Appeal No.	EAT/1510/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 March 1999
Judgment delivered on 26 March 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR R JACKSON
MRS R A VICKERS

LEWISHAM & GUYS MENTAL HEALTH NHS TRUST	APPELLANTS

MRS M ANDREWS (Deceased)	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A ROWLAND
(Solicitor)
Messrs Capsticks
Solicitors
77-83 Upper Richmond Road
London
SW15 2TT	
For the Respondent	MR JOHN CROSFILL
(of Counsel)
Free Representation Unit	

	MR JUSTICE MORISON (PRESIDENT):	This appeal raises a short, unusual and difficult point of law. The applicant, the late Marcia Andrews, to whom I will refer as the deceased, presented a complaint against her then employers, the Lewisham and Guys Mental Health NHS Trust alleging that she had been discriminated against by them in the course of her employment on the grounds of her race. That application was received by an Employment Tribunal on 6th April 1998. The deceased was subsequently dismissed on 16th July 1998 and died on 23rd August 1998. Her family wish to continue with the discrimination complaint and to present a complaint of unfair dismissal.

	The dismissal issue is going to be heard and determined by an Employment Tribunal next week where the only issue is whether its was practicable for the complaint in relation to dismissal to have been within the three months time limit period, and if not, what should happen.

	The appeal arises in connection with the discrimination complaint which was extant at the date of the deceased death. 

	The matter came on for hearing before a Chairman on 6th November 1998 who held that the personal representatives of the deceased could proceed with that complaint. The decision, in writing dated 27 November 1998, states:

“1. ... The Respondent sought an order that the application be dismissed by reason of death of the Applicant. The application was refused. The claim survives the death of the Applicant. The claim may be pursued by the legal personal representative of the deceased. ...”

No further reasons were given.

	It is against that decision that the employers have appealed. Their submissions can be shortly stated.

	The Employment Rights Act 1996 contains express provisions which apply to unfair dismissal complaints and to certain complaints brought under 1992 legislation. Effectively, these statutory provisions contained in ss. 206 and 207 of the Employment Rights Act permits a personal representative of a deceased person to continue a claim which had been started before the death or to start proceedings for unfair dismissal after the death. But there is no comparable provision in either the Sex Discrimination Act 1975 or, pertinently, the Race Relations Act 1976. Thus, it is submitted, that there is no provision under the Race Relations Act 1976 for an applicant’s claim to be continued after his or her death, whereas there is such a provision in relation to other proceedings and if the legislature had intended discrimination claims to be progressed after an applicant’s death, then this would have been provided for in the Act itself, or through subordinate legislation. It was further submitted that it is general principle that where a party to legal proceedings dies those proceedings must abate unless another person can by virtue of the express terms of a statute or rules of court take them forward. Reference was made to two decision of the Court of Appeal Criminal Division. The first, R v Jeffries [1968] 3 All ER 238 was concerned with an appeal by a deceased person against conviction and sentence. Widgery LJ, as he then was, giving the judgment of the Court of Appeal Criminal Division, said this (at page 240 of the report):

“... We take it to be a general principle that whenever a party to proceedings dies, the proceedings must abate, unless his personal representatives both have an interest in the subject-matter and can by virtue of the express terms of a statute (or from rules of court made by virtue of jurisdiction given by a statute) take the appropriate steps to have themselves substituted for the deceased as a party to the proceedings. Although in this case the estate would benefit it the widow were allowed to continue the appeal and were successful, there is no procedure whereby she can be substituted as an appellant, and we do not see how there can be an inherent power in the court to allow this when the appeal is itself the creature of statute. ...”

Again, reference was made to the case of R v Maguire and others [1992] 2 All ER 433, and in particular at page 436d, where the judgment of the Court points out that the Court of Appeal Criminal Division:

“... is created by statute and has no jurisdiction other than that granted by the 1968 Act. If jurisdiction is to be found it must be form s 17 itself.”

In that case the Court of Appeal Criminal Division concluded that the word ‘person’ in s. 17 was capable of applying to a person who was deceased and that the Court had jurisdiction to consider whether the conviction in that particular case of a person who had died whilst in custody was unsafe so that it should be quashed.

	What is submitted in this case is that the right to make a complaint under the 1996 Act is part of the self-contained statutory scheme; Employment Tribunals have no power beyond that which is conferred on them by Parliament to deal with complaints; there was no power conferred on them to substitute the estate for an individual making a complaint of unlawful discrimination, accordingly, the tribunal had no jurisdiction.

	On behalf of the deceased estate, Counsel made the following submissions. 

	Firstly, that the deceased claim was properly commenced pursuant to the Race Relations Act 1976 s. 54. That section reads:

“(1) A complaint by any person (“the complainant”) that another person (“the respondent”)-
(a) 	has committed an act of discrimination against the complainant which is unlawful ...
may be presented to an industrial tribunal.”

Counsel stressed that the words “any person” were apt to include a person’s personal representative and that there was nothing in the language of s.54 to suggest that “any person” should be given a narrower interpretation.

	Secondly, he drew attention to s.6 of the Employment Tribunals Act 1996 which provides:

“(1) A person may appear before an employment tribunal in person or be represented by-
...
	(c)	any other person who he desires to represent him.”

The deceased personal representative was therefore entitled under s. 6 to appear and conduct the proceedings on behalf of her mother who was deceased. There is no express or implied requirement that an applicant should personally attend any hearing.

	Thirdly, it was submitted that because of the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 s. 1(1) the cause of action, that is the statutory tort which was being alleged, survives the death of the complainant and passes to her estate. Accordingly, by virtue of that provision, the complainant was entitled to proceed with the IT1. Thus, unless there was some express or implied statutory provision to a contrary effect, any proceedings properly commenced could be continued.

	Finally, it was submitted to us that the Race Relations Act 1976 is concerned with the elimination of racism. It is contrary to the intention of Parliament that a party may escape an investigation of the allegation merely because the complainant has died. Allowing the personal representative to continue proceedings would be in accordance with the policy of the legislation and public policy.

	In reply it was drawn to our attention that the 1934 Act should be construed in a particular way having regard to the fact that causes of action are technical terms rather than words of general application. In a case called re: Simpkin Marshall Ltd [1958] 3 All ER 611, at page 613, Wynn-Parry J in a written reserved judgment said:

	“The first ground put forward on behalf of the applicant can, I think, be quickly disposed of. He contends that the winding-up proceedings are an action within the meaning of that word in s. 225 of the Supreme Court of Judicature (Consolidation) Act 1925, which provides:
		“‘Action’ means a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, but does not include a criminal proceeding by the Crown.”
A petition for the compulsory winding-up of a company does not fall within this definition because, in the first place, a petition is a not a writ of summons, and, in the second place, the form of proceeding is prescribed in the relevant statute, the Companies Act, ... and not in either of the Rules of the Supreme Court or the Companies (Winding-up) Rules 1949.”

By analogy, it was argued on behalf of the Trust, the right to bring a complaint in an Employment Tribunal was not a cause of action subsisting or vested in the complainant. The present statutory equivalent to the 1925 Act is s. 151 of the Supreme Court Act 1981 which defines an ‘action’ in similar terms to that in the 1925 Act. Accordingly, the 1934 Act was not apt to include a complaint of discrimination. Employment Tribunals were not in existence at the time of the 1934 Act, which was directed to causes of action as technically defined in the Supreme Court legislation.

	It seems to us that the 1934 Act provides that causes of action may survive for the benefit of or against the estate of the deceased so as to include rights of action founded on breaches of contractual obligations or for personal injuries to the deceased, including damages for pain and suffering and for loss of expectation of life, and also, to include rights of action founded on statutory duties or rights. But in relation to that latter category, it seems to us that it is a matter of construing the statute to see whether the rights of action that are conferred by the statute are capable of inuring for the benefit of the estate of the deceased. In principle no right or liability of a purely personal nature can be assigned by operation of law. 

	Having regard to the legislative background to these proceedings, it seems to us that Parliament has elected not to provide that a cause of action under the discrimination legislation survives for the benefit of the estate. We can see potential policy reasons why that might be so. That is in contrast to the way Parliament has dealt with other rights to which our attention was drawn, such as unfair dismissal, where specific statutory provisions have been introduced. There is nothing in the discrimination legislation itself, nor in the Rules of the Employment Tribunal (or the Regulations pursuant to which the Rules were made); nor in the Employment Tribunals Act 1996, which enables or entitles a personal representative to be substituted for a deceased complainant in the case of a complaint for unlawful discrimination. It seems to us, accordingly, that these statutory rights which are akin to statutory torts are not, as a matter of construction, capable of devolving on the estate. They are rights of a largely personal nature which Parliament has not deemed fit to provide should devolve on the estate.

	Firstly, in answer to the submission made on the estates’ behalf, we would respectfully disagree with Counsel’s submission that s. 54 entitles a wide construction to be given to the words “any person”. It seems to us plain from the words of that section, that the person who is referred to is a person against whom the act of discrimination had taken place. Secondly, in relation to s. 6 of the Employment Tribunals Act 1996, that is a statutory provision dealing only with representation at the hearing, as it makes plain, and accordingly the fact that a daughter may represent her mother, does not mean that a daughter has the right to carry on proceedings in her mother’s name. We do not think that s. 6 casts any light on the point at issue. As to the 1934 Act, as we have indicated, it is a question of construction of the statute in the particular case. As to public policy, we are not inclined to the view that it is clear that Parliament has made some kind of accidental omission in relation to people who die when there are complainants or prospective complainants of unlawful discrimination. We think that the question as to where public policy lies is not in fact easy to determine. We can see arguments on either side.

	Accordingly, we are of the view that the learned Chairman, with great respect, has erred in law. He has exceeded the powers of the Employment Tribunal. There is no power granted by the legislation or by the Rules, to entitle him to make the order that he did in a discrimination case. Accordingly, the appeal will be allowed.

	MR JUSTICE MORISON (PRESIDENT):	The parties have indicated to us that they would wish to apply for leave to appeal to the Court of Appeal. We are prepared to grant leave in this case without giving any encouragement to the prospective appellant that such an appeal will succeed. 

	Although the point is a short and difficult one, in practice it is not likely to arise for consideration in very many cases. Because of its difficulty and because we do not think that the answer is necessarily 100 per cent clear, we are prepared to give leave in this case.