Ali v Office of the Immigration Services Comr

It is not correct that the Employment Tribunal retains jurisdiction to hear discrimination complaints whenever the alternative forum lacks the same remedies as the Tribunal. Rather, section 120(7) displaces Employment Tribunal jurisdiction where the act complained of may be the subject of an appeal or proceedings in the nature of an appeal under another enactment. An appeal route has the requisite character if it can rehear the matter, reach its own view of the facts and, if appropriate, reverse the decision. An enforcement or investigatory act that does not relate to conferring, renewing or varying a qualification will normally fall outside section 53.

This appeal concerned whether the Employment Tribunal had jurisdiction under the Equality Act 2010 to hear race discrimination, harassment and victimisation complaints against the Immigration Services Commissioner. The claimant's companies had registrations refused and cancelled in 2014 and he later complained about enforcement steps taken from 2017, including interviews and a search warrant. The ET struck out the whole claim for lack of jurisdiction and as out of time. The claimant appealed. The EAT considered whether the s.87 appeal route to the First-Tier Tribunal was an "appeal or proceedings in the nature of an appeal" under s.120(7), and whether investigatory/enforcement acts fell within s.53. The central issues were therefore (a) the effect of s.120(7) where a statutory appeal exists and (b) the scope of s.53 as applied to enforcement activity.

(1) Appeal dismissed. The Employment Tribunal was right to strike out the complaints in full for lack of jurisdiction. (Disposition: appeal dismissed.)

(2) Section 120(7) and availability of appeal under the Immigration and Asylum Act 1999. The EAT applied the approach in [2018] ICR 49 (Michalak). A route under s.87 to the First-Tier Tribunal is characterised as an appeal or proceedings in the nature of an appeal because it can rehear, receive evidence, decide facts, and reverse the Commissioner by directing registration. The mere absence of identical remedies in the alternative forum does not prevent s.120(7) from operating. The ET therefore had no jurisdiction in respect of the 2014 deregistration decisions (see paras [29]–[36]; [53]; [57]–[58]).

(3) Power of the First-Tier Tribunal. The FTT can consider allegations that the decision under appeal involved discrimination. The fact the Employment Tribunal has specialist expertise in discrimination does not preclude Parliament conferring appellate jurisdiction elsewhere. The FTT's ability to conduct a full rehearing was evidenced in the decisions cited and the factual appellate practice in the present appeals (see paras [36]–[41]; [37]–[38]).

(4) Scope of s.53 as to enforcement and investigatory acts. Although the Commissioner remains a "qualifications body" (s.54), s.53 applies only to the types of conduct enumerated in its subsections (deciding to confer a qualification, varying or withdrawing it, or related arrangements). Investigatory or enforcement steps aimed at determining unlawful practice, such as interviews under caution or execution of a search warrant, are not acts of the kind captured by s.53 unless they are part of conduct within those specific subsections. The ET correctly held the post-2017 enforcement activities were outside s.53 (see paras [63]–[75]).

(5) Time and procedural points. Even if wrong on some procedural detail, the ET's conclusion that the 2017-onwards complaints were outside s.53 made detailed time analysis unnecessary. The alternative abuse of process and Henderson argument was not required to be decided (see paras [59]; [76]–[79]).

(6) Order: Appeal dismissed. No remittal. Costs neither varied nor ordered by this judgment (the court gave its formal disposal at para [93]).

• Employment Appeal Tribunal: appeal from a reserved Decision of the Employment Tribunal (EJ Barrowclough) refusing jurisdiction and striking out the claim; judgment handed down [2020] UKEAT 0271_19_0611 (this decision) (see paras [4]–[5]; [15]).
• First-Tier Tribunal / Upper Tribunal / Court of Appeal: the claimant's companies had previously appealed the 2014 deregistration decisions through the statutorily provided route under the Immigration and Asylum Act 1999 to the FTT, then UT and Court of Appeal (unsuccessful) (see paras [7]–[9]; [17]; [32]–[38]).