MR J L MELBOURNE v THE MINISTRY OF DEFENCE [2002] UKEAT 522_00_1401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 522_00_1401Case No Appeal No. EAT/522/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J L MELBOURNEAPPELLANTTHE MINISTRY OF DEFENCERESPONDENT
Before
Mr Justice Maurice Kay Mr B Gibbs Mr K M YoungDate 14 January 2002
[1]APPEARANCES For the Appellant MR R DE MELLO Instructed By: Mr S Atkar Commission for Racial Equality Legal Services Dept 3rd Floor Lancaster House 67 Newhall Street Birmingham B3 1NA For the Respondent MR B CARR Instructed By: Ms F Walkingshaw The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS MR JUSTICE MAURICE KAY : The Appellant was a soldier for four years, having joined the Army in September 1999. It is beyond dispute that, as a person of mixed race, he was subjected to racial abuse. An Equal Opportunities Inquiry Team investigated his complaints and found a majority of them to be justified. On 29 July 1999 he received a letter from General Sir Michael Walker offering apologies for the fact that the Appellant had suffered "racially offensive language and behaviour during your Army service at the hands of certain senior NCOs". Shortly before that letter, the Appellant had been charged at a court-martial with two offences of absence without leave. They related to the periods 12 February to 18 June 1997 and 16 September 1997 to 3 August 1998. He pleaded guilty to both charges. The Court accepted that the first period of absence had been caused by racial abuse but found that the second had not. It had resulted from personal and family problems. The sentence was dismissal from Her Majesty's Service and detention for 112 days.[2]On 28 October 1999, the Appellant filed an application in an Employment Tribunal in Cardiff complaining that he had been unfairly dismissed and had been discriminated against on racial grounds. On 1 February 2000 an Employment Tribunal ruled that it had no jurisdiction to hear either complaint. The present appeal seeks to challenge those rulings. The appeal requires consideration of numerous statutory provisions and we shall deal with unfair dismissal and race discrimination separately. (1) Unfair dismissal By section 138(3) of the Employment Protection (Consolidation) Act 1978 the statutory protection against unfair dismissal did "not apply to service as a member of the naval, military or air forces of the Crown" although there was provision for a limited exception in relation to reservists. In 1993 the Trade Union Reform and Employment Rights Act (TURERA) was enacted. Section 31(1) provided that, from a day to be appointed , "In section 138 of the 1978 Act (application of Act to Crown employment) for subsection (3) (service in the armed forces excepted) there shall be substituted – '(3) This section applies to service as a member of the naval, military or air forces of the Crown but only in accordance with section 138A …'." If, within its short life, this provision had been brought into effect, members of the services would have been able to avail themselves of protection against unfair dismissal. However, it remained dormant until it was repealed by Schedule 3 of the Employment Rights Act 1996 (ERA).[3]The ERA addressed the issue with conspicuous ambivalence. On the one hand, section 192(1) provided that, from a day to be appointed , section 191 (which extends protection to Crown employment) "(a) applies to service as a member of the naval, military or air forces …" On the other hand, however, paragraph 16 of Schedule 2, under the heading "Transitory Provisions" provides:
"(1) If section 31 of [TULRA] has not come into force before the commencement of this Act, this Act shall have effect until the relevant commencement date as if for section 192 there were substituted - '192 Armed forces (1) section 191 - (a) does not apply to service as a member of the naval, military or air forces of the Crown … ' (2) The reference in sub-paragraph (1) to the relevant commencement date is a reference - (a) if an order has been made before the commencement of this Act appointing a day after that commencement as the day on which section 31 of [TURERA] is to come into force, to the day so appointed, and (b) otherwise, to such day as the Secretary of State may by order appoint."
[4]The present position is that, section 31 of TURERA not having been brought into force before its repeal by ERA, and no commencement order having been made under paragraph 16(2)(b), section 192 of ERA has effect as stated in paragraph 16(1) until a date to be appointed and servicemen and women remain unprotected against unfair dismissal.[5]The Employment Tribunal steered its way through that paper chase and concluded that it had no jurisdiction. It is beyond dispute that that was a correct interpretation of the statutory material before the Tribunal. The present appeal seeks to circumvent it by reliance upon the Human Rights Act 1998 which came into force on 2 October 2000, several months after the Employment Tribunal hearing. However, there is a very large obstacle in the way of such a course. In R v Lambert [2001] 3 WLR 206 the House of Lords held that, apart from the limited exceptions in section 22(4), the Human Rights Act does not apply to things which occurred before 2 October 2000 and that decisions of courts and tribunals made before that date are not to be impugned under section 6 on the ground that the court or tribunal acted in a way incompatible with Convention rights. In reaching this conclusion in relation to a criminal appeal, their Lordships placed express reliance on the civil appeal of Wilson v First County Trust Ltd (No 2) [2001] 3 WLR 42 , CA, in which Sir Andrew Morritt VC said (at page 51):
"Nor should the decisions of courts and tribunals made before those sections had come into force be impugned on the ground that the court or tribunal was said to have acted in a way which was incompatible with Convention rights."
In the days since we heard submissions in the present appeal, it has come to our notice that a majority of a slightly differently constituted House of Lords has expressed the view that the decision in Lambert was erroneous. However, it concluded (Lord Hope of Craighead dissenting) that it would be wrong to depart from it: R v Kansal (no 2), 29 November 2001, reported in The Times , 4 December 2001. In our judgment, this line of authority is fatal to the Appellant in the present appeal, unless he can rely on section 22(4), which, on his behalf, Mr de Mello seeks to do.[6]The relevant provisions of the Human Rights Act are in the following terms:
"6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. … 7(1) A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may – … (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is … a victim of the unlawful act. … 22(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."
The crucial concept, therefore, is "proceedings brought by or at the instigation of a public authority" because it is only in relation to those that the provision for retrospectivity founds an exception to the Lambert principle. Mr de Mello's submission is that the present issue relates to proceedings - the charging, prosecution, court-martialling and dismissal of the Appellant - which were brought by or at the instigation of the Ministry of Defence. On behalf of the Ministry, Mr Carr submits that what is in issue in the present appeal is not any act or omission of the Ministry but the decision of the Employment Tribunal to the effect that it had no jurisdiction in respect of the Appellant's claim. The Employment Tribunal is a public authority for the purposes of section 6, 7 and 22 (section 6(3) (a)) but the legal proceedings which are the subject of this appeal were not "brought by or at the instigation of" the Employment Tribunal. They were brought and instigated by the Appellant himself. Mr de Mello attempts to deal with these submissions by reference to Preiss v General Dental Council [2001] 1 WLR 1926 . However, that case is clearly distinguishable from the present case, just as it was distinguishable from Lambert . As Lord Cooke of Thorndon observed (at page 1934), the appellant in Preiss benefited from the retrospectivity of section 22(4):
"The General Dental Council is a public authority within the meaning of sections 6(1) and 7(1). It is the action of the council, in bringing disciplinary proceedings under a system allegedly not complying with article 6(1), of which he complaints. In R v Lambert there was no question of the prosecuting authority having acted unlawfully."
In other words, in Preiss the General Dental Council was in the equivalent position of both the Ministry of Defence and the Employment Tribunal. In Lambert , on the other hand, there was a separation between the prosecuting authorities and the Crown Court, whose decision was sought to be impugned on appeal.[7]In our judgment it is beyond doubt that, in the circumstances of the present appeal, it cannot be said that section 22(4) is engaged because of proceedings brought by or at the instigation of the Ministry of Defence. The attempt to rely on section 22(4) is caught by Lambert and, for the reasons to which we have referred, Preiss is clearly distinguishable. It follows that the decision of the Employment Tribunal to the effect that members of the armed forces fell outside the protection against unfair dismissal was not only correct at the time, because of the self-evident provisions of the employment protection legislation; it is not susceptible to retrospective challenge by reference to sections 7(1)(b) and 22(4) of the Human Rights Act.[8]That finding effectively disposes of the unfair dismissal appeal. However, we feel bound to add that, even if the Human Rights Act had applied to this appeal, we do not consider that the Appellant would have been able to establish a breach of a Convention right. Mr de Mello pinned his primary hope on article 6(1) and the right to a fair trial, his argument being that the Appellant's right of unimpeded access to the courts is infringed by the armed services exception. However, in Pellegrin v France (8 December 1999) the European Court of Human Rights said:
"64 … in order to determine the applicability of Article 6.1 to public servants, whether established or employed under contract, the Court considers that it should adopt a functional criterion based on the nature of the employee's duties and responsibilities. In so doing, it must adopt a restrictive interpretation, in accordance with the object and purpose of the Convention, if the exceptions to the safeguards afforded by Article 6(1). 65 The Court notes that in each country's public-service sector certain posts involve responsibilities in the general interest or participation in the exercise of powers conferred by public law. The holders of such posts thus wield a portion of the State's sovereign power. The State therefore has a legitimate interest in requiring of these servants a special bond of trust and loyalty. … 66 The Court therefore rules that the only disputes excluded from the scope of Article 6.1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interest of the State or the public authorities. A manifest example of such activities is provided by the armed forces and the police . …"
Mr Carr submits that to exclude members of the armed forces from access to an Employment Tribunal in order to complain of unfair dismissal is entirely legitimate in view of Pellegrin. In our judgment, this is correct.[9]In addition to Article 6, Mr de Mello seeks to rely on Articles 3, 8 and 14. He realistically accepts that he is in a weak position on Article 3 – the prohibition of torture and inhuman or degrading treatment or punishment – because his allegations fall short of the minimum level of severity required. His case on Article 8 is presented on the basis of an analogy with Smith and Grady v United Kingdom (E Ct HR, 27 September 1999). However, the issue there – the position of homosexuals in the armed forces – raised the right to respect for private life in a way which the issue in the present case - identified by Mr de Mello as race (and therefore strictly more referable to the second ground of appeal) – does not. Finally, Article 14, which is concerned with freedom from discrimination in the enjoyment of Convention rights, is not free-standing and if, as we hold, no other Convention rights are established or brought into play by the armed services exception to unfair dismissal protection, reliance upon it cannot succeed. (2) Race discrimination[10]We now turn to the second statutory labyrinth which calls for our attention. Originally, complaints by members of the armed forces of race discrimination could not be made to Industrial Tribunals. The only avenue of redress was pursuant to the appropriate service redress procedure. This was the effect of section 75(9) of the Race Relations Act 1976 as originally enacted. However, section 75 was amended by section 23 of the Armed Forces Act 1996 with the effect that the relevant parts of the section now read as follows:
"(8) This subsection applies to any complaint by a person ('the complainant') that another person – (a) has committed an act of discrimination against the complainant which is unlawful by virtue of section 4; or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant, if at the time when the act complained of was done the complainant was serving in the armed forces and the discrimination in question relates to his service in those forces. (9) No complaint to which subsection (8) applies shall be presented to an employment tribunal under section 54 unless – (a) the complainant has made a complaint to an officer under the service redress procedures applicable to him and has submitted that complaint to the Defence Council under those procedures; and (b) the Defence Council have made a determination with respect to the complaint. (9A) Regulations may make provision enabling a complaint to which subsection (8) applies to be presented to an employment tribunal under section 54 in such circumstances as may be specified by the regulations, notwithstanding that subsection (9) would otherwise preclude the presentation of the complaint to an employment tribunal. (9B) Where a complaint is presented to an employment tribunal under section 54 by virtue of regulations under subsection (9A), the service redress procedures may continue after the complaint is so presented."
These amendments were brought into force by the Armed Forces Act 1996 (Commencement No 3 and Transitional Provision) Order 1997 , paragraph 2 of the Schedule to which provides that they shall not have effect in relation to any complaint of discrimination where the act complained of was done before 1 October 1997. Thus, in relation to acts which occurred prior to 1 October 1997, an individual is limited to the service redress procedure but, in relation to acts occurring after that date, he may proceed in an employment tribunal but only if he satisfies the new section 75(9) by first using the service redress procedure. The relevant service redress procedure is set out in section 180 of the Army Act 1955 and the Queen's Regulations. It provides for complaint to an officer who refers it to a superior officer for investigation. If the complainant is dissatisfied with the outcome, he may complain to the Defence Council. If the complaint relates to a court-martial, section 180 does not apply but alternative remedies are set out in section 113 (review of finding a sentence by the Defence Council). Similarly, in relation to summary findings and awards, section 115 provides for a review.[11]In the present case, the Employment Tribunal considered that the race discrimination of which the Appellant was complaining fell into two distinct parts:(1) acts of harassment by other soldiers, particularly NCOs, between June 1996 and July 1997 which, it is alleged, caused the two periods of absence without leave; and(2) the way in which the Ministry of Defence and those for whom it is responsible processed the Appellant's complaint and court-martialled and dismissed him for being absent without leave. The Tribunal rejected a submission that (1) and (2) were parts of one continuous act of discrimination so as to fall within section 68(7)(b) of the Race Relations Act which provides: (b) any act extending over a period shall be treated as done at the end of that period." This, when applicable, causes the three month limitation period to commence only at the end of a continuous act of discrimination. The Tribunal said:
"We are satisfied that this case is not concerned with an extended 'act' in the singular. It is concerned with two separate sets of 'act' which are different in nature and were committed by different people. The pre-October 1997 acts were acts of harassment, bullying, abuse and assault committed by individuals for which the respondents may or may not have had vicarious, or secondary, responsibility. The post-October 1997 acts were alleged acts of discriminatory process and omission committed by the respondents themselves. … They are linked by the absence without leave in that it was allegedly caused by the pre-October 1997 acts and led to the alleged post-October 1997 acts, but this in our view cannot convert them into 'any act', that is one act extending over a period."
In our judgment this was an unassailable finding which cannot be categorised as perverse or otherwise legally erroneous. On the basis of it, the Employment Tribunal then concluded that it had no jurisdiction to deal with the pre-October 1997 allegations because jurisdiction was statutorily excluded until the amendments contained in the Armed Forces Act 1996 were brought into operation by the 1997 Order.

(b) "

[12]We have to consider whether these rulings contain any legal error. To the extent that Mr de Mello seeks to rely on the Human Rights Act to produce a different result, his submission fails for the same reasons which we set out in relation to the unfair dismissal claim. On that basis, and having regard to our endorsement of the finding against a continuous act of discrimination, we have no doubt that the Tribunal was and is correct to hold that it has no jurisdiction in relation to the pre-October 1997 allegations.[13]So far as the post-October 1997 allegations are concerned, Mr de Mello submits that resort to the service redress procedure cannot be a requirement when the complaint is, in effect, about the way in which that procedure processed his previous complaint. Although that submission has policy attractions, it runs into the insurmountable obstacle of section 75(9). It is in clear and unambiguous terms. A member of the armed forces can only present a complaint of race discrimination to an Employment Tribunal if he has made complaint to an officer under the appropriate procedure and has submitted that complaint to the Defence Council and the Defence Council have made a determination with respect to it. In the absence of compliance with section 75(9), an Employment Tribunal has no jurisdiction to consider the complaint. In the present case, the Appellant did not resort to the appropriate service redress procedure in relation to the post-October 1997 allegations. Accordingly, the Employment Tribunal was correct to decide that it lacked jurisdiction. It seems to us that there is a strong argument for the making of regulations under section 75(9A) to exempt complaints relating to the Defence Council itself from the jurisdictional condition precedent of subsection (9). However, unless and until this is done, jurisdiction will remain conditional upon compliance with subsection (9). Other matters(1) In the course of his submissions on unfair dismissal Mr de Mello made a subsidiary submission to the effect that the Secretary of State is legally accountable for not bringing section 192 of the Employment Rights Act into force and that we are in a position to override his omission. Even if we had judicial review jurisdiction (which we do not), this would be an unsustainable submission in the light of R v Secretary of State, ex parte Fire Brigades Union [1995] 2 WLA 464.(2) Another of Mr de Mello's submissions was to the effect that, if all else failed, we should provisionally find the primary legislation not to be ECHR-compliant and should adjourn the matter for a declaration of incompatibility under section 4 of the Human Rights Act to be considered. In view of the main parts of our judgment, there is no need for us to say more about the premise upon which that submission is predicated. However, we take the opportunity to make it clear that the Employment Appeal Tribunal is not part of the "the High Court" within the meaning of section 4(5)(e) of the Human Rights Act and, accordingly, it has no jurisdiction to grant a declaration of incompatibility. This is obvious from sections 4, 5 and 6 of the Supreme Court Act 1981 . In any event it would be somewhat anomalous if the lay members of the Employment Appeal Tribunal had the power to outvote the presiding judge on something as constitutionally circumscribed as a declaration of incompatibility.(3) We should not leave this case without recording the fact that, to the extent that the Appellant was aggrieved by the Employment Tribunal's lack of jurisdiction, there were other procedures available to him. In addition to the service redress procedure, these included the right to petition the Defence Council for a review of the sentence of the court-martial under section 113 of the Army Act and appeal under the Court-Martial (Appeals) Act 1968 , although, having pleaded guilty, any such petition on appeal could only have related to sentence. Conclusion[14]It follows from what we have said that, in relation to both unfair dismissal and race discrimination, this appeal must be dismissed.