D'Souza v London Borough Of Lambeth

Under section 4 of the Race Relations Act 1976, protection covers applicants seeking an offer of employment and persons whose employment continues when the discriminatory act occurs. A dismissed employee seeking reinstatement or restoration to former employment falls outside both categories. The Court of Appeal was bound by The Post Office v Adekeye [1997] I.C.R.110, despite reservations about that decision. Differences between victimisation and discrimination, or between an internal appeal and non-implementation of a reinstatement order, did not alter the result. Community law and the Human Rights Act provided no route around the statutory construction. Appeal dismissed.

Mr D'Souza was dismissed by the Council, which admitted unfair dismissal and paid compensation. An Employment Tribunal later ordered reinstatement under section 114 of the Employment Rights Act 1996 and awarded compensation under the Race Relations Act 1976. The Council subsequently asserted that reinstatement was impracticable. That issue was resolved against Mr D'Souza, who then brought proceedings alleging continuing racial discrimination and victimisation in the decision not to reinstate him.

The Employment Tribunal and Employment Appeal Tribunal held on a preliminary point that they had no jurisdiction, considering themselves bound by The Post Office v Adekeye [1997] I.C.R.110. The central issue before the Court of Appeal was whether that decision governed the claim and whether later Community-law, statutory or human-rights developments permitted departure from it.

Lord Justice Schiemann delivered the judgment of the court. The appeal was dismissed with costs. The tribunals below had correctly held that the claim could not be entertained.

1. Scope of section 4. The court followed The Post Office v Adekeye [1997] I.C.R.110. Section 4(1) concerns arrangements for offering employment to applicants. Section 4(2) protects persons whose employment continues when the alleged discriminatory act occurs. A dismissed employee seeking reinstatement or restoration to former employment falls within neither category. The court regarded Adekeye as unsatisfactory and accepted that the issue might have been decided differently, but held that it was binding.
2. Alleged distinctions. Characterising the complaint as victimisation under section 2 rather than discrimination under section 1 did not affect the underlying concept of employment. Nor was there a material distinction between the internal appeal considered in Adekeye and the non-implementation of a reinstatement order in the present case.
3. Community law. The court followed Rhys-Harper v Relaxion Group Ltd [2001] EWCA Civ 634, which was binding and rejected the proposed wider construction of the cognate sex-discrimination provision. Coote v Granada Hospitality Ltd [1999] ICR 100 concerned the need for an effective remedy against victimisation after employment ended. It did not require the wider construction advanced by the appellant. The Equal Treatment Directive likewise did not compel a different reading of the Act.
4. Per incuriam arguments. The omission of Regulation 1612/68/EEC did not make Adekeye per incuriam because no claim under that instrument was available in the proceedings and any relevant right could be enforced separately. The cited passage in Seymour-Smith [1999] 2 AC 554 was irrelevant to the dispute.
5. Article 6. Applying Z and others v The United Kingdom (Application no 29392/95), the court held that Article 6 was not engaged without a substantive civil right recognised, at least on arguable grounds, in domestic law. The Human Rights Act therefore gave the appellant no presently relevant right. The formal order was appeal dismissed with costs, a section II order against the Legal Services Commission, and refusal of permission to appeal to the House of Lords.

• Court of Appeal (Civil Division): dismissed the appeal with costs and held that the tribunals had correctly found themselves bound by The Post Office v Adekeye [1997] I.C.R.110.
• Employment Appeal Tribunal: held on a preliminary point that it had no jurisdiction to consider the complaint.
• Employment Tribunal: held that it had no jurisdiction over the proceedings concerning the refusal to reinstate Mr D'Souza.