Ali v Office of the Immigration Services Comr

Section 120(7) of the Equality Act 2010 excludes Employment Tribunal jurisdiction where the impugned act may be challenged by a statutory appeal that has the essential features of an appeal. The alternative tribunal must be able to reconsider the matter unconstrained, determine discrimination allegations on their merits, and reverse the original decision. It need not provide the same remedies as an Employment Tribunal.

Section 53 regulates only the specified acts of a qualifications body concerning applications for, conferment of, or current holding of qualifications. It does not make every discriminatory act by such a body actionable in the Employment Tribunal. Investigation and enforcement action against an allegedly unqualified person fell outside its scope.

The claimant controlled two companies formerly registered by the Office of the Immigration Services Commissioner to provide immigration advice and services. In 2014 the Commissioner refused renewed registration and cancelled the registrations. The companies unsuccessfully appealed through the First-tier Tribunal, Upper Tribunal and Court of Appeal.

From 2017 the Commissioner investigated whether the claimant was unlawfully providing immigration services. The investigation included invitations to interviews under caution and a search warrant. The claimant brought Employment Tribunal complaints of race discrimination, harassment and victimisation.

The Employment Tribunal held that it lacked jurisdiction over both the 2014 registration decisions and the later enforcement conduct. The claimant appealed. The central issues were whether the statutory appeal route engaged section 120(7) of the Equality Act 2010, and whether the later conduct fell within section 53.

1. Appeal dismissed. The Employment Tribunal correctly held that section 120(7) of the Equality Act 2010 excluded its jurisdiction over complaints concerning the 2014 refusals of renewed registration and cancellations.

   The relevant question is whether the substantive act complained of may be challenged by an appeal, not whether the alternative statute expressly creates a freestanding discrimination complaint. An appeal under section 87 of the Asylum and Immigration Act 1999 had the essential appellate characteristics identified in Michalak: the First-tier Tribunal could hear evidence, determine the discrimination allegations directly and on their merits, reconsider the decision, and reverse it by directing registration or continued registration.

   Section 120(7) does not require identical remedies. The First-tier Tribunal's ability to reverse the registration decisions supplied an equivalent and effective means of redress, notwithstanding that it could not award Employment Tribunal compensation. The claimant's view that the First-tier Tribunal was unsuitable did not alter the statutory analysis.

2. The later investigation and enforcement conduct was outside section 53. Although the Commissioner remained a qualifications body within section 54, that status was only a necessary condition. Section 53 prohibits only the particular forms of conduct specified in its subsections.

   The investigation did not concern a decision whether to confer a qualification. The Commissioner had no power to recognise the claimant's asserted overseas-supervision arrangement as a qualification. Further, the protection for a person upon whom the body has conferred a qualification concerns a current holder of a qualification conferred by that body, not a former registrant. The claimant's allegations concerning investigation interviews and a search warrant therefore created no section 53 claim.

3. The Employment Tribunal's alternative time reasoning was unsatisfactory, but immaterial because the later allegations were not within section 53. Section 108 had not been raised, and could not assist: the 2017 investigation did not arise out of and was not closely connected with the former registration relationship.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal's jurisdictional strike-out was upheld.
• Employment Tribunal: At a preliminary hearing, the Tribunal struck out the discrimination complaints for want of jurisdiction and held, alternatively, that the claim was out of time (Case Number 3201321/2018).
• First-tier Tribunal, Upper Tribunal and Court of Appeal: The companies' statutory challenges to the 2014 registration decisions were unsuccessful.