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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Harris v Lewisham And Guy's Mental Health Trust [2000] EWCA Civ 87 (23 March 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/87.html
Cite as: [2000] 3 All ER 769, [2000] ICR 707, [2000] IRLR 320, [2000] EWCA Civ 87

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Case No: EATRI 1999/0409/3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEALS TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 23 March 2000
B e f o r e :
LORD JUSTICE STUART-SMITH
LORD JUSTICE WARD
and
LORD JUSTICE MUMMERY

MRS HARRIS AS PERSONAL REPRESENTATIVE OF
MRS MARCIA ANDREWS (DECEASED)

Appellant


- and -



LEWISHAM & GUY'S MENTAL
HEALTH TRUST

Respondent


(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)

Karon Monaghan(instructed by the Commission for Racial Equality for the Appellant)
Rohan Pirani (instructed by Messrs Capsticks of London for the Respondent)

Judgment
As Approved by the Court
Crown Copyright ©


LORD JUSTICE STUART-SMITH:
Introduction
1. The appeal raises the important question whether a complaint brought under the Race Relations Act 1976 (`RRA 1976') can survive the death of the complainant. Similar considerations apply to complaints brought under the Sex Discrimination Act 1975 (`SDA 1975') and the Disability Discrimination Act 1995 (`DDA 1995'). The Employment Tribunal (`ET') held that it could. The Employment Appeal Tribunal (`EAT') in a judgment delivered on 26 March 1999 allowed the Respondent's appeal. The Appellant, who is the personal representative of the complainant Marcia Andrews (`the deceased'), appeals that decision.
2. The deceased was employed by the Respondent as a secretary. On 6 April 1998 she presented an Originating Application to the ET complaining of racial discrimination. Her complaints were numerous and included complaints relating to disciplinary action, failure to upgrade her, increase in her workload by an amended job description and the handling of her complaints regarding the Respondent's treatment of her.
3. On 16 July 1998 the deceased was dismissed. On 23 August, before the hearing of her complaint of racial discrimination and before she had presented a complaint for unfair dismissal, she died. The Appellant subsequently presented a complaint for unfair dismissal. That was determined in her favour.
The statutory framework
4. Racial discrimination, both direct and indirect is defined in s.1(1) of the RRA 1976 and discrimination by victimisation in s.2. Discrimination in the employment field is dealt with in Part II of the Act. So far as is material for this case, s.4(2) provides:
"(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
(a) in the terms of employment which he affords him; or
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment."
5. Other provisions of Part II deal with Contract Workers (s.7), Partnerships (s.10), Trade Unions (s.11), Qualifying Bodies (s.12), Persons concerned with Vocational Training (s.13), Employment Agencies (s.14) and Police (s.16). A "complaint by any person that another person has committed an act of discrimination against [them] which is unlawful by virtue of Part II of the Act may be presented to an ET" (s.54(1)), and the jurisdiction of the ET is exclusive.
6. Part III of the RRA 1976 deals with discrimination in fields other than employment. Education is dealt with in sections 17-19, Planning Authorities (s.19A), the Provision of Goods and Services (s.20), Disposal and Management of Premises (ss.21-24), Clubs (ss 25-26), Barristers (s.26A). "A claim by any person that another person has committed an act of discrimination against [them] which is unlawful by virtue of Part III......may be made the subject of civil proceedings in like manner as any other claim in tort......for breach of statutory duty" (s.57(1)). The claim is to be brought in designated County Courts but the remedies are those available in the High Court, including the remedy of injunction (s.57(2)). The award of damages can include compensation for injury to feelings (s.57(4)).
7. Section 56 deals with remedies in the ET. Subsection (1) provides:
"(1) Where an [employment tribunal] finds that a complaint presented to it under section 54 is well-founded, the tribunal shall make such of the following as it considers just and equitable -
(a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 57;
(c) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates."
8. Subsection 56(4) deals with additional compensation if the employer fails to comply with a recommendation made pursuant to s.56(1)(c). It is clear that the remedies under s.56(1)(a) and (c) can have no application in the case of a deceased complainant.
9. Similar provisions are to be found in the SDA 1975. Sections 1-4 define discrimination. Part II is concerned with discrimination in the field of employment and is broadly similar to those provisions in the RRA 1976; Part III is concerned with discrimination in other fields and again is broadly similar to the corresponding provisions in the RRA 1976. Jurisdiction in relation to complaints under Part II is conferred on the ET (s.63) and the remedies open to the ET are similar to those in the RRA 1996 (s.65). Jurisdiction in respect of claims under Part III is given to the County Court and the provisions are similar to those in the RRA 1976.
10. Although the DDA 1995 is a more complex Act, the basic scheme is similar. There is no general definition of discrimination; but what amounts to unlawful discrimination is spelt out in relation to each type of activity. Discrimination in the employment field is in Part II and jurisdiction to enforce complaints under that part is conferred on the ET (s.8) and the remedies correspond with those given under the two earlier Acts. Discrimination in relation to the provision of goods and services and premises fall under Part III and the jurisdiction is given to the County Court (s.25).
11. ETs, being the creation of statute, have no jurisdiction other than that conferred by statute. The Employment Tribunals Act 1996 provides in Section 2 that:
"[Employment Tribunals] shall exercise the jurisdiction conferred on them by or by virtue of this Act or any other Act, whether passed before or after this Act."
12. There is no express provision in any of the three Discrimination Acts dealing with the position where the complainant or the Respondent dies before the presentation or determination of a complaint. This is to be contrasted with the position under the Employment Rights Act 1996. Section 206 provides:
"(1) Where an employer has died, any tribunal proceedings arising under any of the provisions of this Act to which this section applies may be defended by a personal representative of the deceased employer.
(2) This section and section 207 apply to -
(a) Part I, so far as it relates to itemised pay statements,
(b) Part III,
(c) Part V,
(d) Part VI, apart from sections 58 to 60,
(e) Parts VII and VIII,
(f) In Part IX, sections 92 and 93, and
(g) Parts X to XII.
(3) Where an employee has died, any tribunal proceedings arising under any of the provisions of this Act to which this section applies may be instituted or continued by a personal representative of the deceased employee."

Where there is no personal representative of a deceased employee the ET can appoint an appropriate person to act on behalf of the estate (subsection 4).
13. The Appellant relies upon the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 (`the 1934 Act'). Section 1(1) provides:
"Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation ..."
As originally drafted there were three other exceptions, that is to say causes of action for seduction, seducing one spouse to leave or remain apart from the other and damages for adultery. But these actions have been abolished and the exceptions deleted.
The EAT's decision
14. As I understand it the EAT reached their conclusion for the following reasons:
(a) They did not consider that a claim under the Discrimination Acts was a cause of action because `action' is to be given a restricted meaning, that is to say civil proceedings commenced by writ or such other manner as may be described by Rules of Court. Reliance was placed on this definition from the judgment of Wynn-Parry J. in Re: Simpkin Marshall Ltd [1958] 3 All ER 611, and the terms of the Supreme Court Act 1981 s.151.
(b) That a claim for compensation for discrimination was a right of a purely personal nature which could not be assigned by operation of the law.
(c) That there was nothing in the express provisions of the Discrimination Acts which conferred such rights or jurisdiction; and there were no rules or regulations providing for substitution of the personal representative of a deceased claimant or respondent.
15. I cannot accept the first of these reasons. The 1934 Act is concerned with causes of action, not actions. `Cause of action' was defined by Lord Esher MR in Read v Brown 22 QBD 128 at p131 as "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court." In Letang v Cooper [1965] 1 QB 232 Diplock LJ at p242 said:
"A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person."
16. A claim for racial discrimination has been described as a claim in respect of a statutory tort (see Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481, see paragraphs 10, 17, and 21 of my judgment; Ministry of Defence v Cannock [1994] ICR 918 per Morison J. at p936).
17. Mr Pirani, on behalf of the Respondent, rightly in my judgment, did not contend that the fact that the right was enforced in an ET, as opposed to a court, was a relevant distinction. There could be no justification for holding that an action in the County Court in respect of discrimination under Part III was within the 1934 Act, but that claim in the ET under Part II was not. The nature of the Tribunal giving the judgment is in my view immaterial; thus one may have a cause of action enforceable by arbitration. In any event an ET is a court (see Peach Gray & Co. v Sommers [1995] ICR 549 a case concerned with contempt of court in an ET).
18. The 1934 Act was passed to abolish the common law rule that actions in tort did not survive for the benefit of or against the estate of a deceased person. The maxim was actio personalis moritur cum persona. Actions in contract did survive if they resulted in pecuniary damage, even if they were also torts. But actions for damages for personal injury, even if based in contract as well as tort did not (see Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398 per Donaldson LJ at p405). But the 1934 Act now also governs causes of action in contract which at common law did survive (Dean v Wiesengrund [1955] 2 All ER 432).
19. I have no doubt therefore that a claim for pecuniary compensation for racial discrimination is a cause of action within the meaning of the 1934 Act. The question therefore is not, as the EAT thought, whether there is anything in the Discrimination Acts which expressly confers such rights on the personal representative, but whether there is anything which takes them away.
20. Mr Pirani made two submissions in relation to this. First, he relied upon the language of s.54(1) `a complaint by any person (`the complainant') that another person (`the respondent') (a) has committed an act of discrimination against the complainant'. That, he submitted, meant that the complaint could only be made by the individual complainant and not by someone on his or her behalf. The EAT, correctly in my view, rejected a submission made to them and advanced in her Skeleton but no oral argument by Miss Monaghan, that the expression `any person' was wide enough to cover a personal representative. This argument is untenable. But while s.54(1) does not confer rights on a personal representative, neither does it take away those conferred by the 1934 Act.
21. Mr Pirani's second argument was at first sight a little more promising. He relied on s.53(1) of the RRA 1976 which provides:
"Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act."
This section, Mr Pirani submitted, was apt to exclude the operation of the 1934 Act since proceedings could only be brought in a way provided by the Act, and there was no express provision relating to the survival of proceedings after death. But in my judgment this section, which is at the outset of Part VIII and entitled `Enforcement', is simply designed to ensure that proceedings are brought in the appropriate court or tribunal with the various remedies available. It would take far clearer language to deprive a personal representative of a claim which derived from the 1934 Act, or for that matter to abate a claim by a claimant on the death of the respondent. That cannot in my view have been the intention of the section.
22. Mr Pirani also relied on the absence of any similar provision to that found in s.206 of the Employment Rights Act. But for the reasons I have already given, an absence in the RRA 1976 of some power conferring rights on the personal representative is nothing to the point. It is I think understandable why Parliament should have thought fit to deal with the matter expressly in s.206. Some of the matters dealt with, such as the right to itemised pay statements, and rights to time off work for public duties (Part VI) are clearly not causes of action within the 1934 Act. If Parliament had simply dealt with these matters and left others to the provisions of the 1934 Act or the common law so far as it related to contractual rights, it is easy to see the argument that if some rights are expressly included, those that are not referred to must have been excluded.
23. Finally, Mr Pirani submitted that the absence of express rules making provision for substitution of a personal representative for a deceased claimant or respondent indicated that Parliament had not intended that the 1934 Act should apply. He contrasted this with the provisions of the Industrial Tribunals' Awards (Enforcement in Case of Death) Regulations 1976, Reg. 3, and the [Employment of Tribunals] Extension of Jurisdiction (England & Wales) Order 1994, paragraph 9.
24. But under [The Employment Tribunals] (Constitution and Rules of Procedure) Regulations 1993 ETs have wide powers to regulate their own procedure (Rule 13) and to give directions on any matter arising in connection with the proceedings (Rule 16) - (See Selkent Bus Co. Ltd. v Moore [1996] 1 CR 836 where it was held that Rule 13 gave power to permit amendments in the absence of an express power; and Cocking v Sandhurst (Stationers) Ltd [1974] 1 CR 650 where it was held that the predecessor of Rule 13 enabled a respondent to be added or substituted).
25. For these reasons I would allow the appeal.
LORD JUSTICE WARD:
26. I agree with the judgments of Stuart-Smith and Mummery LJJ which I have read in draft, and there is nothing I can usefully add.
LORD JUSTICE MUMMERY:
27. I agree with the judgment of Stuart-Smith LJ. As the point is of some general importance and as we are differing from the decision of the Employment Appeal Tribunal I will state my reasons in my own words.
28. On 6 November 1998 the Chairman of the Employment Tribunal (sitting alone at London South) rejected an application by the respondent NHS Trust to dismiss Mrs Andrews's complaint of race discrimination. The ground of the application was that Mrs Andrews had died on 23 August 1998 and that her proceedings and her complaint had died with her. The Chairman accepted the submission of Mrs Andrews's daughter, Mrs Harris, that the complaint of race discrimination was a "cause of action", that the benefit of it had passed to her estate and that the proceedings could be pursued by her as personal representative. Mrs Harris has now obtained Letters of Administration to her late mother's estate.
29. The only issue on this appeal is whether the Chairman was wrong in law in holding that the claim survived death. In my judgment the Chairman's ruling was legally correct. The Appeal Tribunal ought not to have allowed the Trust's appeal. I would allow this appeal by Mrs Harris and reinstate the order of 6 November 1998.
30. The legal position is as follows:
1. On the death of Mrs Andrews all causes of action vested in her survived for the benefit of her estate: section 1 (1) Law Reform (Miscellaneous Provisions) Act 1934.
2. The 1934 Act excludes certain causes of action, such as defamation, but the Act does not contain any express exclusion applicable to this case.
3. In the absence of a statutory definition of "cause of action " in the 1934 Act that expression bears its ordinary meaning of "...a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." See Letang v. Cooper [1965] 1 QB 232 at 243 per Diplock LJ.
4. Mrs Andrews' claim was a cause of action in that sense.In her originating application she set out facts in support of her complaint of race discrimination against the NHS Trust. If she established her claim the Tribunal had power to order the NHS Trust to pay compensation to her, if it considered it just and equitable to do so. The amount of the compensation awarded would correspond to the damages which the county court could have ordered in civil proceedings in like manner as a claim in tort. See sections 56 (1) (b) and 57 (1) (b) of the 1976 Act.
5. A claim for compensation for the commission of a "statutory tort",as a complaint under the Discrimination Acts has been described, does not fail to qualify as a "cause of action" because the Employment Tribunal has exclusive jurisdiction to adjudicate upon it. Diplock LJ's reference to a "court " is not confined to courts of law in the narrow or traditional sense. For the reasons given by Rose LJ in Peach Grey & Co v. Sommers [1995] ICR 549 at 557,558 an Employment Tribunal is a "court" in which specified statutory causes of action in the employment field are enforceable.
6. The fallacy in the Trust's submission is that it fails to give full force and effect to section 1(1) of the 1934 Act , which made "comprehensive provision" for the survival of causes of action "over the whole field" to which the old common law maxim on the demise of the "actio personalis" had applied: Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 at 405 F-G. It is wrong to hark back to the pre-1934 position and to apply the common law maxim by asking whether the rights conferred by, and actions under, the 1976 Act are "personal actions" and whether they are assignable by operation of law. The Appeal Tribunal characterised rights under the 1976 Act as " of a largely personal nature which Parliament has not deemed fit to provide should devolve on the estate." That approach is wrong because it disregards the fundamental change in the law made by the 1934 Act. The point is not whether the action is "personal" or whether it is assignable, but whether the person who has died had a "cause of action." If he had a cause of action, the benefit of it passed to his estate. The correct question is whether the complaint by Mrs Andrews under the 1976 Act was a "cause of action" within the meaning of the 1934 Act.If it was, the benefit of it passed to her estate whether it was a"personal action" or not. This does not mean that all benefits conferred by or recoverable under all statutes survive death. See, for example, D'Este v.D'Este [1983] Fam 55 at 59 (Application for financial provision under the matrimonial causes legislation not a "cause of action"). It is necessary to decide in each case whether the person who has died had a "cause of action" within the meaning of the 1934 Act.
7. There is no provision in the 1976 Act precluding a complaint of the kind made by Mrs Andrews from being a cause of action or from devolving on her estate. The NHS Trust relied on section 53 (1) which restricts proceedings for breach of the 1976 Act to those provided by the Act. That sub-section does not exclude or disapply the provisions of the 1934 Act. The proceedings started by Mrs Andrews were under Part II of the Act. The death of Mrs Andrews does not mean that they have ceased to be proceedings under the 1976 Act. Mrs Harris, as personal representative, is entitled to continue the subsisting proceedings under that Act as a result of the vesting in the estate of the cause of action under the Act.
8. There is no procedural obstacle of the kind suggested by the Trust to substituting Mrs Harris as the personal representative of her late mother and giving her leave to carry on the existing proceedings. Rule 13 of the 1993 Rules is wide enough to empower the Chairman to make the order he made on 6 November 1998.
9. The Trust's submission, if accepted, would result in anomalous situations which Parliament probably did not intend to create. It is not uncommon for the circumstances of a dismissal to give rise to three claims: (a) unfair dismissal contrary to the Employment Rights Act 1996 ; (b) wrongful dismissal at common law; and (c) discriminatory treatment contrary to the 1976 Act (or the Sex Discrimination Act 1975 or the Disability Discrimination Act 1995). It is accepted by the NHS Trust that claims (a) and (b) would survive death. I can think of no rational ground on which Parliament would intend that claim (c) arising out of the very same facts should perish with the victim. The death of the victim may add to the problems of proving discrimination, but that would also be true of claims for unfair and wrongful dismissal based on the alleged discriminatory conduct of the employer.
ORDER: Appeal allowed with costs.
(order does not form part of the approved judgment)




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