DR Y TEINAZ v LONDON BOROUGH OF WANDSWORTH [2001] UKEAT 0679_01_2211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0679_01_2211Case No Appeal No. EAT/0679/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR Y TEINAZAPPELLANTLONDON BOROUGH OF WANDSWORTHRESPONDENT
Before
Mr Justice LindsayDate 22 November 2001
[1]APPEARANCES For the Appellant MR F EDWARD JNR Non Practising Barrister Instructed by: Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Dr Yunes Teinaz in Teinaz v The London Borough of Wandsworth . Today Mr Fred Edward Junior has appeared for Dr Teinaz.[2]The matter can be taken fairly shortly. On 5 June 2000 Dr Teinaz presented an IT1 for victimisation, racial discrimination, bullying and harassment. He said he had been employed down to the 31 March 1999 but that he had been victimised by an employee of Wandsworth a good deal later, namely on 25 May 2000.[3]On 28 June 2000 Wandsworth put in its IT3 and it took the point that the Race Relations Act did not protect ex employees so that the Employment Tribunal had no jurisdiction and it added that on the facts what the Wandsworth employee had done could not in any event, they said, amount to racial discrimination.[4]On 26 March 2001 the Employment Tribunal ruled upon the jurisdiction point. It was the decision of the Chairman alone, Mr Snelson. The decision was as follows:
"In exercising of my powers under Rule 13(2)(d) of the Rules of Procedure set out in the 1 st Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, I hereby strike out the Originating Application in this case."
At paragraph 3 of the Extended Reasons the Chairman writes:
"The decision of the Court of Appeal in Adekeye v The Post Office (No.2) [1997] IRLR 105 establishes that the claim that the Applicant is seeking to bring is outside the Tribunal's jurisdiction, in that section 4 of the 1976 Act does not extend protection from discrimination to ex-employees. Short of the House of Lords, the Adekeye authority cannot be challenged, and there is no prospect in the foreseeable future of that decision being overturned."
It follows that the Applicant's complaint is unsustainable in law and, as such, hopeless. Accordingly, in my discretion, I dismiss it."[5]On 4 May there was a Notice of Appeal from Dr Teinaz that sought to raise 3 points but only one of them is now pursued by Mr Edward and it is that the Employment Tribunal's decision, which was based on the Court of Appeal's decision in Adekeye, is erroneous in that it is inconsistent with the European Court of Justice judgment in Coote v Granada Hospitality Ltd [1998] IRLR 656 . But, with respect to the argument that we have received, we do not see Adekeye as being inconsistent with the European Court of Justice's decision in Coote . In Coote the European Court of Justice reached the decision that it did because the complainant there was underpinned by the existence of the Equal Treatment Directive. It was a claim for sex discrimination and victimisation of a sexual character. The European Court of Justice took the view that if post-termination events could not be relied upon in a claim for sex discrimination that would effectively undermine the efficacy of the Equal Treatment Directive. The existence of the Equal Treatment Directive was absolutely crucial to the reasoning of the European Court of Justice in the Coote case at the European Court of Justice level.[6]When the matter came back to this country at the Employment Appeal Tribunal, again the reasoning of the Employment Appeal Tribunal in Coote was very much determined by the existence of a Directive because the point was capable of being taken that there was ambiguity at a grammatical level in the domestic legislation and that the existence of the Directive indicated the way in which the ambiguity should be resolved.[7]There are other cases than Adekeye in this area. There is the case of Rhys Harper v Relaxion Group Plc [2001] IRLR 460 and although Mr Edward Junior has not referred to it there is an even more recent case in the Court of Appeal, D'Souza . The reasoning of all those cases indicates how important it is to find whether there is Directive applicable to the case. Here, where what is asserted is victimisation of a racial character, there is as yet no Directive underpinning the claimant's position. I think it is contemplated that by 2003 there might be one but there is none yet.[8]Mr Fred Edward Junior relies on the observations made by Lord Bingham in Anyanwu v South Bank Students' Union [2001] IRLR 305 where Lord Bingham said:
"Since the Race Relation Act 1976 is one of a trio of acts with the Sex Discrimination Act 1975 and Disability Discrimination Act 1995 which contain similar statutory provisions although directed to different forms of discrimination it is legitimate if necessary to consider those acts in resolving any interpretation that may arise on this Act."
But there is nothing in that dictum that enables any court to say that the Coote reasoning, which depends so heavily on the existence of a Directive to arrive at the conclusion at which it arrived, has necessarily to be applied to cases where there is no corresponding Directive.[9]What it comes to is that in our view the decision of the Chairman given in the Extended Reason of 26 March is entirely correct and we see no arguable error of law on his part. Accordingly, in our view the appeal must be dismissed even at this preliminary stage.