B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE SLADE
and LORD JUSTICE NEILL
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MARIE DE SOUZA
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Appellant (Applicant)
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and
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THE AUTOMOBILE ASSOCIATION
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Respondents(Respondents)
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(Transcript of the Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London WC2).
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MR. STEPHEN J. SEDLEY, Q.C. and MR. ROBIN ALLEN (instructed by Messrs Snow & Bispham, Basingstoke, Hants) appeared on behalf of the Appellant/Applicant.
MR. ELDRED TABACHNIK, Q.C. and MR. GEORGE F. PULMAN (instructed by Messrs Amery-Parkes & Co., Basingstoke, Hants) appeared on behalf of the Respondents/Respondents.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE MAY: This is an appeal from a decision of the Employment Appeal Tribunal dated 25th October 1984. On that occasion they dismissed an appeal by the present appellant against an order of an Industrial Tribunal sitting at Southampton on 12th January, 1984 registered on 18th January 1984. On that occasion the Industrial Tribunal held that a complaint by the appellant under section 4 of the Race Relations Act, 1976 was not well-founded. In effect, therefore, by this appeal the appellant seeks a decision from this court that she did indeed suffer unlawful racial discrimination at the hands of the respondents contrary to sections 1(1) and 4(2) (c) of the Act and an order that her case should be remitted to the Industrial Tribunal for consideration of the appropriate remedies.
The brief facts of this case are these. The appellant is a coloured woman and was first employed as a secretary-personal assistant to the respondents' then Motor Manager on 4th January 1977. In January 1982 the respondents reorganised their office in Basingstoke and in consequence the appellant was required to work for two managers instead of one. However the managerial workload had been divided and this alteration had no effect upon the appellant's own workload. Nevertheless she and her trade union then started negotiating with the respondents complaining that this change in the nature of her work ought not have been made without her consent and that in any event she was entitled to additional remuneration.
The real substance of this case, however, arises out of the appellant's evidence to the Industrial Tribunal that in about March 1982 she was outside the new manager, Mr. Boud's, office door and heard him tell a Mr. Kincaid, a senior clerk employed by the respondents, to give some typing to "the wog". She went on to say that Mr. Kincaid later told her that this had been said and tried to console her. In fact this allegation formed no part of the appellant's original complaint of discrimination to the industrial tribunal: it was merely referred to in the answers to the usual questionnaire which the complainant completed in respect of her allegations of discrimination. Further, the appellant did not mention in the relevant answer in the questionnaire that she had overheard Mr. Boud saying what she alleged she had heard in her evidence to the Industrial Tribunal: she merely said that Mr. Kincaid had told her that Mr. Boud had told him to "go and get his typing done by the wog",
Mr. Boud denied at the Industrial Tribunal hearing that he had ever used the insulting word and inferred that, if it were used, it was used by Mr. Kincaid. Apparently the latter could not be traced at the time by either of the parties and in consequence did not himself give evidence. In the result the tribunal found that the evidence they had heard was insufficient to establish which of the two men had indeed used the offending word. Nevertheless they were satisfied that the word was used and that it naturally upset the appellant. Later in their Decision the Industrial Tribunal said:
"It showed that all was not well in the department at the time of the remark and that there was an element of racial prejudice there."
The appellant further complained that at the end of 1982 she was not asked to the staff Christmas lunch and contended that this was on racial grounds. She did get the cost of living increase at the end of 1982 as all the other staff did but she received no incremental increase because she was already at the top of the scale in her grade. Still being dissatisfied she asked her union to help and they negotiated with the respondents throughout most of 1983 but without success.
On 26th October 1983 the appellant presented a complaint under section 54 of the Race Relations Act, 1976 to the Southampton Industrial Tribunal to the effect that she had been discriminated against in relation to her employment, in the ways I have described, on racial grounds. As I have said, the incident of the racial insult in March 1982 was no part of the appellant's actual complaint and the Industrial Tribunal merely considered this as evidence in relation to the substantial complaint about employment conditions which they had received. As I have also said, in the event the Industrial Tribunal dismissed such complaint.
By the time that this matter reached the Employment Appeal Tribunal, the appellant was not contesting the tribunal's findings on the matters relating to her conditions of employment to which I have referred. The sole question in the appeal before them related to the racial insult which first came to light as a result of the Commission for Racial Equality sending the questionnaire, answered by the appellant, to the respondents on 17th November 1983. In their judgment the Employment Appeal Tribunal first referred to the fact that the alleged insult had not apparently been intended to be a complaint under section 4 of the Act, but went on to hold that having regard to the fact that the appellant was a litigant in person, the Industrial Tribunal should, if they thought it constituted a proper complaint under section 4, have dealt with it as a complaint in its own right and not simply as evidence of racial prejudice supporting the other complaints. This was the basis upon which the matter was argued before the Employment Appeal Tribunal and upon which they gave their judgment. They considered that the proper approach was to accept the findings of the Industrial Tribunal, namely that someone had said "Give the typing to the wog", but that whether she herself heard it remained in doubt. It was argued before the Appeal Tribunal, as it was before us, that in those circumstances there had quite clearly been discrimination in the employment field contrary to the provisions of section 4(2)(c), it being argued that it would be quite wrong, in an Act designed to prevent discrimination and to control racial prejudice, that an employee can be racially abused, albeit not to her face, and yet not have a remedy. However, the Employment Appeal Tribunal then considered the phrase "other detriment" in the relevant statutory provision, taking into account the relevant authorities to which both they and we were and have been referred. In the result the Appeal Tribunal held that it was in their judgment - "Impossible to say that the use of the phrase by one manager to another (even though overheard by the appellant), deplorable though it is, can properly be described as a detriment." On this ground the appellant's appeal to them was refused, and it was against that refusal that she appealed to us.
I now set out the relevant provisions of the Race Relations Act 1976. Section 1(1)(a) provides that:
" (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons."
Part II of the Act relates to discrimination in the employment field and under that headnote and under the further heading, "Discrimination by employers", the Act provides:
"4. Discrimination against applicants and employees
(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -
(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or
(b) in the terms on which he offers that employment; or
(c) by refusing or deliberately omitting to offer him that employment.
(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."
Section 32 deals inter alia with the liability of employers for the acts of their employees and provides in subsections (1) and (3):
"32. Liability of employers and principals
(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
(3) In proceedings brought under this Act against any person in respect of any act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."
Finally, section 57(4) provides that, "For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head."
In his submissions on behalf of the appellant, Mr. Sedley suggested that the real question for determination was whether an ethnic minority employee who is upset when she hears herself spoken of or referred to as "the wog" by a member of her employer's staff thereby suffers, or is capable of suffering, a "detriment" within the meaning of section 4(2)(c) of the Race Relations Act 1976. This issue was not separately presented to the Industrial Tribunal but it has now been properly identified both by the Employment Appeal Tribunal and also by the single Lord Justice who gave leave to appeal. Mr. Sedley was prepared to accept that the phrase "any other detriment" in section 4(2)(c) must be read in context and submitted that a detriment occurs to an employee within that paragraph of the subsection whenever a person is subjected to some disadvantage in the context of his or her employment. Where, as the Industrial Tribunal found in this case, the gratuitous insult showed that all was not well in the department at the time of the remark and that there was an element of racial prejudice there, what Mr. Sedley described as a hostile working environment had been demonstrated, which was clearly a disadvantage in the context of the appellant's employment. When the insult is based on race, it becomes a detriment by way of racial discrimination by virtue of section 1(1)(a) and thus the case is made out. It there were any doubt whether an insult could have been contemplated by Parliament as being within the concept of detriment, Mr. Sedley submitted that this was resolved by the declaratory provision in section 57(4) that damages under the Act may include compensation for injury to feelings, whether or not they include compensation under any other head.
Even if section 4(2)(c) were to be construed as requiring some detriment akin to dismissal, that is to say impinging on the contract of the employment as distinct from the employment situation alone, then he submitted that the appellant ought still to succeed. It is an implied term of every contract of employment that the employer will give the employee such support and protection as are reasonably necessary to enable her to carry out her duties without harassment or disruption. Any act of any other employee which infringes that duty and which is done in the course of his employment is treated as the employer's act by virtue of section 32(1) and is thus a breach of the actual contract of employment itself.
In reply Mr. Tabachnik on behalf of the respondents pointed out, first, that the findings of fact by the Industrial Tribunal were in truth very limited in extent. There was for instance no finding of this appellant being affected in the way of her employment by this insult. The Employment Appeal Tribunal was thus justified, he submitted, in saying that no reasonable industrial jury could have found a detriment in this particular case.
More generally, Mr, Tabachnik submitted that the 19 76 Act is not intended to prevent the mere holding or indeed expression of racial opinions, save in so far as these demonstrate racial hatred on the one hand or racial discrimination within the provisions of the Act on the other. On the particular construction of the relevant parts of the statute themselves, he submitted, first, that the use of the word "treats" in section 1(1) necessarily involves there having
been a particular relationship between the person treating and the person treated. Consequently if the alleged racially discriminatory treatment had neither been known to the person allegedly treated, nor had it been intended nor foreseen nor anticipated that the alleged treatment would impact upon the person said to have been treated, then the relevant act, in this case the insult, could not be said to have been within the statutory wording.
Further, section 4(2), he submitted, was concerned with the formation, structure and termination of the employment situation and must be construed in that context. First, having regard to the aspects of employment referred to in the sub-paragraphs, all of which are concerned with acts of the employer himself or his delegate in that regard, then an act or omission cannot constitute a "detriment" within the meaning of section 4(2)(c) if it is not the act or omission of such employer or delegate. There was wholly inadequate material before the Industrial Tribunal in this case to satisfy this requirement and on this ground alone the appellant should fail. He submitted that this limited construction of section 4(2) ought to obtain notwithstanding the provisions of section 32. This is a point which I think that one can get out of the way at this stage. In my opinion the wording of section 32(1) and (3) is quite clear and the concept of an employee "acting in the course of his employment" is one only too well-known to the law. I do not think that there is any warrant for restricting the class of actor contemplated by section 4(2) to someone of the type of managerial grade to which Mr. Tabachnik referred.
Further, any attempt to do so would I think raise so many uncertainties which it would be wholly impossible to resolve and that thus Parliament cannot have intended this gloss on the clear meaning of section 32 when applied to the provisions of section 4.
Be that as it may, Mr. Tabachnik then submitted that the word "detriment" in section 4(2)(c) looked not so much to the reaction by the employee to any act of racial discrimination on the part of his or her employer, but to the action of the employer himself. Detriment, he submitted, was something done by the employer to the employee, not something felt by the employee. It stemmed from an act of the employer and was not intended to comprehend the consequent act of the employee, even though this might go to the question of damage. In this context section 57(4) could give no assistance on the proper approach to the word detriment in section 4. The phrase at the end of section 4(2) (c) was intended, he submitted, as a form of sweeping-up clause and just as the preceding parts' of section 4(2) referred to such disadvantages as poor terms of employment, or unfair access to or opportunities for promotion, training or benefits, or indeed a dismissal, so one must construe the word "detriment" in this limited extent as comprising merely those disadvantages in the power of an employer to impose on his employees in his capacity as their employer.
In sum Mr. Tabachnik submitted that the structure of the Act required one properly to construe the nature of the "detriment" and then to ask who had the power to produce it and if that person exercised that power and did produce that detriment but not otherwise, then and then only liability arose.
We were referred to a number of authorities, amongst them Ministry of Defence v. Jeremiah [1980] 1 Q.B. 87. That was a case under section 6(2) (b) of the Sex Discrimination Act 1975, which in so far as is presently material is in the same terms as section 4(2) (c) of the Race Relations Act 1976. A male employee complained that he was being discriminated against compared with female employees doing nominally the same job, in that he and his fellows were required to do a particularly dirty part of the job which their female colleagues were not. The question arose whether the men were being subjected "to any other detriment". At page 99F of the report Lord Justice Brandon said:
"I do not regard the expression 'subjecting ..... to any other detriment' as meaning anything more than 'putting under a disadvantage'."
Lord Justice Brightman, in his turn said at page 104E:
"I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment."
In Kirby v. Manpower Services Commission [1980] I.C.R. 420, a case before the Employment Appeal Tribunal under the 1976 Act, the "detriment" relied on was being moved by the manager of the Job Centre from the position of a first tier clerk interviewing applicants for jobs to that of filing clerk inside the office where the complainant had no contact with the public. The Appeal Tribunal held, following Jeremiah's case, that this would have been a sufficient detriment within the statute, but also held that the complainant had not been treated less favourably than anyone else, white or coloured, would have been treated in the same circumstances.
In B.L. Cars Ltd. v. Brown [1983] I.C.R. 143, a black employee had been arrested and then granted bail. The employers feared that he would attempt to re-enter their plant, possibly using a false name. The Chief Security Officer, therefore, issued instructions to those responsible at the gates of the plant, which included a thorough check on the identity of every black employee trying to enter the premises. Some 28 people complained that this instruction subjected them to a detriment which contravened the 19 76 Act. Some of these were employed by B.L. and some by contractors. The Commission for Racial Equality also issued a complaint that the instruction was unlawful. An Industrial Tribunal decided as a preliminary point that the mere issue of a written instruction could occasion detriment to individual employees. On appeal the Employment Appeal Tribunal, again following Jeremiah's case, upheld the Industrial Tribunal's decision.
In each of these cases the detriment or disadvantage to the employee was in connection with what Mr. Sedley described as his employment context. In the first, it was having to do dirty work: in the second, it was losing the more congenial work at the counter and having to work as a filing clerk in the rear office: in the third, it was being thoroughly checked when coming in to work, substantially more thoroughly than were white fellow employees. Apart from the actual decisions in these cases, I think that this necessarily follows upon a proper construction of section 4, and in particular section 4(2) (c) of the Act. Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress; before the employee can be said to have been subjected to some "other detriment" the Court or Tribunal must find that by reason of the acts or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.
Secondly, however, although on the facts of each of the above cases the acts complained of were those of the employer himself or a manager or another employee in a similar capacity, I disagree with Mr. Tabachnik that this is a necessary feature of these cases. In my opinion section 32(1) is perfectly clear and provided that one finds a disadvantage in the field of the employment of the complainant, then the phrases "in relation to employment by him" and "a person employed by him" in the opening parts of subsections (1) and (2) of section 4 are satisfied and the employer is liable if the employee or employees who have caused the disadvantage were acting in the course of their employment, whether they were of managerial status or not. An employer is entitled to protect himself under section 32(3) and a Code of Practice has been issued .. advising employers what steps to take in this regard and how to bring home to employees the need to avoid any racial discrimination at all.
That the acts which put an employer in breach of section 4 of the 1976 Act do not have to be those of managerial status is made clear by the. most recent case to which we were referred, namely Porcelli v. Strathclyde Regional Council 11 [1985] I.C.R. 1977, a decision of the Scottish Employment Anneal Tribunal. In that case a female laboratory technician employed at a school was subjected to such a campaign of sexual harassment by two fellow male non-managerial technicians that it caused her to apply for a transfer to another school. Her complaint of unlawful discrimination on the ground of her sex, contrary to sections 1(1)(a) and 6(2)(b) of the 1975 Act succeeded on appeal to the Appeal Tribunal.
Nevertheless, as Lord McDonald said in giving the judgment of the Appeal Tribunal, the real question in the case was whether it could be said that the sexual harassment was to the detriment of the applicant within the meaning of section 6(2)(b) of the 1975 Act which, as I have said, is in the same terms as section 4(2)(c) of the 1976 Act. After discussing the interrelation of sections 1(1) and section 6(1) and (2) of the 1975 Act, Lord McDonald continued:
"It was argued on behalf of the applicant that the words "subjecting her to any other detriment" were so universal that they covered acts of sexual harassment committed against her during her employment, without reference to any consequences thereof so far as her employment was concerned. The mere fact that they had been committed automatically placed her employers, perhaps vicariously, in breach of section 6(2)(b) and section 1(1) of the Act of 1975.
We do not think this interpretation is correct. The Act of 1975 does not outlaw sexual harassment in the field of -employment or elsewhere. That is left to the common law in an appropriate case. What it does outlaw in the field of employment is discrimination against a woman within the terms of her contract of employment on the ground of her sex. In certain cases sexual harassment may be relevant in this connection. An employer who dismisses a female employee because she has resisted or ceased to be interested in his advances would, in our view, be in breach of section 6(2)(b) and section 1(1) of the Act of 1975 for reasons arising from sexual harassment. Similarly if, for the same reason, he takes other disciplinary action against her short of dismissal, he would also be in breach. This action could be suspension, warning, enforced transfer, etc., all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment.
If this is a correct interpretation of the statute we ask ourselves what detriment, if any, within her contract of employment, the applicant suffered in the present case. The answer, we feel, is not far to seek. It lies in the fact that on 4 August 1983 she felt obliged to seek transfer from Bellahouston Academy to another school, and this was duly granted with effect from 19 September 1983. The campaign of harassment, including sexual harassment, with the objective of making the applicant apply for transfer had succeeded."
If in the passage from his judgment Lord McDonald must be read as holding that an employee could only be said to have been subjected to a detriment within the true construction of section 6(2)(b) of the 1975 Act, or section 4(2)(c) of the 1976 Act, if the result of the sexual or racial discrimination complained of was either dismissal or other disciplinary action by the employer, or some action by the employee such as leaving the employment on the basis of constructive dismissal, or seeking transfer to another plant, then with respect I think that this was too limited an approach. Thus if in another case the discrimination was such that the putative reasonable employee could justifiably complain about his or her working conditions or environment, then whether or not these were so bad as to be able to amount to constructive dismissal, or even if the employee was prepared to work on and put up with the harassment, I think this too could contravene the subsections. For my part I cannot accept Mr. Tabachnik's submission that the word "detriment" is to be looked at only from the viewpoint of the employer: the whole of the facts of the case have to be considered in the light of the proper construction of section 4(2) (c) of the 1976 Act or section 6(2)(b) of the 1975 Act which I have sought to indicate.
What then is the result when these principles are applied to the instant case? First, even though the use of the insulting word in respect of the appellant may have meant that she was being considered less favourably, whether generally or in an employment context, than others, I for my part do not think that she can properly be said to have been "treated" less favourably by whomsoever used the word, unless he intended her to overhear the conversation in which it was used, or knew or ought reasonably to have anticipated that the person he was talking to would pass the insult on or that the appellant would become aware of it in some other way. I do not find any sufficient findings of fact to this effect by the Industrial Tribunal.
Secondly, and as I have said earlier, in my opinion the appellant could only be held to have been subject to some detriment within section 4(2)(c) of the 1976 Act if not only the same conditions to which I have just referred obtained - for instance that she was intended to overhear it said - but also that both she was and the reasonable coloured secretary in like situation would or might be disadvantaged, that is placed at a disadvantage in the circumstances and conditions in which they were working in the way I have indicated. Although the Industrial Tribunal said that the use of the insult showed that all was not well in the appellant's department at the time of the remark and that there was an element of racial prejudice there, I do not read this as a finding of fact at all, but in any event certainly not one that the appellant was disadvantaged in the sense and context to which I have referred. Further, if this was intended to be a finding of fact to this effect within the principles I have outlined, I respectfully do not think that there was any evidence to support it.
In these circumstances I think that this appellant's complaint to the Industrial Tribunal, as presented, was bound to fail. Mr. Sedley, on her behalf, asked us nevertheless to remit the complaint to the Industrial Tribunal to re-hear it in the light of this judgment. We understood from him that the appellant's advisers had now been able to trace Mr. Kincaid. Mr. Tabachnik on the other hand sought to persuade us not to send the matter back. The appellant had already had her opportunity of making good her complaint. For my part, I entirely agree. The incident' complained of occurred about 2½ years ago and was raised very late in the day. I think it is now far too late to permit the appellant to re-open it.
I would therefore dismiss this appeal.
LORD JUSTICE SLADE: I agree.
LORD JUSTICE NEILL: I also agree,
Order: Appeal dismissed with costs. Application for leave to appeal to the House of Lords refused.
