Lewisham and Guys Mental Health NHS Trust v Andrews (decd)

A statutory discrimination complaint seeking pecuniary compensation is a cause of action within section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. It therefore survives for the benefit of a deceased complainant’s estate unless the relevant legislation expressly or by necessary implication excludes survival.

Exclusive Employment Tribunal jurisdiction does not alter that conclusion. A provision requiring proceedings to be brought under the discrimination legislation regulates the forum and remedies; it does not disapply the 1934 Act. The Tribunal’s procedural powers permit substitution of the deceased complainant’s personal representative.

The deceased employee had presented an Employment Tribunal complaint alleging racial discrimination by her employer. She was later dismissed and died before the discrimination complaint was determined. Her personal representative sought to continue it, while also successfully pursuing an unfair-dismissal complaint.

The Employment Tribunal rejected the employer’s application to dismiss the discrimination proceedings. The Employment Appeal Tribunal allowed the employer’s appeal, holding that the complaint did not survive death. The personal representative appealed to the Court of Appeal. The central issue was whether the discrimination complaint was a cause of action which survived under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.

1. Appeal allowed unanimously. Stuart-Smith LJ gave the leading judgment. Ward LJ agreed with both judgments, and Mummery LJ gave concurring reasons. The Court reinstated the Employment Tribunal’s order refusing to dismiss the discrimination complaint.

2. Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 makes vested causes of action survive for an estate, subject to its express exceptions. A claim for pecuniary compensation for racial discrimination was a cause of action. Applying the ordinary meaning stated in Letang v Cooper [1965] 1 QB 232, the pleaded facts, if established, entitled the employee to a remedy.

3. The Employment Appeal Tribunal had wrongly concentrated on whether the claim was personal or assignable. The correct question was whether the deceased had a cause of action. The distinction between an action and a cause of action made reliance on Re Simpkin Marshall Ltd [1958] 3 All ER 611 inapposite. Nor did exclusive Employment Tribunal jurisdiction prevent the claim being a cause of action. An Employment Tribunal was a court for this purpose.

4. Section 54(1) of the Race Relations Act 1976 did not itself confer a right on a personal representative, but it did not remove the right which the 1934 Act supplied. Section 53(1) required the proceedings to be brought through the statutory enforcement scheme; it did not abate proceedings upon death. The absence of an equivalent of section 206 of the Employment Rights Act 1996 did not imply exclusion.

5. Compensation remained capable of being awarded, although declaratory relief and recommendations could have no practical application after the complainant’s death. Rule 13 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 supplied ample procedural power to substitute the personal representative and continue the existing proceedings.

• Court of Appeal: Allowed the personal representative’s appeal and reinstated the Employment Tribunal’s order: [2000] ICR 707 .

• Employment Appeal Tribunal: Allowed the employer’s appeal from the Employment Tribunal in a judgment delivered on 26 March 1999, holding that the discrimination complaint did not survive the complainant’s death.

• Employment Tribunal: On 6 November 1998, rejected the employer’s application to dismiss the deceased employee’s racial-discrimination complaint and held that it could be pursued by her personal representative.