Appeal No. EAT/0586/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 October 2001

Before
THE HONOURABLE MR JUSTICE WALL
MRS R CHAPMAN
MS J P BLAKE

MR K BOATENG	APPELLANT

1) LONDON BOROUGH OF HACKNEY 2) MS SARAH EBANJA	RESPONDENTS
3) MR CHRISTOPHER HINDE

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
In Person	
For the Respondent	Ms M Murphy
(Of Counsel)
Instructed by
Hackney Legal Services
183-187 Stoke Newington
High Street
London
N16 OLH	

MR JUSTICE WALL

1.	In this case Mr Kwaku Boateng, the Applicant was employed by the London Borough   of Hackney as a Directorate Personnel Officer between 5 January 1987 and 18 February 1992.  On 16 December 1991 he made a claim of race discrimination against the Local Authority which was heard in December 1993.
 
2.	On 8 March 1994, in a promulgated decision a Tribunal upheld his complaint and he received an award.  On 27 May 1999 the Applicant wrote to Hackney asking for a testimonial to the effect that he was a competent employee with a good character during his previous service with them.  Hackney refused to give him such a reference.  The Applicant then applied to an Employment Tribunal complaining of victimisation under Sections 2 and 4 of the Race Relations Act 1976.

3.	On 22 October 1999 Hackney entered the notice of appearance in which they challenged the Applicant’s entitlement to bring such a complaint before the Tribunal on the grounds that Mr Boateng was not an employee for the purposes of the Act.

4.	The question therefore was whether or not the Tribunal had jurisdiction to entertain his application.  Following an interlocutory hearing for directions, the Chairman of the Tribunal directed that a preliminary hearing should take place to decide whether Hackney’s challenge to the jurisdiction was well founded.  By a decision with Extended Reasons sent to the parties on 4 April 2000 the Employment Tribunal unanimously decided that it did not have jurisdiction to consider the Applicant’s complaint of victimisation, contrary to Sections 2(1)(a) and (c); 1(1)(a) and 4(2)(b) of the Race Relations Act 1976.

5.	The Applicant now appeals that decision to the Employment Appeal Tribunal.  The relevant sections of the Race Relations Act are set out in the Extended Reasons of the Tribunal.  Part I is entitled DISCRIMINATION TO WHICH THE ACT APPLIES Section 1 reads as follows:

“Definitions
1	Racial discrimination
(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 than he treats or would treat other persons; …

2.  Discrimination by way of victimisation

(1)  A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reasons that the person victimised has

(a)	brought proceedings against the discriminator or any other person under this Act; or …

(c)	otherwise done anything under the discriminator or in relation to the discriminator or any other person.”

PART II: DISCRIMINATION IN THE EMPLOYMENT FIELD

Discrimination by employers

4	Discrimination against applicants and employee

(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:

(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”

6.	The short and simple point taken by Hackney below and before the Employment Appeal Tribunal is that the act of victimisation has to occur whilst the Applicant is “employed” – see Race Relations Act Section 4(2) and that acts outside the period of employment are not covered - see in particular the decision of the Court of Appeal in Adekeye -v- The Post Office  (No 2) [1997] IRLR 105.  The Tribunal dealt with the matter in the following way:

“ The submissions
Mr Boateng in his decorous and comprehensive submissions to the Tribunal accepted that to bring a claim of direct discrimination under Section 1(1)(a) of the 1976 Act an element of Section 4 had to be proved by the Applicant.  However, under Section 2(1) no mention is made of employment and, therefore, employee status is not a pre-requisite to establishing jurisdiction in a claim for victimisation.  After all, Mr Boateng argues with considerable force, this is quite logical.  To exclude past employees would be to leave without protection a substantial number of potential victims.  This, he states could never have been the intention of Parliament.  Mr Boateng then invited the Tribunal to consider the cases of Adekeye -v- Post Office and Granada Hospitality -v- Coote (supra).  Urging us to distinguish Adekeye (supra) as it was not a victimisation case but one that related to Section 4 of the 1976 Act, he invited the Tribunal, if necessary and without prejudice to his former submission, to take the kind of purposive approach the EAT had taken when considering Section 6(2) of the Sex Discrimination Act 1975 in applying the judgment of European Court of Justice.  Should the position not be the same, Mr Boateng submits it would leave anti-discriminatory legislation in this jurisdiction in disarray.
Miss Murphy, in a crisp submission that was a model of its kind, did not attempt to vouchsafe the desirability of the position that Mr Boateng sought to aspire to from a general point of view.  However, as the law stood it did not assist him and the Tribunal had no jurisdiction.  She put her case thus:
i)	Mr Boateng had previously confirmed that his reference to Section 4(2) was intended to only support his argument.  As a matter of necessity he has to because without it in support of his claim under Section 2 he is not in a position to demonstrate the unlawfulness of the Respondent’s alleged actions.
ii)	An act of discrimination under PART I if established must be proved to be unlawful under PART II.  An interpretation of Section 2 is not a discreet exercise – the victimisation must relate to discrimination against employees save in the position of those who apply for employment.
iii)	Adekeye is authority for the clear proposition laid down by the Court of Appeal (a superior court of record to this Tribunal) that the wording of the 1976 Act does not permit a non employee at the time which the alleged wrongful act took place to bring a complaint under its auspices.
iv)	The position was different in sex discrimination because of the ECJ interpretation of Article 6 of the EC Equal Treatment Directive concerning access to a remedy where a woman or a man have suffered unequal treatment.  Accordingly the EAT interpreted Section 6 of the 1975 Act to ensure it was in conformity with the Directive and Ms Coote’s complaint of victimisation was within the jurisdiction.  This was particularly appropriate because the victimisation claimed was the failure to provide a reference and the EAT was not in a position to say the Court of Appeal wrongly decided Adekeye.  Indeed, the President acknowledged the EAT was bound by it although he disagreed with it.

v)	Finally, the EAT in Granada Hospitality -v- Coote did not distinguish between racial discrimination claim under Section 1 and victimisation claim under Section 2 of the 1976 Act.  This was certainly a deliberate omission given the thrust of the judgment and the views expressed by the President.
Conclusion
Although this Tribunal would respectfully associate itself with the dissatisfaction 
expressed by the EAT in Granada Hospitality -v- Coote and the essence of Mr Boateng’s sense of bemusement given the factual nexus with that decision, we are unanimously of the view that Miss Murphy’s submissions are a correct exposition of the law as it currently stands.  Victimisation cannot be considered on a discreet basis and is dependent upon Section 4 in PART II of the 1976 Act.  The protection of former employees against victimisation extended under the Sex Discrimination Act 1975 established by Granada Hospitality -v- Coote does not apply to the Race Relations Act 1976.  Adekeye still binds this Tribunal and, accordingly, as Mr Boateng was not an employee of the First Respondent on 22 June 1999 he is not entitled to bring a claim under Section 1 or Section 2 of the 1976 Act.  As the Tribunal does not have jurisdiction to hear his complaint, his Originating Application is therefore dismissed.

7.	Mr Boateng’s own Notice of Appeal is admirably succinct.  He claims that the Chairman of the Tribunal misdirected himself as to the law applicable and erred in law in that decision was erroneously based on Adekeye.  That case dealt with direct discrimination and not victimisation contained in Section 2 of the 1976 Race Relations Act.  He relied on two cases, the Chief Constable of West Yorkshire Police & others -v Khan and the Court of Appeal, Granada Hospitality -v- Coote.  He argued that the Tribunal’s decision was unsatisfactory and should be reversed.

8.	Since the matter was before the Tribunal the law has moved on and in particular it has moved on by reference to a decision of the Court of Appeal called D’Souza -v- London Borough of Lambeth handed down by the Court of Appeal on 25 May.  The decision was of a Court comprising Schiemann LJ, Robert Walker LJ and Lloyd J but the judgment is the judgment of the Court.  In our view it is highly material to the current appeal.

9.	The position was that Mr D’Souza had been dismissed by the London Borough of Lambeth in 1990.  He then brought proceedings alleging unfair dismissal and racial discrimination.  The former was admitted by Lambeth and an Employment Tribunal in 1992 made an order that he should be reinstated.  Lambeth asserted this was not practical and in 1995 Mr D’Souza started proceedings alleging that the decision not to reinstate him had been caused by continuing discrimination and victimisation.  

10.	Both the Employment Tribunal and the Employment Appeal Tribunal held they had no jurisdiction to entertain his complaint and the Court of Appeal dismissed his appeal.  Giving the judgment of the Court Schiemann LJ reviewed all the relevant recent authorities including Adekeye and another decision not available to the Tribunal (I think) Rhys-Harper -v- Relaxation Group Ltd [2001] EWCA Civ 634.  The conclusions of the Court of Appeal in D’Souza are to reinforce Adekeye as being the law and in the course of the overall judgment the Court dealt with a series of points, some seven in all including questions which were again raised very properly by Mr Boateng in the course of his submissions to us.

11.	The argument for the Appellant in D’Souza was firstly that Adekeye had been wrongly decided and whilst the Court of Appeal saw some force in the submission that the decision in that case could have gone the other way in particular in so far as Section 4(1) was concerned it did not and the Court of Appeal regarded itself as bound by that case.

12.	Secondly, it was argued that D’Souza  involved an allegation of victimisation as defined in Section 2 as opposed to discrimination as defined in Section 1 which was what was complained of in Adekeye.  The Court of Appeal said that even that assuming that to be so it was not a difference which entitled the Court to depart from Adekeye.

13.	The next point taken was that D’Souza involved non-implementation or reinstatement although whereas Adekeye involved an internal appeal.  The Court of Appeal dismissed that as a distinction without a difference.  It was also argued that decision of the European Court of Justice in Coote forced the Court to depart from what was decided in Adekeye.  That argument had been rejected in Rhys-Harper to which I shall refer in a moment and which the Court of Appeal found itself also to be bound by.

14.	There was then an argument that Adekeye had been decided per incurian which we need not concern ourselves with, I think, as it was not argued before us in the Court of Appeal and rejected that argument in any event.  It was then argued that the decision in Adekeye was incompatible with Article 6 of the Human Rights Convention as incorporated by the Human Rights Act 1998.  The Court of Appeal said that the short answer to that was that Article 6 was not in play unless the Appellant could first establish a substantive right.  That proposition had been established in the case of Z and others -v- The United Kingdom presided on 10 May and the Court cited two paragraphs of the judgment of the European Court, 87 and 98; 87 reading:

“87	The Court recalls its constant case-law to the effect that “Article 6.1 extends only to constestations (disputes) over (civil) “rights and obligations” which can be said, at least an arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States …. .”

Article 98

“98 … As it has recalled above in paragraph 87 it is a principle of Convention case-law that Article  6 does not in itself guarantee any particular content for civil rights and obligations in national law, although other articles such as those protecting the right to respect for family life (Article 8) and the right to property (Article 1 of Protocol No 1) and may do so….”

And the Court concluded with this paragraph:

“Although there is now a Community Directive in relation to racial discrimination that is not yet in force.  There has not been any breach of Community law so far as this appellant is concerned.  The arguments that the Sex Discrimination Act unless construed in the manner for which the applicant in Rhys-Harper contended is incompatible with Community law has been rejected in Rhys-Harper by which we are bound.  Even if it were correct, the argument that therefore the Race Relations Act should be construed in the manner for which the applicant in Adekeye contended has been rejected in that case by which we are also bound.  Nothing in the Human Rights Act gives this appellant any presently relevant right on which he can rely.”

16.	It seems to us that D’Souza is conclusive against the Appellant, reinforcing as it does the decision of the Court of Appeal in Adekeye.  I need however to look at other of the cases that were cited to us in brief form partly to deal with the Human Rights Act argument which Mr Boateng raised and also with what remained anomalies between the Race Relations Act and the Sex Discrimination Act.

17.	As far as the latter is concerned Rhys-Harper is now reported in the Industrial Legislation Law Reports of this year at page 460 and for present purposes it seems to me that all I need to do to put into contents is to read a passage from the headnote in that case:

“The Court of Appeal held that Employment Appeal Tribunal had correctly concluded that the applicant could not bring a claim under s.6(2) of the Sex Discrimination Act that her employers had failed to investigate adequately a complaint of sexual harassment that she did not bring until after her dismissal.  The Employment Tribunal does not have jurisdiction under under the discrimination legislation to consider a complaint in respect of acts or events which occurred after the termination of employment, other than a claim of victimisation.  The decision of the Court of Appeal in Adekeye -v- The Post Office (No 2) that the words “employed by him” in s.4(2) of the Race Relation Relations Act mean that the Act does not protect those who are no longer employed by the employer at the time of the alleged act of discrimination is binding as to the meaning of substantially the same words as used in s.6(2) of the Sex Discrimination Act.  A decision by a court in relation to the meaning of the words used in the Race Relations Act or Sex Discrimination Act carries the same authority in relation to the same words used in the cognate Act as it does in relation to those words as used in the Act that the court’s judgment actually addressed.
The effect of the decision of the European Court of Justice in Coote v Granada Hospitality Ltd is not to take all claims under the Sex Discrimination Act out of the ambit of the reasoning of the Court of Appeal in Adekeye (No 2).  The Court of Justice did not reject in general terms the argument that events occurring after the termination of employment were not covered by the Directive.  Its decision is limited to ensuring that there is an effective remedy for persons who consider themselves wronged by measures taken by an employer as a reaction to proceedings brought by employees to enforce compliance with the principle of equal treatment.  They must have a remedy if they are victimised after the employment has terminated.  Coote cannot be used to extend relief to an act only initiated after the employment had terminated, such as in the present case.  Therefore in the present case the decision in Adekeye (No 2) must be followed.”

18.	Accordingly whilst anomalies still remain between treatment under the Race Relations Act and the Sex Discrimination Act it is apparent Rhys-Harper has sought to restrict the nature of the claims that can be brought under the latter and reinforced the authority of the Court of Appeal in Adekeye

19.	Mr Boateng referred us to two other cases in particular, the first being Nagarajan -v- The London Transport Executive, a decision of the House of Lords.  This was a case in which the employee having been employed by the LRT for a number of years and having ceased in that employment applied for another job and alleged discrimination in the application. It is clear from the total absence of any reference to the authorities which I have previously been discussing that there was no difficulty it would seem in the applicant bringing himself within the statute he being in the process of applying for employment and therefore within the language of the statute.

20.	Once again it may seem on the face of it somewhat anomalous that someone who applies for employment and is discriminated against has a remedy whereas someone in Mr Boateng’s position who applies for a reference in relation to past employment he has no remedy.  It may be an irony that if Mr Boateng were applying to Hackney for employment he might well bring himself or be able to bring himself within the statute if he argued or had a case that he was being discriminated against.  But nonetheless, it seems to us that Nagarajan does not help Mr Boateng as it related to an entirely different point. 

21.	The other case relied upon by Mr Boateng was the Chief Constable of West Yorkshire -v- Khan and once again this case is easily and readily distinguishable because Mr Khan at all material times remained employed by the Police Force and therefore the claim was made during the course of his employment.

22.	In all these circumstances, it seems to us inevitable that this appeal must be dismissed.  The Employment Appeal Tribunal lacks jurisdiction in the same way that the Employment Tribunal lacked it.  We are entirely bound by the decisions of the Court of Appeal and have no power to depart from them.  On the facts that this case it seems to me that both Adekeye and D’Souza are effectively indistinguishable and therefore bind this Tribunal.

23. 	One cannot but have some sympathy for Mr Boateng in the arguments he has advanced given the anomalous nature of the jurisdiction.  It might well be thought that an application for a reference was as important to an employee as an application for employment itself or indeed that the one was the necessary forerunner of the second.  Discrimination against a former employee by an employer who declines to give a reference may be as significant as discrimination in employment.

24.	Mr Boateng sought to rely in this respect on the Human Rights Act and in particular Article 14 of the European Convention which states in terms that the employment of rights and freedom set forth in this convention shall be secured without discrimination on any grounds which is sex, race, colour, language, religion, political or other opinion, national or social origin association with the national minority, property, birth or other status.

25.	That of course is in extremely wide terms and it would appear on the face of it that the Race Relations Act does not give rights in those terms or in terms which are as wide.  But I think as it was pointed by Ms Murphy in her skeleton argument in order to bring himself within the Human Rights Act as was made clear in D’Souza Mr Boateng effectively has to establish a breach of his rights.  The Court of Appeal in D’Souza made it reasonably clear that in their view as related to Article 6 within the domestic legislation there was no breach and it would seem to us that within Article 14, whilst that article is expressed in wider terms there is a remedy within the Race Relations Act (albeit limited) and it is likely that the view of Europe would be that it was within the margin of appreciation.  Nonetheless on the face of it, it does appear to be a slimming down of rights within the Race Relations Act as opposed to rights within the Convention.  Once again that is not a matter for us.  That is a matter for either the High Court or for Parliament or indeed for Europe if a further directive is to emerge.

26.	In these circumstances therefore, inevitably, this appeal has to be dismissed.

27.	Despite our views of the question of sympathy for Mr Boateng we do not feel this is a case in which we should give permission to appeal.  This is an area which the Court of Appeal has revisited recently and stated its position in very clear terms and in those circumstances it seems to us that if Mr Boateng wishes to appeal he needs to persuade the Court of Appeal that this is a case which they should take.