Rey v Post Office [1998] UKEAT 567_98_0812

EAT

Rey v Post Office

[1998] UKEAT 567_98_0812 · 1998-12-08

THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an appeal against the decision of an Industrial Tribunal Chairman sitting alone following a hearing on 2 February 1998 at Liverpool.

By the decision, the Tribunal dismissed Mr Rey's application brought against his employers, the Post Office, that he had been discriminated against on the grounds of his race. The background to this case is somewhat unusual. The Post Office requires all its employees to sign a contract which includes terms which require their staff to work overtime from time to time including on Saturdays and Sundays. The Applicant has been working for the Post Office since 1983 and in that capacity is expected to work on Saturdays. From 1983 to some time in 1995 that caused no difficulty to him but due to his religious belief, he now finds it unacceptable to have to work on a Saturday. He is a member of the Seventh Day Adventist Church.

There is no law which protects people in England, Wales and Scotland against discrimination on grounds of religious belief, unlike Northern Ireland, but the way the case is put is that the greater proportion of members of the Seventh Day Adventist Church are black, I think probably of Afro-Caribbean origin, and therefore requiring people to work on Saturdays is more likely to adversely affect black people than white people. The issue was looked at by the Industrial Tribunal initially, at what was described as a pre-hearing discussion on 20 November 1997. It became plain in the course of that discussion that although it might have appeared that he was making a complaint of unlawful discrimination on grounds of religion, which would not be a claim over which the Tribunal had jurisdiction, it was in truth a claim being presented on the basis of indirect discrimination on grounds of race under Section 1(1)(b) of the Race Relations Act 1976.

At the end of that discussion, the Chairman wrote a letter to the parties recording what had taken place and the letter contains this paragraph:

"The complicating feature in this case is that this is not the only religion with such a prohibition. Whether the appropriate "disproportionate effect" can be shown when taking into account other religions with similar tenets is a subject which can be dealt with at a preliminary hearing."

The preliminary hearing then took place and led to the complaint being dismissed with the Chairman sitting alone.

The terms of the decision of the Industrial Tribunal make it plain that it was the Chairman's belief that he was entitled to determine the question as to whether the Applicant had fulfilled the evidential requirements of an indirect discrimination case. To succeed, an Applicant would have to prove that the employer had applied to him a requirement or condition which he applied to other persons not of the same racial group as himself but "which is such that(1) the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it and

(2) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied and

(3) which is to the detriment to that other because he cannot comply with it."

What happened at the hearing was that some evidence was given by the Applicant based on his researches as to the proportion of black people who are members of the Seventh Day Adventist Church by comparison with the proportion of white people and based on information provided to him by, I think, the British Board of Deputies, he produced evidence in relation to the number of orthodox Jews who would refuse to work on a Saturday. The Tribunal's decision contained the following passages:

"I certainly accept that it can probably be said that where Seventh Day Adventists and indeed others feel themselves prohibited by their religious beliefs from working on a Saturday, then that is sufficient to establish that they cannot comply with a requirement to work on that day. Equally, had the Applicant satisfactorily demonstrated that the proportion of black workers who could comply with that requirement was 1.28% as opposed to 0.1% for non-black workers, then that would amount to a considerably smaller proportion. Where the Applicant falls down, in my view, is in establishing the existence of those figures. On the basis of the evidence given to me, I am not able to conclude that he has done so. It follows that I cannot conclude that there is a considerable discrepancy between the proportions who can comply in the respective racial groups."

It is clear from the terms of that decision that the Tribunal Chairman sitting on his own, has purported to make a determination of one essential ingredient in a Race Relations Act complaint. In a succinct Notice of Appeal and supported by his skeleton argument, the submissions made by Mr Grant on Mr Rey's behalf can be stated shortly. Section 9(4) of the Industrial Tribunal's Act 1996 provides that Industrial Tribunal Procedure Regulations may also include provision for authorising an Industrial Tribunal to hear and determine any issue relating to the entitlement of any party to the proceedings to bring or contest the proceedings in advance of the hearing and determination of the proceedings by that or any other Tribunal. Rule 6 of the Tribunal's Rules of Procedure is the Rule which gives effect to that provision.

Rule 6 provides:

"A Tribunal may at any time before the hearing of an Originating Application on the application of a party made by notice to the Secretary or of its own motion, hear and determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the Originating Application relates. A Tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties, giving them an opportunity to submit representations in writing and to advance oral argument before the Tribunal. "

The Appellant says the question as to whether the Appellant could show that he was going to succeed under Section 1 of the Act was not a question which related to the entitlement to bring proceedings. Accordingly, this was not a case where the Chairman had power under Rule 6 to hear the matter on his own. If the Chairman had thought that the case looked odd or was in some way not a genuine complaint, then it would open to the Tribunal to have asked for a pre-hearing review to have been carried out. The purpose of such a pre-hearing review is to enable the Tribunal to determine whether the case has any sensible prospect of success and to impose potential penalties upon an Applicant in relation to an application which it judges to deserve such a penalty. That was not the procedure which was invoked in this case. Indeed it is very unclear as to the basis on which the Industrial Tribunal Chairman purported to take jurisdiction. So it is said on behalf of the Applicant/Appellant that the Industrial Tribunal has erred in law. An Applicant in a race case is entitled to a determination by an Industrial Tribunal. Although Section 4 of the Industrial Tribunal's Act gives power in certain circumstances for a Chairman to sit on his own, that power does not extend to cases involving race, sex or disability discrimination. Accordingly, the Tribunal was wrong to have adjudicated on this complaint in the way in which it did, with the Chairman sitting alone.

On behalf of the Respondent to this appeal, it was argued that the word "entitlement" in Rule 6 should be given a wide meaning and that we should not seek to cut down the opportunities for Industrial Tribunal Chairmen to deal with cases in the way that occurred on this occasion. But Mr Pratt very properly accepted that as a result of the letter which was sent to the parties following the discussion which had been held, Mr Rey could have anticipated that at the next hearing the Tribunal were going to decide whether there was a prima facie case to go for a full hearing.

It seems to us here that there has been an error of law in the approach of the Industrial Tribunal in this case. We wish to emphasise the need for Tribunals to be slow to seek to identify preliminary points which relate to the entitlement of a party to bring or contest proceedings. Those words may be apt to cover cases where there is an issue as to whether an Applicant is or is not an employee and therefore competent to bring the proceedings, or whether the claim has been brought within time. It seems to us that if the Chairman was purporting to be acting under Rule 6, then what has happened in this case is that a preliminary issue has been identified which is not an issue which defines the entitlement of the Applicant to bring the proceedings, but constitutes a determination of part of the case which he is advancing.

This was not therefore a preliminary issue of the sort which is contemplated, either by Section 9(4) of the Act or by Rule 6 of the Tribunal Rules. Furthermore, it seems to us quite wrong that the learned Chairman should have defined the issue which was to be determined at this hearing in the way in which he did. The issue appears to be: can it be shown that there has been a disproportionate effect in the application to the Applicant of a condition. The word "show" is different from the word "proved" and it led, I have no doubt having been informed by both parties in this case, to confusion as to whether the Tribunal was proposing simply to decide whether there was a prima facie case which was fit to go before a full panel.

The issue should have been correctly and fully identified so that none of them was taken by surprise, that was not done in this case, we are satisfied. Furthermore, in any event, the Tribunal would have had no power to have carried out such a task. The only opportunity the Tribunal has for considering the matter at an interlocutory stage was either through the pre-hearing review mechanism, or, exceptionally, under the powers conferred by Rule 13(2)(d) and (e).

Race, sex and discrimination cases are to be heard and determined by a full panel of the Tribunal for very clear reasons of policy. The EAT wishes to make it plain that no shortcuts are to be used in order to try and dispose of their heavy workload. There is a need for a full panel to be convened to hear and determine each aspect of such a complaint. This is a case where there has been an obvious error of law. It must now go back to the Industrial Tribunal for a full hearing of the merits of this complaint. Whether it is an appropriate case for a pre-hearing review is not a matter on which we express any opinion. It would be open to the Post Office to apply for such if they thought that it was sensible, and no doubt the Tribunal would then hear and determine that Application. As we say, we give no indication if that would be an appropriate step or what the Tribunal would do were such an Application to be made. Proper directions should be given as to what issues are to be determined at the first hearing if there is to be a split hearing on liability. But in all events, this case must be heard by a full panel. The appeal will be allowed to that extent.