FORMER EMPLOYEE

South East Essex College v Abegaze

EAT: Judge Birtles, Mr J Mallender, Lord Davies of Coity; 3 November 2005

The appellant college, the claimant's former employer, wrote a letter to the claimant's employer, dated 15 January 2001, which came to the claimant's attention on 13 October 2003. The letter gave information about the claimant which he alleged was incorrect and detrimental to him. On 12 January 2004 he brought a complaint against the college of discrimination and victimisation contrary to the Race Relations Act 1976. In preliminary proceedings, the employment tribunal, referring to section 27A of the Act, held that the claim was not misconceived and that the letter was capable of amounting to less favourable treatment and victimisation in respect of the claimant's employment relationship with the college. It further held, pursuant to section 68(6) of the 1976 Act, that it would be just and equitable to hear the complaint, notwithstanding that it had been brought nearly three years after the writing of the letter by the college, as the claimant had presented it within three months of becoming aware that he had a potential claim.

The college appealed, contending, inter alia, that section 27A of the 1976 Act could not apply to the claimant's complaint as it was not in force at the time of the alleged act of discrimination.

The Employment Appeal Tribunal held:
The tribunal had erred in law in failing to consider prejudice to the college when exercising its discretion under section 68(6) of the Race Relations Act 1976 to admit the complaint out of time. Further, section 27A of the 1976 Act could not be applied retrospectively to an alleged act of discrimination which took place before the section came into effect, and, therefore, the writing of the letter was not unlawful at the time it was written and could not form the basis of a complaint. Moreover, the letter was not a benefit arising from his employment relationship with the college in respect of which he was entitled to protection against discrimination by the college as employer, since it was not a normal non-contractual benefit and had not provided the claimant with anything but had instead been provided in confidence to assist his employer. Accordingly, the tribunal had no jurisdiction to hear the claim and it would be dismissed.

The appeal was allowed.

Appearances: Sam Neaman (Bates, Wells & Braithwaite) for the college; the claimant did not appear and was not represented.