Appeal No.	 EAT/360/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
On 18 January 1999
and 22 June 1999
Judgment delivered on 27 June 2000

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR N D WILLIS
MR K M YOUNG CBE

MR D D'SOUZA	APPELLANT

LONDON BOROUGH OF LAMBETH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondents	MR J BURKE QC
Instructed by:
Mr K Bryant
Solicitor
Legal Department
London Borough of Lambeth
Lambeth Town Hall
Acre Lane
Brixton
London
SW2  1RL	

	MR JUSTICE MORISON (PRESIDENT):	This appeal is part of a continuing legal battle which Mr D’Souza, the appellant is waging against his former employers, the London Borough of Lambeth [Lambeth].   He was dismissed on racial grounds by Lambeth; an Employment Tribunal made a reinstatement order with which Lambeth ultimately showed it was not practicable to comply.

1.	These proceedings relate to a contention by the appellant that Lambeth’s refusal to re-instate him was itself an act of discrimination about which he is entitled to bring a complaint.    He says that it was only as a result of Lambeth’s evidence, which purported to justify their inability to re-instate him, that it became obvious that their alleged reasons for non-reinstatement were spurious.   There are two complaints which have been heard together and treated as one.  Lambeth sought to have the complaints struck out but that application was rejected by the Employment Tribunal and it ordered a preliminary hearing of the issue whether the Tribunal had jurisdiction to hear the complaints.   Their decision was given on 14 March 1996.   For reasons which emerge from Lambeth’s chronology of the appellant’s extensive litigation against them, the appeal was adjourned and came back before the EAT on 18 January and 22 June 1999.   

2.	The essence of the Tribunal’s decision was that, as the appellant was not in Lambeth’s employment at the time of the events complained of, he had no grounds for complaint.   Lambeth’s case was and is that unlawful discrimination in the employment field is confined to complainants who make complaint about they way they have been treated in being offered employment or who complain about matters which occur during the employment relationship.   The Employment Tribunal accepted that submission and held that it was bound by a Court of Appeal decision in The Post Office v Adekeye [No 2] [1995] IRLR 297.   There, the appellant argued, unsuccessfully, that she was entitled to bring a claim for unlawful discrimination in relation to the way her employers conducted an internal appeal.   Under the Post Office’s, unusual, terms and conditions of employment, the contract of employment terminated, and the dismissal became effective, after the first stage of the dismissal process regardless of a pending appeal.   

3.	The tribunal also rejected the appellant’s case that in relation to re-instatement after dismissal he was to be treated as though he were an applicant seeking employment in relation to whom the Act would apply.   In rejecting that contention the Tribunal said:

“The order [of reinstatement] was an order and unless and until it was obeyed by the ex-employer, the Applicant remained an ex-employee.   There is no distinction between his case and that of Miss Adekeye.”

4.	With his usual skilful, courteous and persuasive submissions, the appellant presented the following arguments, which I summarise.

(1)	Relying upon a passage from Lord Templeman’s judgment in the House of Lords in Duke v GEC Reliance [1988] IRLR 118 at 123, the appellant drew attention to various passages in the White Paper entitled Racial Discrimination (Cmnd 6234/75).   He drew from them the propositions that it was Parliament’s intention to introduce legislation which was comprehensive in its scope and that the same machinery and procedures were to be adopted as those in the Sex Discrimination legislation.
   
(2)	He criticised the judgment in Adekeye where the court accepted that the words “a person employed by him” in section 4(2) of the Act meant ‘a person who is employed by him’.   He submitted that that was wrong having regard to the definition of employment in section 78 of the Act.

(3)	The duties of an employer to his employees continue after the employment relationship has come to an end.   For example an ex-employer is under a duty, when giving a reference, to provide one carefully.   He gave as a more telling example, the case of an employer who decides to pay non-contractual bonuses or enhancements only to one racial group, or to permit only white employees to remain members of the sporting club after retirement.

(4)	It was accepted by the House of Lords in Wilson v St Helens Borough Council [1998] 1 WLR 1070 that a wrongful termination of employment did not terminate the contract itself, which remained in being so that the employee could enforce all its terms save for the purpose of enforcing the right to go on working.   So, the appellant submitted, one of those rights was the right not to be subjected to discrimination.

(5)	He invited the EAT to take a purposive approach to construction and relied upon dicta of Templeman LJ in Savjani v IRC [1981] 1 QB 458 at 466H:

“ … the Act was brought in to remedy a very great evil.   It is expressed in very wide terms and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act.”

(6)	He drew attention to the case of Coote v Granada Hospitality, where Ms Coote was held entitled to a remedy for the poor references she was given because she had claimed against her employers that they had discriminated against her during her employment.   This was an exact analogy with his case.   And, apart from the White Paper, there were dicta which showed the close connection between the wording of the Sex Discrimination Act and the Race Relations Act, such that they should be construed so as to have the same effect: Hampson v DES [1988] IRLR 87 and Finnegan v Clowney Youth Training Programme [1990] ICR 462.

(7)	Finally, he submitted that the EAT was not bound by the Adekeye decision as it was manifestly wrong and was decided per incuriam.

(8)	He asked that he be given leave to amend his originating applications in the event that his appeal were successful so as to add a complaint of discrimination on grounds of sex.   This would, he submitted save a great deal of time as his applications to complain of sex discrimination had been refused by the Employment Tribunals.

5.	On behalf of Lambeth, Mr Bryant, in a careful submission, argued that none of the grounds of appeal could be sustained in the EAT which was bound by Adekeye, which was indistinguishable from the present case.

(1)	It was clear that Mr D’Souza had been dismissed and that his employment was at an end as from January 1990.   He made a claim for unfair dismissal and included within it a claim for reinstatement.   He was asking to be put back into employment and was not at that stage an employee of Lambeth’s.   The claim for re-instatement did not distinguish his case from Adekeye.

(2)	By making an order for reinstatement, the tribunal were expressing a provisional view that it would be reasonably practicable for the employers to re-instate him.   The making of such an order, which was essentially provisional, did not restore the employment relationship as from that time.   There was a further hearing to determine whether it was, in fact, practicable for reinstatement to take place.   Only if the employers accepted that they would reinstate did the former employee return to his employment.   In this case, the appellant failed at the substantive stage and a reinstatement order was not made.   The appellant never was an employee of Lambeth after his dismissal in January 1990.

(3)	A person who is no longer employed may not make a complaint under section 4(2) of the Act for the reasons given by Gibson LJ in Adekeye, since that section does not apply to ex-employees but only to a person who is employed.

(4)	A person who is dismissed and is seeking an order for reinstatement does not fall within section 4(1) of the Act.  Section 4(1) is dealing with offer and acceptance.   The reinstatement process is fundamentally different.   The applicant is not seeking an offer of employment he is seeking an order of the Tribunal that he be reinstated.

(5)	Whilst it is correct that Ms Adekeye’s claim was for direct discrimination and the appellant puts his case both under that head and under the head of victimisation there is no legal distinction between the two types of complaint.   Section 2 of the Act is defining what is meant by discrimination by victimisation.   Section 2 does not create a free standing right.   The complaint in this field must be made under section 4 which prohibits discrimination in the employment field.   It is to the definition sections that one must turn to decide whether an act is discriminatory in one of the forms described, including victimisation.   In other words, the Adekeye decision applies to all section 4(2) claims whatever the form of discrimination.

(6)	Any argument, as Mr D’Souza accepted in argument, that the second Employment tribunal was not entitled to rule on the same matter which was dealt with at the first tribunal which held a pre hearing review was hopeless.   The function of the first tribunal was to decide whether the complaints should be allowed to proceed and the function of the second was to determine whether the tribunal had jurisdiction to consider the complaints.   The question of jurisdiction was not decided by the first tribunal.

(7)	It was not open to the EAT to say that the Adekeye decision was per incuriam.   The case was fully argued there and, like it or not, the EAT must faithfully follow it since each court in the hierarchy must loyally accept the decisions of the higher courts: Broome v Cassell [1972] AC 1027.

6.	It seems to us that we are bound by the decision of Adekeye which must be faithfully followed, although we do so without relish.   We can see a strong argument for adopting a purposive approach to section 4 and make it elastic enough to cover acts of discrimination against former employees.   The employment relationship, in the most general sense, outlives the contractual relationship: there are references, pension matters, sports clubs and other post employment events which links an ex employee with his former employer.   It would be intolerable if an employer could blacken the former employee in the market place because he had successfully sued his former employer in a Tribunal.   If people are frightened by what happens to them if they make a complaint, the evil of discrimination will be more likely to live on.   Not all perks and privileges for retired staff could be considered contractual and it is difficult to understand why, if they were dealt with in a discriminatory way, they should not be covered by the Act, since there may be no other available remedy.   It also seems to us that the Court of Appeal may wish to review the Adekeye decision in the light of the European Court’s decision in Coote.   

(1)	It does not seem to us that it is possible to distinguish that decision.   We consider Mr Bryant’s submission as to the nature of a victimisation complaint to be in accordance with the proper interpretation of the statute and to be consistent with a decision of this court in Nagarajan v Agnew [1995] ICR 520.   It is artificial and wrong to suggest that a dismissed employee who is seeking re-instatement can bring himself within section 4(1).   Reinstatement is a statutory procedure which has no common law equivalent; whereas section 4(1) of the Act is dealing with attempts to obtain employment in the market place, so to speak.   

(2)	Whilst we are of the view that the Adekeye decision fails to give effect to the intention of Parliament to provide a comprehensive legislative code, we cannot change the law. 

7. 	The appeal must be dismissed.