No ET jurisdiction for discrimination claim about registration of immigration business

Under section 120(7) of the Equality Act 2010 (EqA 2010) a claim of discrimination, harassment and/or victimisation may not be brought against a qualifications body in an employment tribunal if, under any Act or statutory instrument, there exists a mechanism whereby an appeal (or ‘proceedings in the nature of an appeal’) may be brought in relation to the act complained of. The Office of the Immigration Services Commissioner is a qualifications body and section 87 of the Asylum and Immigration Act 1999 provides such a right of appeal against a decision not to continue the registration of a business supplying immigration advice and services. Accordingly, where such a decision is made, under EqA 2010 s 120(7), an employment tribunal does not have jurisdiction to hear a claim that such a decision was discriminatory. That is the case even though the appeal process does not provide exactly the same remedies or have the same burden of proof provisions as a discrimination claim does, according to the EAT.

Ali v Office of the Immigration Services Commissioner (UKEAT/0271/19/VP)

What are the practical implications of this judgment?

This judgment provides an example of an ‘appeal, or proceedings in the nature of appeal’ in section 120(7) of the Equality Act 2010. Where such an appeal process exists, an employment tribunal does not have jurisdiction in a discrimination, harassment and/or victimisation claim against a qualifications body.

In particular, this judgment confirms that an employment tribunal does not have jurisdiction to hear a discrimination, harassment and/or victimisation claim against the Office of the Immigration Services Commissioner if that claim relates to a decision by the Commissioner not to continue the registration of a business supplying immigration advice and services. That is because the remedy for that business is instead to bring an appeal against the Commissioner’s decision under section 87 of the Asylum and Immigration Act 1999 in which it can raise the allegations of discrimination, harassment and/or victimisation. The existence of that appeal process ousts the jurisdiction of the employment tribunal by virtue of section 120(7) of the Equality Act 2010.

Case details

• Court: Employment Appeal Tribunal
• Judge: HHJ Auerbach
• Date of judgment: 6 November 2020

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