Law Report: Part-time worker's claim did not depend on sex

Law Report: 17 march 1998: Jesuthasan v London Borough of Hammersmith and Fulham; Court of Appeal (Lady Justice Butler-Sloss, Lord Justice Swinton Thomas and Lord Justice Mummery) 26 February 1998.

A MALE part-time worker in the public sector who had been dismissed prior to the amendment of the Employment Protection (Consolidation) Act 1978 by the Employment Protection (Part-Time Employees) Regulations 1995 was entitled to claim for redundancy and unfair dismissal in the same way as a female employee.

The Court of Appeal allowed the appeal of V.J. Jesuthasan against the decision of the Employment Appeal Tribunal to reverse the decision of the Industrial Tribunal, which had granted him leave to amend his originating application in his claim against his employer, the London Borough of Hammersmith and Fulham.

The applicant, a Sri Lankan national, began employment with the council in November 1990 as a maths teacher at HM Prison Wormwood Scrubs. He worked eight hours a week for three years, and his fixed term contract expired on 30 July 1993 and was not renewed.

In his originating application filed with the Industrial Tribunal the applicant identified his type of complaint as "racial discrimination". The council expressly denied that the applicant had been discriminated against on the ground of his race, and alleged that the sole reason for the decision not to offer him a new contract was that a part-time maths teacher was not required for that academic year. The applicant subsequently applied to amend his originating application to include claims for unfair dismissal and redundancy payment.

Brian Langstaff QC (Hammersmith and Fulham Law Centre) for the appellant; Nigel Giffin (Head of Legal Services, Hammersmith and Fulham) for the council.

Lord Justice Mummery said that the crucial point, which had emerged for the first time on the present appeal, was whether, in consequence of the decision of the House of Lords in R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 (the EOC case), a male part-time worker employed in the public sector was entitled to claim a redundancy payment and compensation for unfair dismissal in respect of a dismissal occurring before the amendment of the Employment Protection (Consolidation) Act 1978 by the Employment Protection (Part-Time Employees) Regulations 1995.

In the EOC case the Equal Opportunities Commission had been granted judicial review of provisions of the 1978 Act, which limited the right to a redundancy payment and protection against unfair dismissal to employees who were able to satisfy the qualifying periods for entitlement. The House of Lords had decided that those provisions were incompatible with EC law and had declared that, in cases covered by them, the qualifying periods for redundancy payments and unfair dismissal were disapplied.

The House of Lords had held that judicial review was not the appropriate procedure to adjudicate on the claims of Mrs Day, an individual applicant joined in the proceedings, but that the Industrial Tribunal would have jurisdiction to decide the questions of indirect discrimination under EC law raised on the judicial review application.

The applicant was in the same jurisdictional position as Mrs Day, and claimed to be entitled to pursue his claims in reliance on the general declarations in the EOC case regarding "employees" and not just "female employees". The council argued that Mrs Day had been entitled to rely on the declarations of incompatability with EC law by reason of indirect discrimination against women, and that the applicant had not been discriminated against on the ground of sex.

Those submissions, however, involved a fundamental confusion both of the general propositions of law in the EOC case, which had disapplied the qualifying periods in respect of employees generally, regardless of sex, and of the nature of the applicant's complaint. He did not complain of sex discrimination, but claimed unfair dismissal and redundancy pay. It would be unjust to refuse to allow the applicant to amend his claim, and the order of the Industrial Tribunal would accordingly be restored.

Kate O'Hanlon, Barrister