MR K E BADIBANGA v OTLEY COLLEGE [2001] UKEAT 1331_99_2111
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT JUDGE PETER CLARK This is an appeal by Mr Badibanga, the Applicant before the Bury St Edmonds Tribunal sitting on 26 th May 1999, against that Tribunal's decision promulgated with Extended Reasons on the 11 th August 1999, that the Tribunal did not have jurisdiction to entertain his complaints of unlawful racial discrimination brought against the Respondent, Otley College.[2]The Appellant commenced these proceedings by an Originating Application presented on about 17 th December 1998. The nature of the Appellant's case, so he told the Tribunal at Bury (reasons: paragraph 6), is encapsulated at paragraph 1 of the particulars of complaints annexed to that application which reads " 1.0 By reason of incompetence and inexperience, Bernard Cole; Manager and Lecturer at the Centre for Business and Management, hence Otley College;1.1 Having failed to provide myself with proper guidance and support to the meaning under Section 28 of the Act at the expense of my self-employment activity since the beginning of my training in October 19961.2 Discriminated against myself in contravention of both Section 1.1(a) and 1.1(b) of the Act and;1.3 Undertook on the 17 th September 1998 to aid in contravention of the provisions under Section 33 of the Act, such discriminatory practices by his subordinates Michael Bowden and Peter Horsfall in whose instance I complained about on the said 17 th September 1998." He sought to bring his claim within the jurisdiction of the Employment Tribunal on the basis that the college was a qualifying body within the meaning of Section 12 of The Race Relations Act 1976 .[3]By their Notice of Appearance dated 30 th December 1998, the Respondent took a point on jurisdiction. They contended that Section 12 did not apply to them because by virtue of Section 12(3), Section 12(1) did not apply to discrimination rendered unlawful by Section 17 of the Act.[4]On 18 th March 1999, a chairman directed that the question of jurisdiction should be heard as a preliminary issue. Hence the hearing on 26 th May. Section 12 of the Act provides " (1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, 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 . . . . . . (3) Subsection (1) does not apply to discrimination which is rendered unlawful by Section 17 or 18" Section 13 provides " (1) It is unlawful for a person to whom this subsection applies in the case of an individual seeking or undergoing training which would help to fit him for any employment to discriminate against him (a) in the terms on which that persons affords him access to any training courses or other facilities; or (b) by refusing or deliberately omitting to afford him such access; or (c) by terminating his training . . . . . . (3) Subsection (1) does not apply to – (a) discrimination which is rendered unlawful by Section 17 or 18 Section 17, which falls within Part III of the Act, provides as far as is material It is unlawful in relation to an educational establishment falling within 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 - … (c) where he is a pupil of the establishment – (i) in a way that affords him access to any benefits, facilities or services or be refusing or by deliberately omitting to afford him access to them; or (ii) by excluding him from the establishment or by subjecting him to any other detriment Sections 12 and 13 fall within Part II of the Act, in respect of which redress lies in the Employment Tribunal (Section 54). Section 17 falls within Part III of the Act, enforcement of rights under which part fall within the jurisdiction of the County Court (Section 57).[5]On the question as to whether the case fell within Part II or Part III of the Act the Tribunal found 1) that the Respondent was a college of further education and an institution within the further education sector within the meaning of Section 91(3) of The Further & Higher Education Act 1992 2) that Section 17(c) of 1976 Act rendered unlawful discrimination against a pupil of an educational establishment. A pupil is defined in Section 17A of the Act as "any person who receives an education at a . . . institution to which that Section applies". "Education" is defined in Section 78 of the 1976 Act as including "any form of training or instruction." 3) that the Appellant's relationship with the Respondent college was one of a pupil receiving education 4) accordingly his complaint was covered by Section 17 of the 1976 Act to the exclusion of Sections 12 and 13 and was thus justiciable before the County Court by virtue of Section 57. The Tribunal then went on to order the Appellant to pay costs to the Respondent in the sum of £25. An application by the Appellant for a review of that decision was summarily dismissed by the Chairman by a letter dated 10 th June 1999.[6]Against the substantive decision the Appellant appealed by a Notice dated 16 th September 1999. The appeal was stayed by order of the Registrar dated 7 th April 2000 pending the outcome of various other proceedings commenced by the Appellant in other courts. That stay was finally lifted on 20 th July 2001 and the case listed for this preliminary hearing, held to determine whether the appeal raises any arguable point(s) of law to go to a full hearing at which both parties will be present.[7]Mr Badibanga does not appear today for reasons of finance. We have therefore considered the appeal on the voluminous papers placed before us. In support of the appeal Mr Badibanga has lodged, as his skeleton argument, a copy of a skeleton argument dated 27 th July 2001 which he has apparently lodged in proceedings brought by him against the Employment Service and Others, presently pending in the Court of Appeal.[8]He contends there that he is not a student and therefore presumably not a pupil of the college within the meaning of Section 17(c) of the 1976 Act. There is considerable overlap between his contention in this case and his argument that he was not in full-time education for the purpose of drawing state benefit in judicial review proceedings heard and dismissed by Popplewell J on 10 th October 1994. On the other hand, at page 14E and 16B of his skeleton argument, he appears to be contending that the behaviour by officers of the college about which he complains is an independent tort that the County Court, in particular the Central London County Court, may entertain. That is the effect of the Tribunal's ruling now under appeal.[9]Having sought to discern from the prolix submissions made by Mr Badibanga some arguable error of law on the part of the Tribunal we find ourselves quite unable to do so. In these circumstances it follows that this appeal must be dismissed.