(1) THE WOLFSON INSTITUTE (2) MS S SCOTT (3) MS S MCDONALD v (1) MRS E MENSAH (2) NORTHWICK PARK HOSPITAL (3) MS B HOPKINS [2000] UKEAT 24_00_2001

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 24_00_2001

Case No Appeal No. EAT/24/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

(1) THE WOLFSON INSTITUTE (2) MS S SCOTT (3) MS S MCDONALDAPPELLANT

(1) MRS E MENSAH (2) NORTHWICK PARK HOSPITAL (3) MS B HOPKINSRESPONDENT

Before

Mr Justice Charles Mrs J M Matthias Mr N D Willis

Date 20 January 2000

[1]APPEARANCES For the Appellants MR SINCLAIR CRAMSIE (of Counsel) Instructed by: Ms N Gregory Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL For the Respondents THE FIRST RESPONDENT IN PERSON. THE SECOND AND THIRD RESPONDENTS NEITHER PRESENT NOR REPRESENTED MR JUSTICE CHARLES : The parties to these proceedings are Mrs Mensah, who is the applicant and five respondents(1) Barbara Hopkins,

(2) Susan Scott,

(3) Sandra McDonald,

(4) Northwick Park Hospital and

(5) the Wolfson Institute of Health and Sciences. Today we have before us an appeal by the second, third and fifth respondents, the second and third respondents being employees of the fifth respondent. (I say the fifth respondent, albeit that the evidence shows that the fifth respondent as named does not have legal identity of its own but is a department of a University, which in turn probably has no legal identity, but would be sued and acts through its governing body).

[2]The appeal is against a decision of an Employment Tribunal sitting at London (North), the Extended Reasons for which were sent to the parties on 17th November 1999. We also have before us a cross-appeal by Mrs Mensah, which I shall return to, but as I understand it, primarily relates to the refusal by the Chairman to review the decision relating to the second, third and fifth respondents.

[3]The decision appealed against related to all five respondents. The Employment Tribunal found that the proceedings were out of time as against the first and fourth respondents and refused to extend time pursuant to s.68 of the Race Relations Act 1976 (the 1976 Act). The result of that decision was of course that the first and fourth respondents no longer remained parties and there is no appeal against that decision. The first and fourth respondents indicated that they did not wish to appear on this appeal and have not done so.

[4]By way of background, this case came before this Tribunal on 29th July 1999. In my judgment given in respect of that hearing, I dealt with points raised by Mrs Mensah by reference to European Law in paragraphs 3, 4 and 7 to 10 of that judgment. They are in the following terms:

"3 The first decision relates to Mrs Mensah's claim described in the box in her IT1 as a "breach of EC Law"

. This decision affects all the Respondents and it was a decision by a Chairman sitting alone, that the Tribunal had no jurisdiction to hear that claim and therefore it should be struck out. 4 Mrs Mensah explained to the Chairman of the Tribunal that this claim was an alleged breach of the European Convention on Human Rights. To us she has explained that she is alleging a breach of that Convention and further, or alternatively, a breach of what she described as "the Social Chapter". One part of her grounds of appeal was that she was not given sufficient time before the Employment Tribunal in which to deal with this issue. We reject that point on two grounds. … 7 The claim that there has been a breach of EC law is an unparticularised claim but, as we understand it, is focused upon an alleged right that Mrs Mensah should be given access to education and/or training. As we understand the effect of the decision of the Employment Tribunal it is that it does not have jurisdiction to hear a free standing cause of action or complaint based upon what is described in the application as "a breach of EC law". For the purpose of analysis we divide the argument into two. 8 The first element of the argument is an alleged breach of the European Convention on Human Rights. So far as that is concerned the Human Rights Act 1998 has not yet come into force and, as appears from, for example, R v Director of Public Prosecutions, Ex parte Kebilene

[1999] 3 WLR 175

, or indeed from a reading of the Human Rights Act itself, the European Convention of Human Rights is not yet part of our law. Mrs Mensah has relied on Article 177 but that has no application to the European Convention on Human Rights. 9 Turning to her claim under what she describes as "the Social Chapter" which, as we understand it, describes European Community law dealt with by the European Court of Justice and thus coming into our law through the European Communities Act 1972. The issue is whether or not a Directive, or some other piece of European Community law or legislation founds a free-standing right before the Employment Tribunal. In our judgment it does not. However this does not mean that if a Directive, or other piece of European Community law, has direct, or indirect, effect in respect of Mrs Mensah's claim for racial discrimination and victimisation, it would be excluded from consideration by the Employment Tribunal. 10 It follows in our judgment, for slightly differing and extended reasons, that the conclusion reached by the Employment Tribunal that it, as a body conferred only with a statutory jurisdiction, has no jurisdiction to hear a free-standing claim based on what Mrs Mensah describes generically as EC law, is correct."

[5]Also in paragraph 36 of that judgment I said this:

"36 We record that it has been indicated to us that points as to jurisdiction may be raised on behalf of the Second, Third and Fifth Respondents. …"

It is those points as to jurisdiction which form the subject matter of this appeal.

[6]I turn now to deal with the relevant sections in the 1976 Act.

[7]However before doing so I mention that the underlying point is one which goes to the jurisdiction of an Employment Tribunal and as will become apparent from looking at the sections they give rise to the problems as to where claims relating to the same events (or substantially the same events) but against different types of institution should be brought. This is the consequence of the Act if (as in our judgment is the case) a claim against an Institution of type A can be pursued in an Employment Tribunal but a claim against Institution of type B relating to substantially the same events cannot because the Act provides that it is to be pursued in a designated County Court. It seems to us that it would be sensible for that position to be reviewed.

[8]On the facts of this case the problem could have arisen if the claim against the fourth respondent had not been held to be out of time.

[9]I now turn to look at the sections themselves. Sections 12, 13, 17A and 78 of the Race Relations Act 1976 provide as follows:

"12 Qualifying bodies (1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilities, engagement in a particular profession or trade to discriminate against a person- (a) in the terms on which it is prepared to confer on him that authorisation or qualification; or (b) by refusing, or deliberately omitting to grant, his application for it; or (c) by withdrawing it from him or varying the terms on which he holds it. (2) In this section- (a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification; (b) "confer" includes renew or extend. (3) Subsection (1) does not apply to discrimination which is rendered unlawful by section 17 or 18. 13 Persons concerned with provision of vocational training (1) It is unlawful in the case of an individual seeking or undergoing training which would help him fit him for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training do discriminate against him- (a) in the terms on which that person affords him access to any training course or other facilities concerned with such training; or (b) by refusing or deliberately omitting to afford him such access; or (c) by terminating his training; or (d) by subjecting him to any detriment during the course of his training. (2) Subsection (1) does not apply to- (a) discrimination which is rendered unlawful by section 4(1) or (2) or section 17 or 18; or (b) discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Act. … 17 Discrimination by bodies in charge of educational establishments It is unlawful, in relation to an educational establishment falling with column 1 of the following table, for a person indicated in relation to the establishment in column 2 (the "responsible body") to discriminate against a person- (a) in the terms on which it offers to admit him to the establishment as a pupil; or (b) by refusing or deliberately omitting to accept an application for his admission to the establishment as a pupil; or (c) where he is a pupil of the establishment- (i) in the way if affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or (ii) by excluding him from the establishment or subjecting him to any other detriment. TABLE ENGLAND AND WALES Establishment Responsible body 1. Education establishment maintained by a local education authority. 2. Independent school not being a special school. 3. Special school not maintained by a local education authority. 3A. Grant-maintained school. 3B. Institution within the further education sector (within the meaning of section 91(3) of the Further and Higher Education Act 1992). 4. University. 4A. Institution, other than a university, within the higher education sector (within the meaning of section 91(5) of the Further and Higher Education Act 1992). 5. Establishment (not falling within paragraphs 1 and 4A) education, being an establishment designated under section 24(1) of the Sex Discrimination Act 1975 for the purposes of paragraph 5 of the corresponding table in section 22 of that Act. Local education authority or … governors, according to which of them has the function in question. Proprietor. Proprietor. Governing body. Governing body. Governing body. Governing body.] Governing body. 17A Meaning of pupil in section 17 For the purposes of section 17 "pupil" includes, in England and Wales, any person who receives education at a school or institution to which that section applies. … 78 General interpretation provisions (1) In this Act, unless the context otherwise requires- "education" includes any from of training or instruction; …"

[10]Sections 54 and 57 deal with the jurisdiction of courts to hear cases under Part II and Part III, and are also relevant. They are as follows:

"54 Jurisdiction of employment tribunals (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 by virtue of Part II; or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant. may be presented to an employment tribunal. (2) Subsection (1) does not apply to a complaint under section 12(1) of an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment, or to a complaint to which section 75(8) applies . 57 Claims under Part III (1) A claim by any person ("the claimant") that another person ("the respondent")- (a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part III; or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the claimant, may be made the subject of civil proceedings in the like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty. (2) Proceedings under subsection (1)- (a) shall, in England and Wales, be brought only in a designated county court; and (b) shall, in Scotland, be brought only in a sheriff court. (3) As respects an unlawful act of discrimination falling within section 1(1)(b), no award of damages shall be made if the respondent proves that the requirements or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds. (4) For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head. (5) Civil proceedings in respect of a claim by any person that he has been discriminated against in contravention of section 17 or 18 by a body to which section 19(1) applies shall not be instituted unless the claimant has given notice of the claim to the Secretary of State and either the Secretary of State has by notice informed the claimant that the Secretary of state does not require further time to consider the matter, or the period of two months has elapsed since the claimant gave notice to the Secretary of State; but nothing in this subsection applies to a counterclaim. (6) In Scotland, when any proceedings are brought under this section, in addition to the service on the defender of a copy of the summons or initial writ initiating the action a copy thereof shall be sent as soon as practicable to the Commission in a manner to be prescribed by Act of Sederunt."

[11]Section 17 is in Part III of the Act whereas sections 12 and 13 are in Part II thereof. It follows from sections 54 and 57 that an Employment Tribunal does not have jurisdiction to hear a claim based on section 17 of the Act. It is the Appellants' case that the claims made against them are based on section17 and therefore the Employment Tribunal has no jurisdiction to hear them.

[12]Looking at sections 12, 13 and 17, it is immediately apparent that there is a considerable overlap between the types of conduct rendered unlawful by sections 12(1), 13(1) and 17. For example, one only has to compare subsection (a) in these three sections to see that they are all concerned with the same type of conduct and, therefore that the purpose underlying all the sections has a common theme.

[13]Section 12(3) and section 13(2) provide expressly that sections 12 and 13 do not apply to discrimination which is rendered unlawful by section 17. In our judgment it follows as a matter construction of the Act that if a complaint is covered by section 17 it then does not fall within sections 12 and 13. Therefore, the crucial issue to determine in this case is whether or not the complaint that Mrs Mensah makes in her IT1 against the second, third and fifth respondents is one which is based on section 17.

[14]The evidence before us indicates that the fifth respondent is part of a university and indeed, the Employment Tribunal accept and acknowledge that the claim relating to it is a claim against an educational establishment within section 17. That being the case, it seems to us as a matter of construction of the sections, that section 17 applies so long, of course, as the matter is covered by one of subsections (a) to (c) within section 17. Here, having regard to the definition of "education" and of "pupil" (see sections 78 and 17A), it is clear that the matter complained of is covered by (b). Further one can see that if the claim could have been brought under sections 12 or 13 it would also have been covered by subsections (1)(b) of those two sections.

[15]In our judgment as a matter of statutory construction the essential reason or basis for distinguishing or choosing between sections 12 and 13 on the one hand and section 17 on the other is the identity of the respondent to the proceedings. It follows in out judgment that because the fifth respondent is an educational establishment section 17 applies to the claim against it and therefore sections 12 and 13 do not.

[16]During her submissions Mrs Mensah, understandably, made a point that she was not suing the Governing Body of the fifth respondent. We say understandably because we would not expect Mrs Mensah to appreciate the fact that the Wolfson Institute and the University itself do not have legal identity. However the reality is that by suing the Wolfson Institute she is in truth suing the Governing Body of the University.

[17]The second and third respondents are employees of the fifth respondent (and thus the governing body of the University). The claim relates to their acts as such employees and are therefore based on section 33. The consequence of this is that the claims against the individuals are not free standing and are claims that they should be treated a doing an act made unlawful by section 17. The claims against them are therefore based on section 17 and fall within section 57(1)(b) with the consequence that they fall to be treated in the same way as the claim against the fifth respondent and the Employment Tribunal has no jurisdiction to hear them (see foe example Diakou v Unison

[1997] ICR 121

at127H to 128G)

[18]For the purposes of this appeal the relevant paragraph of the Extended Reasons is the last one:

" Sections 12, 13 and 17 of the 1976 Act The Fifth Respondent was an authority or body which could confer an authorisation or qualification which was needed for facilitating engagements in a particular profession or trade. It could not, however, accommodate the Applicant without the involvement of the Fourth Respondent whose representatives would be present at any selection interview and who would provide the necessary supervision in a hospital environment to cover the practical aspects of the course. The Fourth Respondent could not itself confer any such authorisation or qualification. It is our finding that the Fifth Respondent comes within the ambit of not only section 12 but also section 13. The Applicant was seeking training to repair any damage that might have been occasioned to her career in her previous employment. We do not believe that the Fourth Respondent would have come within section 13 because it did not of itself provide vocational training. We have been asked to consider whether the Tribunal is the proper venue for this application. Ms Gourgey has asked us to find that we have no jurisdiction and that the proper venue is the County Court. We have considered section 17 and find that the Applicant was not seeking to enter an educational establishment to pursue training of any length but rather that she was seeking on the ward supervision at a hospital which could put her career back on the road. That entry to the ward could only be secured via the Fifth Respondent. We find that the Tribunal does have jurisdiction to consider the complaint made by the Applicant against the Second, Third and Fifth Respondents."

The two most relevant sentences are:

"It is our finding that the Fifth Respondent comes within the ambit of not only section 12 but also section 13" and then: "

We have considered section 17 and find that the Applicant was not seeking to enter an educational establishment to pursue training of any length but rather that she was seeking on the ward supervision at a hospital which could put her career back on the road."

[19]It seems to us that that reasoning does not grapple with the essential point of distinction between sections 12 and 13 on the one hand and section 17 on the other, which, as we have explained, is the identity of the fifth respondent and whether or not it falls within the table contained in section 17. That is a pure matter of law and of construction.

[20]Secondly, and here there is common cause between Mrs Mensah and the respondents, in our judgment the second sentence we have highlighted is not founded on any evidence before the Employment Tribunal and is, indeed, contrary to the evidence before the Employment Tribunal.

[21]The evidence was that Mrs Mensah's application was or was treated as being an application to join the return to midwifery practice course. Mrs Mensah, by way of an application for review to the Chairman, pointed out that on that course she would be receiving training from the Wolfson Institute. Therefore, on its face, that sentence contains an error. That is a point also made by the respondents. We agree with it. Therefore, that finding of fact simply cannot stand.

[22]As we have said, it is, in our judgment, clear that the course for which Mrs Mensah applied was one which would render her a pupil at the relevant educational establishment and, therefore, section 17 applies. This has the consequence that sections 12 and 13 do not apply and therefore the claim has to be brought pursuant to section 57 and would have to be brought in the County Court rather than in the Employment Tribunal.

[23]This is a case which it is not necessary or appropriate for us to remit back to the Employment Tribunal. This is because the error of law is one of construction of the sections and the only issue on the finding of fact by the Employment Tribunal is one which the parties agree is not based on any evidence.

[24]It follows that we allow this appeal and dismiss the proceedings as against the second, third and fifth respondents. No application for costs has been made and therefore there is nothing for us to deal with on that. There will be no order for costs. I would, however, wish to add, briefly, matters which emerged during the course of Mrs Mensah's submissions. She pointed out to us that almost I think at the time this appeal arrived at her home she was putting pen to paper to write to the either the Employment Tribunal or to the Wolfson Institute to say that she was not going to pursue the proceedings further. It seems to us that that was a sensible course for her to adopt because she now has an explanation of the range of courses that can be offered. If and when she is able in the future, having regard to the stress under which she is now suffering, to apply for a course she has all the information and can make an application if she wants to.

[25]We add that it is difficult to see, given the matters raised in the IT1 as to how they give rise to a claim of discrimination under the Race Relations Act 1976 . As we understand Mrs Mensah's concerns, it was that she was unaware of the range of courses that she could apply for. She now knows that.

[26]Turning to Mrs Mensah's cross-appeal, the first part of it was concerned, as she said, with the refusal of the Chairman to review his decision relating to his description of the nature of the course she was applying for. I have already dealt with that point. I have indicated that we agree that that sentence contains an error. However that does not take one anywhere other than to a consideration of the construction of sections 12, 13 and 17, which I have also dealt with.

[27]Mrs Mensah also raised the following two points. The first was her point as to the application of European law or the need to amend the legislation. So far as the application of European law is concerned, that has already been dealt with within these proceedings by my earlier judgment. So far as the desirability of amending the statute is concerned, that does not give rise to any rights that Mrs Mensah can pursue before us. (However we repeat paragraph 7 hereof which deals with a different point of possible amendment).

[28]The second point Mrs Mensah raised in writing was a point as to the addition of the Secretary of State or others as parties to the proceedings. She did not pursue that before us orally today. It seems to us that there is no reasonably arguable point on those issues. Therefore, the consequence is that her cross-appeal is also dismissed. Again, there will be no costs so far as that is concerned.