT presided by Morison P, pending a possible appeal to the House of Lords in the case of Adekeye v Post Office (No.2) [1997] IRLR 105. It is now clear that Adekeye No.2 will not go to the House of Lords and at the request of the appellant this matter has been relisted for hearing before us. It is an ex parte hearing and accordingly we have not heard representations on behalf of the respondent, Lambeth.

	It is an appeal against a reserved decision of an Industrial Tribunal sitting at London (South) under the Chairmanship of Lt. Col. D W H Brayden on 23rd February 1996, which decision was promulgated with extended reasons on 14th March 1996.

	The two particular complaints made by the appellant, Mr D’Souza and in respect of which that decision was given, relied upon a contention that the appellant had been subjected to racial discrimination and victimisation by Lambeth, by whom he was employed until his dismissal on 16th January 1990, in that Lambeth had refused to reinstate him following an order made by an earlier tribunal in March 1993, and that such failure constituted a continuing act of unlawful discrimination.

	Lambeth contended that it was not reasonably practicable to reinstate the appellant, and that the complaint was out of time.

	The particular issue which the Brayden tribunal was convened to determine was whether there was jurisdiction to hear the complaints in the light of the then EAT decision in Post Office v Adekeye (No.2) [1995] IRLR 297. In that case a division of the EAT presided over by Smith J held that a complainant who alleged that she was racially discriminated against in the course of an internal appeal procedure following dismissal, in which she was seeking reinstatement, was not a person employed within s. 4(2)(c) of the Race Relations Act 1976, nor was she a person seeking employment under s. 4(1)(c). Accordingly her claim for unlawful direct racial discrimination was not covered by the legislation and it was dismissed.

	The Brayden tribunal found that Adekeye (No.2) was indistinguishable from the present case and dismissed Mr D’Souza’s complaints on the grounds that it had no jurisdiction under the Act to entertain them.

	The particular submission which we think merits consideration at a full inter partes appeal hearing is this. Ms Adekeye complained only of direct racial discrimination; accordingly the Court of Appeal and the EAT in that case were concerned with a combination of ss. 1(1)(a) and 4(2)(c) or 4(1)(c) of the Act.

	In the present case Mr D’Souza has brought claims of both of direct discrimination under ss. 1 and 4 and victimisation under s. 2. Adekeye (No.2) does not deal with victimisation.

	Looking at s. 2 it is arguable that Mr D’Souza’s claim of victimisation may proceed notwithstanding that the act of victimisation complained of occurred after the termination of his employment. S. 2 appears to lay down a comprehensive cause of action, not dependent on s. 4. Support for this view is to be found by extension from the provisions of s. 4(3) of the Act in relation to complaints of victimisation by persons employed in private households. The appellant has done a protected act, that is, bringing proceedings against Lambeth under the Act and he complains that he has been treated less favourably than Lambeth treated or would treat other persons who had not done the protected act. He seeks to compare himself with other former employees who have brought proceedings against Lambeth resulting in orders for reinstatement which have been complied with by Lambeth.

	On this ground we shall allow the matter to proceed to a full inter partes appeal hearing. The question then arises as to whether we should dismiss the remaining grounds of appeal in relation to his complaint of direct racial discrimination on the basis that this case is not properly distinguishable from Adekeye (No.2) and that we are bound by the Court of Appeal decision in that case. We have concluded that it would not be right to do so at this preliminary hearing stage. We think that the appellant should have the opportunity at a full appeal hearing to deploy his arguments which were not considered by the Court of Appeal in Adekeye (No.2) and that he should be given the opportunity to seek to distinguish that case on its facts. Further, it seems to us that the Court of Appeal decision in Adekeye (No.2) raises a question of general importance in the field of race and sex discrimination legislation.

	For these purposes we shall direct that the case be listed for one day, if practicable before the President. Skeleton arguments to be exchanged between the parties no less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged timeously with the Appeal Tribunal.