MISS S ANDREW v THE LONDON BOROUGH OF HACKNEY [2002] UKEAT 0535_01_1403

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0535_01_1403

Case No Appeal No. EAT/0535/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS S ANDREWAPPELLANT

THE LONDON BOROUGH OF HACKNEYRESPONDENT

Before

Mr Justice Lindsay

Date 14 March 2002

[1]APPEARANCES For the Appellant MR DEEN TIYAMIYU (Representative) 92 Harrowgate Road Victoria Park London E9 5ED THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Miss S Andrew in the matter Miss Andrew v London Borough of Hackney . Today Mr Tiyamiyu has appeared for the Appellant, Miss Andrew. There are three proceedings that have, at one stage or another, been in play here. There is a case at the Employment Tribunal marked 340/99. There is another case at the Employment Tribunal which was one for sex discrimination (as opposed to race discrimination which is in play in 340/99) and there has been a Queen's Bench case in contract. All of them refer, one way or another, to the alleged failure of the London Borough of Hackney to provide a reference for Miss Andrew at a time when she had ceased to be in Hackney's employ.

[2]The history is that on 4 October 1999 Miss Andrew lodged an IT1 for "Race discrimination" (this is the case 340/99). Her employment had ceased over five years earlier in May of 1994. She said, in her originating application, that her employment was terminated pursuant to a Compromise Agreement; she averred that the Respondent had discriminated against the Applicant contrary to Section 1, read together with Section 4(2) of Race Relations Act 1976 . She said:

"Antecedent to and subsequent to the signing of the said Agreement, the Respondent expressly undertook to provide, on behalf of the Applicant, upon request a reference in an agreed form to any prospective employer."

She said that on 6 August 1997 the London Borough of Newham, who were considering whether to employ her, had asked Hackney for a reference for her but that Hackney had failed to supply one. She said:

"On 1 October 1997, pursued by the Personnel Manager for Newham Council, the Respondent confirmed that a request for a reference had been received, but were unable to provide a reference as no one employed by the Respondent was qualified to do so."

That was the nature of the IT1.

[3]On 21 October 1999 an IT3 was put in by Hackney. The matter went to a hearing on 2 February 2000. On 23 February 2000 a decision was given in 340/99. At that stage all that was decided was that the matter should be adjourned pending the determination of the Applicant's - that is Miss Andrew's - case against the Respondents in the Queen's Bench Division of the High Court of Justice. So, at that stage, the matter was simply adjourned. On 27 April 2000 the Employment Tribunal in the other, sex discrimination, case sent its decision to the parties. Miss Andrew had lost. On 12 May 2000 judgment in the Queen's Bench case was delivered by Mrs Justice Smith on the contractual claims as to a reference. Again, Miss Andrew failed. On 9 June 2000 a Notice of Appeal to the Employment Appeal Tribunal was put in in the other case, the sex discrimination case. On 27 November 2000 there was a restored hearing of 340/99, the race discrimination Employment Tribunal case. On 13 December 2000 the decision was given at the Employment Appeal Tribunal in the case

EAT/743/00

, which was the sex discrimination case, and all grounds on which Miss Andrew had relied were dismissed at the Preliminary Hearing and so the appeal on sex discrimination totally failed.

[4]Coming back to the case in front of us -340/99. On 28 February 2001 the decision in that case was sent to the parties. It was a unanimous decision of the Tribunal at Stratford under the Chairmanship of Mr B C Buckley. It was that the Tribunal had no jurisdiction to consider the Applicant's complaint of race discrimination having regard to the time limit contained in Section 68 of the Race Relations Act 1976 (three months).

[5]On 11 April 2001 a Notice of Appeal in 340/99 was received by the Employment Appeal Tribunal. It became

EAT/0535/01

. On 5 September 2001 Miss Andrew, by her representative, asked to withdraw the appeal in 0535/01. The letter said:

"In the light of two recent Court of Appeal judgments that post-employment discrimination is not covered by the Race Relations Act 1976, I have decided not to pursue the appeal as Ms Andrew's is complaining as an ex-employee of the respondent. Accordingly, Ms Andrew has asked me to withdraw her appeal. I would therefore be grateful if leave can be granted for the appeal to be withdrawn."

But only two days later, on 7 September, Miss Andrews's representative asked for 0535/01 to be stayed, pending a case, D'Souza , in the House of Lords. On 26 September 2001 it was indicated from the Employment Appeal Tribunal that the case was to be listed for a Preliminary Hearing. That is how it comes before us today.

[6]As for the question of a stay or general adjournment, in Adekeye v The Post Office

[1997] IRLR 105

the Court of Appeal held that a complaint of race discrimination could not be entertained where it relied by way of complaint wholly on events after the termination of the relevant employment. In Coote v Granada

[1998] IRLR 656

the European Court of Justice, seeing that protection against post-employment sex discrimination was an essential step in ensuring compliance with the Equal Treatment Directive , indicated that member states had to enable post-employment sex discrimination to be complained of. In Coote v Granada the complainant had a directive to fall back on – the Equal Treatment Directive - but so far as concerns race discrimination, there is, as yet, no underpinning of the domestic legislation by any European Directive. Accordingly, in D'Souza , which is a race discrimination case, the Court of Appeal indicated that it was bound by Adekeye to refuse the claim based on post-employment discrimination. Mr Tiyamiyu, has told us that the Committee of the House of Lords has finally granted full leave for the D'Souza case to go to the House of Lords and, indeed, there may be other cases, for example, G P Jones v 3M Heathcare & Others that may, perhaps, join it.

[7]Notable features in Miss Andrew's case are these. First of all, her IT1 was five years after the employment had ceased. It was over two years after the event complained of, which was in October 1997. As a complaint of race discrimination it was wholly unparticularised. The only mention of race or discrimination is that passage in the originating application that we have already cited. Lastly, the events here have been trawled over in Queen's Bench and in the Employment Tribunal already without any success on Miss Andrew's part. Even if Mr D'Souza succeeds in the House of Lords, it is going to be an uphill struggle (to put it mildly) for Miss Andrew to overcome those other features.

[8]However, it is a feature of the present case that the Tribunal indicated at the earlier stage, in February 2000, in the earlier decision, that it would have been inclined to have found it just and equitable to extend time to enable the application to proceed. That is to be found at paragraph 8(5) of the earlier decision of February 2000 when the Tribunal merely adjourned the case. The Chairman, at that stage, and, indeed, the Lay Members, were exactly the same persons as they were at the later hearing in November 2000.

[9]Having regard to the possibility that the Employment Tribunal would see it as appropriate to extend time, the fact that Miss Andrew waited for two years and more before complaining after the event, cannot, of itself, debar her from pursuit of her claim. Accordingly, although we see immense difficulties in Miss Andrew's way, we see it appropriate, at this stage, to stay the case to await the House of Lords decision in D'Souza . Mr Tiyamiyu has indicated that if Mr D'Souza fails (and, of course, to be fair to Mr Tiyamiyu it will have to be a matter to be considered after the judgment is given so that the precise terms of the failure can be examined) but if, in broad terms, Mr D'Souza fails, the appeal will be dropped. We do not hold him to that, but it is a helpful indication so that time will not be wasted in future, but, simply coming to the matter of the day, we stay this case pending the decision of the House of Lords in D'Souza . As soon as that is available, Miss Andrew's representatives are asked to indicate to the Employment Appeal Tribunal how they intend to proceed.