Lawal v Northern Spirit Ltd

Discriminatory conduct occurring after employment has ended may still fall within Employment Tribunal jurisdiction where the complaint arises out of or is attributable to the employment relationship. The Tribunal must examine the facts to determine whether a sufficient continuing employment relationship existed at the relevant time. An appeal may be allowed and remitted for that jurisdictional inquiry and, if jurisdiction is established, determination of the substantive complaint. Costs remain discretionary under Rule 44.3, and may reflect the parties’ conduct and rejection of a reasonable proposal.

Mr Lawal complained to an Employment Tribunal of racially motivated detriment arising from a post-employment reference. The Tribunal held that it had no jurisdiction, following Adekeye v Post Office (No 2) [1997] IRLR 105, because the relevant events occurred after termination. The Employment Appeal Tribunal dismissed his appeal and rejected a separate objection concerning the participation of a Recorder as counsel and the composition of the tribunal. The Recorder objection was subsequently resolved by the House of Lords, which remitted the jurisdiction issue to this court in light of its decision in D'Souza v London Borough of Lambeth, reported among several cases under Rhys-Harper v Relaxion Group Plc [2003] ICR 867. The remaining issues were the form of order and costs.

Lord Justice Peter Gibson gave the substantive judgment. Lord Justice Laws and Lord Justice Longmore agreed.

1. Appeal allowed and remittal. The decisions of the Employment Tribunal and Employment Appeal Tribunal were set aside. The matter was remitted to an Employment Tribunal to determine jurisdiction in accordance with the House of Lords’ opinions in the Rhys-Harper cases. If jurisdiction was established, the Tribunal was to determine whether Northern unlawfully discriminated against Mr Lawal under the Race Relations Act 1976.
2. Post-employment jurisdiction. The earlier approach that post-termination discriminatory acts necessarily fell outside Employment Tribunal jurisdiction could not stand in light of the House of Lords’ decision. Jurisdiction depended on whether the complaint arose out of or was attributable to the employment relationship. That required a factual inquiry, which had not occurred because the Tribunal considered itself bound by Adekeye v Post Office (No 2) [1997] IRLR 105.
3. Constitution of the rehearing. There was no legal reason to require a differently constituted Tribunal. The Regional Chairman was left to determine the constitution, including in light of practical difficulties in reconstituting the original Tribunal.
4. Costs. Rule 44.3 conferred a discretion notwithstanding the general rule that the unsuccessful party pays. Mr Lawal was entitled in principle to properly incurred costs up to receipt of Northern’s reasonable proposal of 28 October 2003. Thereafter, including the costs of the hearing, there was no order as to costs. Any dispute about the costs incurred before that date was to be determined by a costs judge. The Lord Chancellor’s Department was not liable for costs.

• House of Lords: On 19 June 2003, the Recorder-objection appeal was allowed to the extent of granting a declaration, and the jurisdiction issue was remitted to this court in light of D'Souza v London Borough of Lambeth, reported under Rhys-Harper v Relaxion Group Plc [2003] ICR 867.
• Court of Appeal: On 30 October 2002, the Recorder-objection appeal was dismissed and the jurisdiction appeal was deferred pending the House of Lords’ decision.
• Employment Appeal Tribunal: On 15 January 2002, the appeal was dismissed on both the Recorder objection and the jurisdiction issue.
• Employment Tribunal: On 12 July 2000, the Tribunal held that it lacked jurisdiction.
• Court of Appeal: In the present decision, the appeal was allowed, the earlier decisions were set aside, and the case was remitted to an Employment Tribunal.