LONDON BOROUGH OF GREENWICH v MISS V DROBIA [2002] UKEAT 695_01_0305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 695_01_0305Case No Appeal No. EAT/695/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF GREENWICHAPPELLANTMISS V DROBIARESPONDENT
Before
Mr Justice LindsayDate 3 May 2002
[1]APPEARANCES For the Appellant MR P OLDHAM (of Counsel) Instructed By: Legal Services Dept London Borough of Greenwich 29-37 Wellington Street Woolwich London SE18 6PW For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) : We have before us the appeal of the London Borough of Greenwich in the matter Miss V. Drobia against the London Borough of Greenwich. The Employment Tribunal, as we shall show, held that it did have jurisdiction to deal with the case put in front of it and the London Borough appeals against that holding.[2]Today the Appellant, Greenwich, has appeared by Mr Oldham and there is nothing from Miss Drobia. She is not here in person, nor does anyone represent her, but I need briefly to explain that and to come back to that situation a little later. On 24 October she was sent a Notice fixing today's hearing. That Notice was sent by the Employment Appeal Tribunal to an address in Plumstead. It was not returned through the dead letter service. Later there were reminders, in particular, as to the need for a skeleton argument sent on 25 March 2002 and the 19 April 2002. They have been returned through the dead letter service but were received only today. It is unfortunate, and perhaps a little strange, that they - sent several days apart – were returned together but that is the position. Had they been returned earlier, perhaps alternative steps could have been taken, but, as they were received only today, it is difficult to do anything save as I shall come on to.[3]There is, though, the possibility of error on the Employment Tribunal's part in the sense that the Plumstead address was used. The Plumstead address was used by Miss Drobia in her IT1 and was used throughout the proceedings at the Employment Tribunal. Not unnaturally, therefore, the Appellant gave that address (the Plumstead address) as the Respondent's address when it framed its Notice of Appeal. But in the Respondent's Answer Miss Drobia gives an address in Philadelphia in the United States. That was not noticed and communication continued, as I mentioned, to be sent to Plumstead.[4]Miss Drobia does not attend today. The solicitors who acted for her earlier indicated as early as 31 August 2001 that they were no longer acting for her. They indicated that communication should therefore be made direct to her. Unfortunately, they did not give an address for her. That, for the moment, is as much can be said possibly to explain her failure to attend, although Mr Oldham has indicated that there has been recent correspondence sent by his instructing solicitors to the Philadelphia address but, unhappily, save in one respect, there is little reason to be sure that communication sent to that address was actually getting through to Miss Drobia.[5]The communication sent by Mr Oldham's solicitors to Miss Drobia in Philadelphia did indicate that there was to be a hearing today, 3 May, and it is true to say that there has been one telephone call, we are told, from Miss Drobia to Mr Oldham's solicitors which does suggest that perhaps the messages sent by post to Philadephia were getting through, but that is as high as it can be put. We shall have later on to come back to the position that here we have a Respondent who might not have duly had notice of today's hearing.[6]It would have been possible simply to adjourn the case but Greenwich has come fully equipped with solicitors and counsel to proceed and it is fair to say that already the case has been adjourned by the Employment Appeal Tribunal; on that earlier occasion it was simply because no judge was available. It seems somewhat unfair to Greenwich to adjourn yet again and so we have chosen to go on but we shall come back to the machinery that we have adopted, intending to make the matter fair to Miss Drobia should she wish to have an opportunity to address the case. So much for the immediate procedural position.[7]The history of the matter is that on 8 September 2000 Miss Drobia launched an IT1 for sex discrimination, race discrimination, victimisation and breach of contract. She said, inter alia:
"I have not been allocated a permanent licence [and pausing there, it is a licence in relation to market trading at Beresford Square market in Greenwich] despite qualifying for one. I believe this is because I am a black woman and/or because I have made complaints about racial and sexual harassment."
[8]On 2 October 2000 there was an IT3 from Greenwich and it gave rise to jurisdictional points. It said:
"It is denied that the Applicant is qualified to make a claim under Part II of the Race Relations Act 1976 (RRA) or Part II of the Sex Discrimination Act 1975 (SDA) in that …"
And then, it sets out grounds on which it is said that those Acts were not applicable and at paragraph 4(c) Greenwich said:
"The Applicant has applied for a permanent pitch on the Market but the last application was in March 2000. The application was unsuccessful because, under the Respondent's criteria, another market trader had priority over the Applicant. …"
And also, in their paragraph 4, the opening words, the Council said:
"Further the Applicant's claims have been presented to the Tribunal more than three months after the date of the acts she complained of .."
And then, they set out details.[9]On the same day 2 October 2000 Greenwich wrote to the Employment Tribunal and said:
"The Respondent submits that the Applicant does not qualify to make a claim in the Employment Tribunal and, further, that the Originating Application was presented out of time. Further particulars are contained in the Grounds of Resistance attached hereto. The Respondent requests a preliminary hearing to decide these issues of jurisdiction."
[10]Accordingly, and under some direction which we do not have in our papers, a preliminary hearing was arranged to take place at the Employment Tribunal to deal only with the question "whether the Tribunal has jurisdiction to consider the Applicant's complaints".[11]On 18 January 2001 Miss Drobia's solicitors asked for a stay of the Employment Tribunal proceedings because, they said, there were proceedings in the County Court. Deighton Guedalla, the solicitors then acting for Miss Drobia said:
"A central issue is whether the granting of licences is covered by section 13(1) and (2) or section 29 of the Sex Discrimination Act 1975 and section 12(1) or section 20 of the Race Relations Act 1976. This should appropriately be determined by the County Court. If it accepts jurisdiction then the case can fall to be determined there. It would therefore be cost effective to hear all of the case in the County Court if possible. In these circumstances and given the hierarchy of the courts, we would be grateful if the Tribunal would stay proceedings in the employment case."
[12]There was no stay in relation to that application which, in any event, was relatively close to the due date for hearing which began and ended on 26 January 2001 at the Employment Tribunal. Both sides were represented by counsel but Mr Oldham, who was there for Greenwich, tells us that Miss Drobia did not herself turn up, even though she was represented by counsel or, perhaps, because she was represented by counsel.[13]On 10 April 2001, the Tribunal's Decision, which was the Tribunal at London South under the chairmanship of Mr D.N. Milton, was sent to the parties. It was unanimous and it was:(i) it declares that an Employment Tribunal does have jurisdiction to entertain a complaint (in the particular respects referred to in the reasons) by the Applicant under section 12 Race Relations Act 1976;(ii) the Tribunal adjourns the question of the full merits hearing for further written or oral submissions on either side, and in any event until further order."[14]On 25 June or earlier - it is undated but apparently was in time - a Notice of Appeal was received from Greenwich. There are two aspects of the Employment Tribunal's decision which at first are a little puzzling, though less puzzling than earlier, because Mr Oldham has explained the position. The Tribunal dealt only with Miss Drobia's complaint as to the failure of her to be granted a market licence, that being said to have been caused on racial grounds. The only evidence was for Greenwich, namely from Miss Butcher by way of a written statement. That written statement was largely, perhaps even totally, uncontested and certainly the Tribunal accepted it as reliable evidence.[15]The most recent application for a licence, as it appeared from Miss Butcher's evidence, had been in March 2000 and there is no suggestion that the refusal of the application was significantly later. The IT1 was received by the Employment Tribunal on 8 September 2000, so arguably under section 68 of the Race Relations Act and the corresponding provision of the Sex Discrimination Act the Tribunal was obliged not to consider the complaint unless it held that it was just and equitable to do so notwithstanding that the time bar had not been complied with. It was, on its face, a complaint as to either a single event or separate single events, the last of which was more than three months before the issue of the IT1.[16]Accordingly, the very first question before the Tribunal could have been whether it was right to extend time on just and equitable principles, but the Tribunal never looked at that at all, as far as one can see. That puzzle, though, is solved, as it seems to us, by Mr Oldham having indicated that Miss Drobia was not attending at the Tribunal. Accordingly, evidence from her would not have been possible. It seems, presumably, that no witness statement was put in for her and that, no doubt, led the Tribunal to think that it was or could have been a little unfair to rule on the just and equitable extension without hearing her. So that puzzle is resolved.[17]The other puzzle consists of a recollection that Deighton Guedalla had asked for a stay because of proceedings under section 20 of the Race Relations Act 1976 in the County Court. Section 20 refers to discrimination in the provision of, inter alia, facilities and services to the public and is in Part III of that Act. It is at least arguable that Parts II and III are mutually exclusive. The Court of Appeal in Triesman v Ali (Unreported as yet) on 7 February [2002] EWCA Civ 93 , thought it unlikely that Parliament should have created a position in which parties could be left to choose either to go to the Employment Tribunal under Part II or to the County Court under Part III in respect of the very same complaint. Although, in fact, ultimately, the Court of Appeal did not finally decide that point, they plainly were of the view that it was improbable that Part II and Part III were not mutually exclusive, certainly in general.[18]There did not seem to have been any investigation of conflict between Part II and Part III or their mutual exclusivity on the part of the Tribunal but, again, Mr Oldham has explained that although Deighton Guedalla's letter suggested that the proceedings in the County Court were already issued, the understanding at the Employment Tribunal was still that they were merely proposed and so one can see that, that being the case, there was no particular reason to break off to consider whether it was more appropriate to go in the County Court or more appropriate to go in the Employment Tribunal. That explains some possible doubts that could have arisen in the case.[19]Coming to the Decision, it will be remembered that the Employment Tribunal's decision, as we have cited it, was that the Tribunal did have jurisdiction "in the particular respects referred to in the Reasons". That limited the Employment Tribunal's conclusion as to the sole subject of whether Greenwich was, on the facts, a qualifying body within section 12 of the Race Relations Act and its Sex Discrimination Act equivalent. Section 12 provides, under the heading "Qualifying Bodies":
"(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. (2) In this section – a) 'authorisation or qualification' includes recognition, registration, enrolment, approval and certification; b) 'confer' includes renew or extend."
There is a subsection (3) that we do not need to cite.[20]The Employment Tribunal, looking at section 12 and its construction, loyally followed the approach adopted by the Employment Appeal Tribunal in Ahsan, or the case that they call "the Ahsan case", which is Sawyer v Ahsan [2000] ICR 1 EAT and they followed the principles that they extracted from that case. Ahsan was a case in which it had been common ground that, if Mr Ahsan did not have the ability to claim under section 12, then he had no remedy at all. Well after the Employment Tribunal Decision in the case before us - in a quite separate case – Triesman v Ali in the Court of Appeal - the Court of Appeal said that: "It had been an important factor in the Ahsan decision that Mr Ahsan was thought to have no remedy other than section 12".[21]We respectfully agree. It was, indeed, an important consideration in that case. However, it has since become plain that that question, which was common ground in Ahsan, was not properly to be taken to be common ground and, relying upon arguments not raised in Ahsan or at the Employment Appeal Tribunal in that case, the Court of Appeal has now held, in Triesman, that Ahsan was wrong. The position is that the Employment Appeal Tribunal has unfortunately here led the Employment Tribunal into error.[22]The position now is that section 12 is to be confined, by reference to the Court of Appeal's decision in the earlier case of Tattari v PPP Ltd [1998] ICR 106, to the kind of bodies similar to authorities which are empowered to grant qualifications or recognition for the purpose of practising a profession, calling trade or activity. The question for a Tribunal, following Triesman, is whether the body in question is one which can confer an authorisation or qualification which is needed for or facilitates engagement in a particular profession, trade or activity – see Triesman at paras 30 to 33 and 37. One might also refer to paragraph 29. Applying that approach, which is the now the appropriate approach, one notices, firstly, that Greenwich was not, in general , a regulatory body as to markets or as to market traders. So far as was relevant it only regulated market trading in Greenwich and, more particularly, trading at the Woolwich market in Beresford Square, which was the market in which Miss Drobia sought a permanent licence. A trader such as Miss Drobia was completely free to trade outside Greenwich, notwithstanding that Greenwich withheld or did not grant a permanent licence to (in this case) Miss Drobia. A failure or refusal on Greenwich's part to grant her approval or authorisation at Beresford Square had no effect outside Beresford Square and, indeed, no effect outside the particular pitches in Beresford Square as to which she had sought permanent licence. She was completely free otherwise to trade. Moreover, even at the market in Beresford Square and even after a permanent licence had been refused to her, she was free to trade on the casual trading basis which was an alternative to a "permanent licence" form of trading.[23]Miss Butcher had explained in her evidence that Miss Drobia would have been completely free to ask for permission or to be permitted to trade at vacant market stalls on a one-day at a time basis. That was not some theoretical possibility, it was a real option and, indeed, some regular traders at the Beresford Square market preferred to trade on that so-called casual basis rather than asking for a permanent licence. It is not as if Miss Drobia was refused a permanent licence of any kind at all. She was declined only a permanent licence for the two particular pitches as to which she asked for one. There is no suggestion that she could not have had a permanent licence at some other pitch.[24]In the light of Triesman which, of course, the Employment Tribunal could not have had in mind in April 2001, it is impossible to see Greenwich, in its capacity as a regulator of pitches and of market trading at Beresford Square, as a body falling within section 12 or its Sex Discrimination Act equivalent. The Court of Appeal's decision, by referring back to Tattari, certainly gives room for manoeuvre in the sense that the applicable meaning is not one of great particularity or precision. It includes a reference to the word "similar" which gives some room for movement. However, whatever breadth of construction is possible post- Triesman, it plainly does not include anything such as the rôle of Greenwich in relation to this case. There was, therefore, error of law. Indeed, even if Ahsan was held to be right, it would be highly arguable that, even so, the Employment Tribunal's reasoning would have been insupportable, but we do not need to go that far.[25]The Employment Tribunal's decision, therefore, must be set aside as a whole. We hold that the Employment Tribunal does not have jurisdiction under section 12 or its Sex Discrimination Act equivalent to hear Miss Drobia's complaint that she was, on racial grounds or sexual grounds, refused a permanent licence for two specific stalls in the Beresford Square market.[26]We must now revert to the position with which we began, namely the difficulties springing from Miss Drobia not having attended today.[27]We direct that instead of an Order being drawn up immediately it should lie in office for 42 days. The Employment Appeal Tribunal, by fax and by post, will attempt to get in touch with Miss Drobia using not only the Plumstead address once again but also the Philadelphia address and any other address that comes to hand.[28]The solicitors, Deighton Guedalla that formerly acted for Miss Drobia, should also be a recipient and the letter will indicate that if, within that 42 day period, Miss Drobia or someone on her behalf authorised to act for her moves to set aside or vary the decision which we have indicated then they will be free to do so and, moreover, that there would be no onus upon them to show that the decision that we have set out was wrong in any particular respect or wrong altogether.[29]The case will need then to be approached entirely afresh, if there is an application to vary or set aside that is received within that 42 day period. Of course, Miss Drobia might be at some risk as to costs because Mr Oldham has read to us correspondence, including sendings to Philadelphia, by which Greenwich warned that Miss Drobia might be at risk as to costs in these proceedings, but that, of course, is a matter for her to consider.[30]If at the expiry of the 42 day period no application has duly been lodged with the Employment Appeal Tribunal to set aside or vary this decision, then the Order that the Employment Tribunal did not have jurisdiction will automatically issue without further ado. That, I think, is much as we can do to provide for the situation and so, directing the Order to lie in office in that way and for there to be further communication in that way, we allow the appeal and indicate, as I said, that the Employment Tribunal did not have jurisdiction.