COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE PETER CLARK
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE LAWRENCE COLLINS
| Stephen English
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Ms Shirley Bothroyd and Mr Robert Palmer (instructed by Messrs Bolitho Way) for the Respondent
Hearing dates : 31 October 2008
Crown Copyright ©
LORD JUSTICE LAWS :
THE REGULATIONS AND THE DIRECTIVE
"5 Harassment on grounds of sexual orientation
(1) For the purposes of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect."
The subjection of an employee to such harassment is made unlawful by regulation 6(3).
"(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.
(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community…
The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment…
Concept of discrimination
1. For the purpose of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1…
3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member State."
THE DECISION OF THE EMPLOYMENT TRIBUNAL
"We therefore conclude that section 1(1)(a) covers all cases of discrimination on racial grounds whether the racial characteristics in question are those of the person treated less favourably or of some other person. The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations. "
THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL
"For the purposes of this Directive, the following definitions shall apply… harassment: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment…"
S.4A(1)(a) of the 1975 Act provided:
"For the purposes of this Act, a person subjects a woman to harassment if (a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect…"
There are then set out consequences, including violation of the woman's dignity, which are taken from the Directive.
"22. … [T]hey did so because they perceived him as having stereotypical characteristics which they associated with a gay person; he went to boarding school and lived in Brighton. Insofar as that answer brings the claimant within the DTI explanatory note, paras, 24-25, he falls within the reach of Regulation 5."
But the EAT rejected this case. They said:
"23. We cannot accept that analysis. The difficulty facing the claimant on the facts adopted by the Employment Tribunal is that not only did the alleged harassers not perceive the claimant to be gay; he fully accepted that that was the position.
24. In these circumstances we have concluded that, on the facts, the unwanted conduct was not on grounds of sexual orientation. The homophobic banter (on the necessary assumption, contrary to the respondent's case) unacceptable as it was, was a vehicle for teasing the claimant, as Ms Bothroyd submits. It was not based on their perception nor even incorrect assumption that he was gay."
THE FIRST QUESTION
"42. Mr Bowers submitted that Serco's decision to dismiss Mr Redfearn was based on considerations relating to the race of third parties, their perceived hostility to his views and his perceived attitude to the race of third parties. That was direct discrimination 'on racial grounds'. The employment tribunal had misapplied the law. Race considerations had significantly influenced the decision to dismiss on 'health and safety grounds' which could not be relied on as a justification for direct race discrimination. Mr Bowers argued that any concern on the part of a tribunal or court about the consequences of appearing to permit racist conduct, as might occur in allowing a claim like the present case, could be dealt with at the stage of remedy.
45. Mr Bowers' proposition turns the ratio of Showboat and the policy of the race relations legislation upside down. It would mean that any less favourable treatment brought about because of concern about the racist views or conduct of a person in a multi-ethnic workplace would constitute race discrimination. The ratio of Showboat is that the racially discriminatory employer is liable 'on racial grounds' for the less favourable treatment of those who refuse to implement his policy or are affected by his policy. It does not apply so as to make the employer, who is not pursuing a policy of race discrimination or who is pursuing a policy of anti-race discrimination, liable for race discrimination.
46. In this case it is true that the circumstances in which the decision to dismiss Mr Redfearn was taken included racial considerations, namely the fact that Serco's customers were mainly Asian and that a significant percentage of the workforce was Asian. Racial considerations were relevant to Serco's decision to dismiss Mr Redfearn, but that does not mean that it is right to characterise Serco's dismissal of Mr Redfearn as being 'on racial grounds'. It is a non-sequitur to argue that he was dismissed 'on racial grounds' because the circumstances leading up to his dismissal included a relevant racial consideration, such as the race of fellow employees and customers and the policies of the BNP on racial matters. Mr Redfearn was no more dismissed 'on racial grounds' than an employee who is dismissed for racially abusing his employer, a fellow employee or a valued customer. Any other result would be incompatible with the purpose of the 1976 Act to promote equal treatment of persons irrespective of race by making it unlawful to discriminate against a person on the grounds of race."
Moreover it seems to me that for the purposes of Mr Reynold's submission the appellant's supposed "stereotypical characteristics associated with homosexuals" are at best the fifth wheel of the coach. On the assumed facts it is nothing to the point what prompted the nature of the perpetrators' thoroughly nasty conduct. They did not actually think he was gay, and the appellant knew as much.
THE SECOND QUESTION
"Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member State."
"38. ... [I]t does not follow from those provisions of Directive 2000/78 that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the Directive. On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.
50. Although, in a situation such as that in the present case, the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which, according to Ms Coleman, is the ground for the less favourable treatment which she claims to have suffered. As is apparent from paragraph 38 of this judgment, Directive 2000/78, which seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, applies not to a particular category of person but by reference to the grounds mentioned in Article 1."
THE THIRD QUESTION
"It is obviously not just open to a national court, but its obligation, to set out to construe statutes and regulations passed by the Member State so as to render them compliant with a relevant Directive. But, by reference to the aspects which have been in issue at this hearing (save for [sc. certain particular points]) both individually, and in any event collectively, I do not consider that to do so is appropriate – by virtue of the extent of reading down/transposition which would be required to be considered in order to render them compliant: or possible - because I am not persuaded that even such extreme application of the Marleasing principle would in any event be effective: or sensible – because of the need for clarity and certainty, and comprehensibility, by employees and employers alike."
Mr Reynold does not suggest that these conclusions were in any way incorrect in their context. Just like EOC, this present case involves the difference between X being caused by Y and X being related to Y. That is a difference of kind, not merely of degree. To read the first as meaning the second is not an act of interpretation, going "with the grain of the legislation". It is itself, in effect, an act of legislation, and therefore travels beyond what is permissible.
CONCLUSION AND POSTSCRIPT
LORD JUSTICE SEDLEY:
LORD JUSTICE LAWRENCE COLLINS:
Showboat Entertainment Centre Ltd v Owens  ICR 65
Nagarajan v London Regional Transport  1 AC 501
"Section 2 should be read in the context of section 1. Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.
… For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant. …
I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. … Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination. …
Thus far I have been considering the position under section 1(1)(a). I can see no reason to apply a different approach to section 2. 'On racial grounds' in section 1(1)(a) and 'by reason that' in section 2(1) are interchangeable expressions in this context. The key question under section 2 is the same as under section 1(1)(a): why did the complainant receive less favourable treatment? …"