MR FRANKLYN MACAULAY v (1) THE LONDON BOROUGH OF HACKNEY (2) MS M CHALLONOR [2000] UKEAT 838_00_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 838_00_2510Case No Appeal No. EAT/838/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR FRANKLYN MACAULAYAPPELLANT(1) THE LONDON BOROUGH OF HACKNEY (2) MS M CHALLONORRESPONDENT
Before
His Honour Judge J R ReidDate 25 October 2000
[1]APPEARANCES For the Appellant MS C RAYNER (of Counsel) Islington Law Centre 161 Hornsey Road London N7 6DU JUDGE REID QC : This is a preliminary hearing on an appeal ex parte by which Mr Macaulay seeks to challenge a decision of an Employment Tribunal sitting at London (North) on 9th May 2000. The tribunal held that it had no jurisdiction to consider a complaint of unlawful race discrimination and so dismissed the complaint and further held that it would not be just and equitable to allow the applicant to amend his Originating Application to add a complaint of unlawful sex discrimination. The first of those points arises in this way: Mr Macaulay left his employment with the London Borough of Hackney in circumstances which gave rise to a successful claim for unfair dismissal and an unsuccessful claim for race and sex discrimination. After his dismissal but before determination of those claims he applied for another job with another London Borough, Camden, who asked, among other things, for a reference from Hackney as the former employer. A reference was given by the second respondent, as a result of which, to quote Camden's letter:
"Having had feedback from one of your referees, I regret that we are unable to proceed further with your appointment as Performance Analyst."
[2]The applicant then issued a claim against Hackney in which he claimed, see Box 1 of the IT1: "VICTIMISATION" In paragraph 2 of the grounds of application he went on to claim that Ms Challoner, his Line Manager, racially and sexually discriminated against him.[3]The hearing before the tribunal dealt with first of all the question of whether or not under the Race Relations Act 1976 a remedy existed and jurisdiction existed for a complaint of victimisation after the termination of employment. The tribunal held on the authority of Adekeye v The Post Office [1997] IRLR 105 that the 1976 Act did not cover persons who were no longer in employment and that therefore there was no jurisdiction to consider Mr Macaulay.[4]It is said before us that the Adekeye case now has to be looked at in the light of Coote v Granada Hospitality No. 2 [1999] IRLR 455 , in which, following a reference to Europe, it was held that the Sex Discrimination Act 1975 , which contains at the material point identical wording relating to victimisation, did apply to persons who alleged that they were discriminated against after the end of their employment, e.g., by provision of a discriminatory reference.[5]It was urged upon us that although Coote is an Employment Appeal Tribunal decision, in the light of the European dimension to that decision, the tribunal should have followed Coote rather than Adekeye , notwithstanding that the decision in Adekeye at first blush would appear to be binding on an Employment Tribunal and the Employment Appeal Tribunal.[6]This is a matter which has raised its head from time to time in various sets of papers that we have seen in the Employment Appeal Tribunal. There is plainly a serious issue that needs to be determined. One course would be simply for us to say that as we are bound by the Court of Appeal decision in Adekeye there is no arguable point that can properly be decided in the Employment Appeal Tribunal and therefore at this preliminary stage we should dismiss the appeal in effecting allowing the appellant to go to the Court of Appeal to get the Court of Appeal to sort the problem out. We do not think that that is an appropriate way of dealing with it. Apart from anything else, it seems to us that the Court of Appeal is entitled to the benefit of a decision from the Employment Appeal Tribunal following proper argument on both sides and the production of a fully reasoned judgment. In those circumstances, so far as that point is concerned, we direct that the matter should go to a full hearing.[7]There are passages in the skeleton argument before us relating to Articles 6 and 9 of the European Convention on Human Rights which do not, at least so far as I personally am concerned, seem particularly attractive, but this is not a case where we can sensibly direct some form of limitation on the way in which the argument is conducted before the Employment Appeal Tribunal.[8]The second point is that the appellant sought to amend his Originating Application to claim sex discrimination but, the tribunal refused him leave to do so. The conclusion, which the tribunal reached, is set out in particular at paragraphs 11 and 12 of the extended reasons in these terms:
"11. Considering the degree of prejudice that would accrue to the parties dependent upon the decision made by the Tribunal, if the application were to be granted the Respondents would be at risk against a claim which they did not anticipate they had to face. This is not a particularly substantial prejudice in this case. There are no additional facts for them to deal with in that the act complained of is common to the allegations of both sex discrimination and race discrimination. If the application were to be refused then the Applicant would not necessarily be deprived of a remedy. He could go to the County Court with a claim for negligent misstatement or breach of contract and it may be that having regard to the way in which the Originating Application was drafted he might consider whether he has a claim against his advisors. 12. Weighing up all the factors, the Tribunal was particularly influenced by the delay and lack of explanation for it, and by the extent of the Applicant's knowledge and awareness of his situation and his rights and the extent to which he had access to legal advice. In all the circumstances therefore the Tribunal found that it would not be just and equitable to amend the Originating Application."
[9]There have been attempts to explain the delay before us. That of course must be limited by the evidence before the tribunal. But it seems to us that there is a case which should be argued on both sides as to whether the tribunal so far erred in the exercise of its discretion in refusing leave to amend on the grounds on which it did when there was no prejudice observable and when the factual material was going to have to be investigated in any event, that the matter should go for a full inter partes hearing. In those circumstances, it seems to us the less said about the merits or demerits of the appeal the better.[10]We will direct that the matter goes for a full hearing. We will direct that it be listed for one day, and that it is a proper case to be put in Category B.