Harris as personal representative of Andrews (deceased) v Lewisham and Guys Mental Health Trust [2000] IDS 660

In a welcome decision , the Court of Appeal has overturned the Employment Appeal Tribunal's ruling that a race discrimination claim does not survive the death of the Applicant.

In Harris as personal representative of Andrews (deceased) -v- Lewisham & Guys Mental Health Trust, the Court of Appeal held that a Tribunal claim for compensation for race discrimination is a cause of action under the Law Reform (Miscellaneous) Act 1994 and, as such, it was capable of surviving the applicant's death. It was irrelevant whether or not the claim for discrimination could be described as being of a purely personal nature. It was also irrelevant that the discrimination statutes, unlike the Employment Rights Act 1996, make no provision for the continuation of a claim after the death of the Applicant.

Whatever the deficiencies of the discrimination statutes, it must be right that a discrimination claim should survive the death of an applicant in exactly the same way as other employment related claims survive the death of an applicant under the Employment Rights Act.

In practice however winning a case for a deceased Applicant may be harder. Corroborating evidence, usually rare in discrimination claims, may be crucial as will a signed statement taken from the applicant before death.

A fair decision

R V Broxtowe Borough Council ex Parte Bradford [2000] IRLR 296

In this case , Colin Bradford applied to Broxtowe Council for an employed position as a tennis coach. Before confirming his appointment the Council made inquiries about his employment history. His former employers, Derbyshire County Council, replied detailing three allegations made against him that he had interfered with female pupils whilst coaching at a school in the county.

Derbyshire confirmed that he had been prosecuted in respect of one of the incidents but later acquitted.

Upon receipt of this information Broxtowe arranged a meeting with Mr Bradford. At the meeting he was given a letter which stated that the Council had received information raising concerns as to his suitability to coach and as a consequence of the result of the inquiry he was instructed not to undertake further coaching.

Mr Bradford brought judicial review proceedings in respect of the Council's decision.

Although the High Court found that the Council had acted unfairly in that Mr Bradford should have been given the opportunity to explain, they nevertheless dismissed the application on the basis that the Council's failure to give Mr Bradford an opportunity to explain had not resulted in any injustice. The decision would have been the same in any event.

Mr Bradford went to the Court of Appeal which found that the High Court should have exercised considerable caution before finding that the absence of a hearing had not resulted in any injustice. The High Court had not exercised such caution and so not complied with its responsibility not to interfere with an individual's right to earn a living without proper cause and without exercising the principle of fairness.

In order to have been fair, the Council should have allowed Mr. Bradford the opportunity to respond to the unseen material and correct errors in the account of the matters.

This procedure should have been followed before arriving at a decision. Not to do so was unjust. Mr Bradford's appeal was allowed and the Council ordered to reconsider its decision.

This case reiterates the crucial importance of a fair hearing where a person's livelihood is at stake. These rights may be strengthened still more when the Human Rights Act comes into force in October 2000.