Komeng v Sandwell Metropolitan Borough Council [2013] EWCA Civ 695

Case No A2/2012/2741[2013] EWCA Civ 695
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE JEFFREY BURKE QC)
Venue Royal Courts of JusticeDate Tuesday, 30 April 2013
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE UNDERHILL
Between
KOMENGApplicant--and--
Between
SANDWELL METROPOLITAN BOROUGH COUNCILRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Applicant appeared in person for in person for The Respondent did not appear and was not represented
J U D G M E N T
[1]This is a renewed application for permission to appeal following a refusal on the papers by Rimer LJ. The applicant appears in person and has put his arguments, if I may say so, very well.[2]The facts, very shortly, are these. The applicant, who is of African ethnic origin, came to this country from Ghana on a student visa. From 2006 he worked for the respondent part-time as a healthcare assistant. The terms of his visa permitted him to work up to twenty hours per week. From 2008 he had a post-study work permit, which did not restrict his working hours so long as he had leave to remain, but the leave to remain itself was due to expire in August 2010. From July 2010 the respondent made checks on a number of occasions with the UK Border Agency (so-called “ECS checks”) in order to confirm that the applicant still had leave to remain and was entitled to work. Overall, those checks confirmed his right to work (although there was a confusion caused when in October 2010 the Agency wrongly said that he was subject to a twenty-hour per week restriction, although that was eventually clarified). The applicant was, however, upset by the repeated checking. He brought a grievance which was rejected.[3]Following the rejection of his grievance the applicant brought proceedings in the Employment Tribunal. The claims there made are usefully summarised in the decision of the Employment Appeal Tribunal as follows:
"The claim consisted of three categories of complaints of direct discrimination, those being (1) the making of the ECS checks between August 2010 and early 2011; (2) the reduction of the Claimant's working hours in October and November 2010 as a result of misleading information given by the Border Agency; and (3) the rejection of the Claimant's grievance. The repeated ECS checks were also relied upon as harassment, and the behaviour which we have outlined was relied upon as victimisation, the protected act being the bringing of the original claim in 2009."
That reference to a claim in 2009 was to an earlier claim of racial discrimination. Its only relevance for present purposes is that it constituted a protected act.[4]The Employment Tribunal rejected those claims. The applicant appealed to the Employment Appeal Tribunal, and at a preliminary hearing on 3 October 2012 chaired by HH Jeffrey Burke QC it was held that the appeal had no reasonable prospect of success and it was dismissed.[5]The applicant advances five grounds of appeal which I will take in turn, though they overlap a fair amount. In each ground he refers to alleged errors of law by the Employment Appeal Tribunal: but of course, as he appreciates, we are ultimately concerned with the decision of the Employment Tribunal.[6]Ground 1 reads: "The Employment Appeal Tribunal failed to identify the correct comparator, ‘but for’ test should have been applied." 7. The point here is usefully summarised by the EAT as follows: “The claimant did not rely upon any actual comparator; he relied on a hypothetical comparator that he put forward as a white British employee who failed to provide to his employer a relevant document such as a national insurance number. The Tribunal held at paragraph 41 that that was erroneous and that the correct hypothetical comparator was a foreign national immigrant worker who was not British or a member of the European Union and was not a black African and had to prove his right to remain and work in the United Kingdom.”[7]The EAT held that the applicant's submission as to the identity of the hypothetical comparator was contrary to the decision of this court in Dhatt v McDonald's Hamburgers Limited [1991] IRLR 130 and that it was bound by that decision. What Dhatt holds is that for an employer to require proof of immigration status from a foreign national for the purpose of establishing a right to work lawfully in this country is not discrimination on the grounds of nationality. The reasoning of the Court of Appeal does not depend on justification; nor does it depend on the separate statutory defence based on a legal requirement to act in the manner complained of. Rather, what the Court of Appeal found is that the fact that an employee is subject to immigration restrictions on his right to work means that the relevant circumstances in his case are different. Neill LJ said this at paragraph 31:
"It is true that there is no express obligation imposed by statute on an employer to ensure that applicants for work are free to do so. But an employer has a general responsibility to ensure that those who work in his business comply with the law. I have therefore come to the conclusion that the distinction drawn in the printed form between British citizens and EEC nationals on the other hand and the other applicants on the other hand did not constitute unlawful discrimination. In the case of someone seeking work his nationality is a relevant circumstance because Parliament itself recognizes and seeks to enforce by reference to nationality a general division between those who by reason of their nationality are free to work and those who require permission."
[8]I, like the Employment Appeal Tribunal, am bound by that reasoning. The applicant seeks to argue that that is distinguishable because it was concerned with the position at the start of employment and with someone seeking employment, but it seems to me unarguable that the reasoning adopted by Neill LJ and the other members of the court is equally applicable to acts which are alleged to be discrimination on the same grounds in the course of employment. Neill LJ's reasoning is not specific to or limited to the case of someone applying for employment.[9]If that is right, it does not advance matters to say, as the appellant does, that “but for” the fact that he was Ghanaian, or was not a British national, he would not have been treated as he was. A "but for" test is not a sufficient condition for a finding of direct discrimination. The applicant himself referred me to my own decision in Ahmed v Amnesty International [2009] ICR 1450; but in fact that decision makes this very point, at paragraph 37.[10]Grounds 2 and 3 I can take together. They read: "The EAT erred in law in its interpretation of section 8 of the Asylum and Immigration act 1996, and the EAT failed to address the appellant's case, which is that his case did not fall under the Immigration, Asylum and Nationality Act 2006, but rather under the Asylum and Immigration Act 1996".[11]This issue arises because the respondent's reason for making the checks that it did was that it feared that if it continued to employ the applicant when he had no leave to remain or contrary to any restrictions on his right to work it would be acting unlawfully. So far as that is concerned, section 8 of the 1996 Act made it a criminal offence, broadly speaking, for an employer to employ someone in breach of the Immigration Rules. There was a defence that the employer had obtained from the employee at the start of the employment the prescribed paperwork demonstrating his right to work. That provision was repealed by the 2006 Act, which substituted a system of civil penalties, but it remained in effect in relation to employees employed before 29 February 2008, as the applicant was. The Employment Tribunal did not clearly distinguish in its reasons between the position under the two Acts. The applicant submitted to the EAT that in fact the case fell only under the 1996 Act and that an offence under that section could only be committed at the commencement of the employment, if the employer did not obtain the relevant paperwork, and not if the employee's immigration status changed thereafter. Accordingly, there was no obligation to make the checks about which he complained and no justification for the respondent doing so. The Employment Appeal Tribunal held, however, that even if the applicant's construction of section 8 was correct -- which it did not, it held, have to decide -- the issue was immaterial. The only question was what was the ground of the respondent's action. In other words, what caused it to act as it did? Quite plainly its ground was a more generalised concern to ensure that the applicant was entitled to work -- it was not a ground based, for example, on the fact that he was black or from Ghana or on any other racial characteristic, except of course the fact that he was neither British or an EEC national -- and that had been held in Dhatt not to constitute discrimination. As it put it, even if it did not amount to a criminal offence on the basis of the arguments mounted as to the differences between the 1996 and 2006 Acts, that position, ie a position where they were employing someone whom it could be said they knew did not or might not have permission, is one that no employer would want to be in, or put himself in a position in which he might be alleged to have been in.[12]I can see nothing whatever wrong in that reasoning; it flows from Dhatt. The interesting points raised by the applicant would only arise, perhaps, in a case of unfair dismissal, like that of Klusova [2008] ICR 396 to which he referred me, or in a case in which the employer was seeking to rely on the statutory defence against what would otherwise be unlawful discrimination to which I have already referred.[13]Ground 4 reads:
"The EAT erred in law by not drawing inferences from the relevant codes of practice, contrary to paragraph 8 of Igen"
. This, as I understood it, was in substance another way of putting the points to which I have already referred. The codes of practice on which the applicant relied were those giving guidance to employers as to the correct course to take in dealing with employees whose right to work was or might be limited because of their immigration status. Insofar as it seeks to raise issues of law, they are the issues that I have already considered. Insofar as it seeks to raise issues of fact about what in fact caused the employer to act as it did, the inferences to be drawn are matters of fact for the Employment Tribunal and do not give rise to any question of law.[14]The fifth ground is:
"The EAT's decision to dismiss the appellant's claim for direct racial discrimination and harassment was based on reasonableness rather than a point/substance of law"
. What the applicant means by that refers back to the arguments which I have already considered: in effect what he is saying is that the Tribunals treated this as a matter of reasonableness or justification. As he rightly reminds me by reference to Ahmed v Amnesty International, there is no defence of justification or of reasonable behaviour if direct discrimination has been established. His problem, however, is that the reasoning of the Court of Appeal in Dhatt means that there is no discriminatory ground in play in the first place, and questions of justification do not therefore arise.[15]I am grateful to the appellant for the care with which he has prepared his case and the courtesy and effectiveness with which he has developed it, but I believe, to put it at its most basic, whichever way he argues his case, the decision of this court in Dhatt is an insuperable obstacle. He has no prospect of success and I must refuse permission.

Order

Application refused