LORD JUSTICE SLADE: This is an appeal by Mr. Abdul Aziz from a judgment of the Employment Appeal Tribunal given on 20th May 1986 (reported at (1986) 1 R.I.R. 435), whereby the Tribunal dismissed his appeal from a decision of the Industrial Tribunal given on 13th February 1985. By that decision the Industrial Tribunal had dismissed a claim made by him against the six respondents under the Race Relations Act 1976 ("the Act").
The appellant is a taxi proprietor and operator of Asian origin. The taxi drivers in Coventry have organised themselves into a number of groups. One of them is the first respondent, Trinity Street Taxis Limited ("T.S.T."). The other respondents are members of T.S.T. who, in one way or another, were concerned in the expulsion of the appellant from T.S.T., which has given rise to the present complaint.
We take the description of T.S.T. more or less verbatim from the judgment of the Employment Appeal Tribunal delivered by Mr. Justice Wood. T.S.T. is a company limited by guarantee which was incorporated in 1968. Its objects set out in the Memorandum of Association are mainly to operate as an association to promote the well being of owners and operators of taxi-cabs registered in the City of Coventry who become members and, in particular, to promote and watch over and protect the general interests of its members. In particular, T.S.T. maintains and promotes a radio system for the sole benefit of such members as wish to take advantage of its services. The Articles of Association make Provision for such matters as the election of members and the payment of subscriptions, and by Article 13 a procedure for the expulsion of members. 5.S.T. was the successor of a previously unincorporated association of taxi drivers and for many years it has provided a service to the public of a fair system giving a reasonable return to its members. As Mr. Justice Wood observed, this was in many respects a team effort where it was Necessary to have a relationship of trust.
In the summer of 1983 the appellant was concerned at what he considered the arbitrary imposition of a fee of £1,000 to enable a third taxi of his to be admitted to the radio system of T.S.T. The Industrial Tribunal in the present case made the following findings of fact (in paragraph k of their Decision):
"In June and July 1983 Mr. Aziz, in broad terms, considered that he was being unfairly treated. His feelings about that had not crystallised so as to focus upon the possibility that he might be discriminated against under the terms of the Race Relations Act, but such a possibility was beginning to form in his mind. Mr. Aziz considered that there was a danger that the members who were sympathetic towards him might be prepared to express their view privately to him but might not be prepared to do so in public. Indeed he thought that some of the members, apparently sympathetic towards him, might say one thing to him and another thing to the committee of T.S.T. He therefore decided that he would make tape recordings of conversations which he had with members apparently sympathetic to his view. He did so without telling them that he was making such tape recordings. He proceeded, in June and July 1983, to record conversations which he had with Messrs. Carter, Cleaver, Wright, Jamieson, Magee, Grodowski and Bates."
Having consulted the Commission for Racial Equality, the appellant made an application to the Industrial Tribunal on 6th October 1983 raising his complaint as to the imposition of the £1,000 fee. Until March 1984 none of the members of T.S.T. knew that the tape recordings had been made. In that month their existence was disclosed in the course of discovery in the Tribunal proceedings.
During April 1984 an identically constituted Tribunal heard the appellant's complaint arising out of the imposition of the £1,000 fee and a further complaint by him arising out of a decision of T.S.T. made in January 1984 excluding more than one taxi per member from the system. At the same time the Tribunal heard complaints against T.S.T. and others made by three other complainants, all of Asian origin. The existence of these tape recordings was mentioned at the hearing but they were not put in evidence and their contents were not referred to. On 9th July 1984 the Tribunal rejected all these complaints.
Towards the end of July 1984 Mr. Carter first heard of the existence of the tape recordings. He had not been called to give evidence at the previous hearings of the Tribunal. If he had given evidence, he would have been minded to support the appellant. However he was annoyed about the tape recordings and decided to take an initiative. This initiative ultimately led to the expulsion of the appellant from T.S.T. on 18th November 1984 at a general Meeting which by a majority confirmed a decision of T.S.T.'s Committee to the like effect taken on 3rd November 1984. At the General Meeting a report of T.S.T.'s secretary was read, which said (inter alia):
"The Committee felt that this was an unjustified intrusion and that trust and good faith between members was and is essential. The recordings made by Mr. Aziz was a serious breach of the trust which must exist between members......
"The committee wish to state that they recognise the right of any member and endorse that right whatever their race, creed or colour to pursue a grievance in the courts and to obtain judgment. What is called into question however in this case is the conduct of the member Mr. Aziz."
It is common ground that, in the expulsion of the appellant from T.S.T., the Articles of T.S.T. were duly complied with. Section 5M1) of the Act, so far as material, provides that:
"A complaint by any person ('the complainant') that another person ('the respondent') —
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part H ..... may be presented to an industrial tribunal."
Section 11, which is contained in Part II of the Act, so far as material, provides:
"(1) This section applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.
....
"(3) It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him — ..... (b) by depriving him of membership......".
It is common ground that T.S.T. is an organisation to which section 11 applies.
On 22nd November 1984 the appellant presented an application to the Industrial Tribunal which, while not in terms referring to section 11(3)(b), clearly amounted to a complaint that T.S.T. had unlawfully, contrary to that subsection, discriminated against him by depriving him of membership of T.S.T.
As the wording of section 11(3) shows, the mere deprivation of a member of a relevant organisation of his membership is not by itself rendered unlawful by the section. It is thereby rendered unlawful only if the deprivation amounts to "discrimination" within the meaning of the Act. Part I of the Act (sections 1 to 3) defines the "discrimination" to which the Act applies. Section 1 (read together with section 3 which defines "racial grounds" and "racial group") defines what is described in the heading to the section "racial discrimination". Section l(l)(a) defines a form of discrimination which occurs where one person "on racial grounds" treats another "less favourably than he treats or would treat other persons". Section l(l)(b) defines other less direct forms of racial discrimination.
We mention section 1 of the Act only to stress that the form, of discrimination alleged against T.S.T. is not that form defined by section 1. No reliance is placed on section 1. The appellant founds his case on the quite different form defined by section 2, which is described in the heading to the section as "Discrimination by way of victimisation".
Section 3(3) provides in effect that while references in the Act to "racial discrimination" refer to any discrimination falling within section 1, references to "discrimination" refer to any discrimination falling within section 1 or section 2.
Section 2, relating to discrimination by victimisation, provides:
"(1) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has — (a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
"(2) Subsection O) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith. "
The Industrial Tribunal said this in paragraph 19 of their Decision:
"We ask ourselves whether the making of the tape recordings by Mr. Aziz in June and July 1983 was an act which comes within the ambit of paragraphs (a) to (d) of section 2(1). We find that the making of those tape recordings was an act done by Mr. Aziz by reference to the Race Relations Act 1976 in relation to T.S.T. At the time when he had made those tape recordings, Mr. Aziz had not focussed his mind specifically on any provision of the Race Relations Act 1976 and in particular upon the provisions of section 11. If it is admitted, as we agree, that those tape recordings were properly the subject of discovery in March 1984 we cannot see how it can be argued otherwise than that they were made by reference to the Race Relations Act 1976 and the allegations being made by Mr. Aziz, which later crystallised as allegations of racial discrimination under section 11 of the 1976 Act."
The Tribunal thus made a finding that the appellant, in making the tape recordings, had done an act falling within section 2(1)(c). The Tribunal then proceeded to consider whether T.S.T. had treated the appellant "less favourably than in those circumstances [it] treats or would treat other persons". In making this comparison, and following the guidance given by Mr. Justice Slynn in Kirby v. Manpower Services Commission (1980) I.C.R. 420, they apparently regarded the relevant question as being whether other persons who made undisclosed tape recordings of conversations relating to the business and activities of T.S.T. in a controversial context would be treated in the same way. They came to the conclusion that they would, saying (in paragraph 21 of their Decision):
".... we find that the general attitude of the members of the committee was that an unrepentant tape recordist of conversations between members on controversial issues in connection with the business of T.S.T. should be expelled from membership. We find on the balance of probabilities that a member of T.S.T. who made undisclosed tape recordings of conversations relating to the business and activities of T.S.T. in any controversial context, would be treated on broadly the same basis as Mr. Aziz if a petition was presented for their expulsion.".
Substantially on these grounds the Tribunal found that T.S.T. had not victimised the appellant within section 2 of the Act and dismissed his application.
At no time has the appellant sought to rely on section 2(1)(a) or (d), although he had previously brought proceedings against T.S.T. and had made allegations against them to the Commission for Racial Equality. The reason, no doubt, was that no sufficient causative link between those acts on his part and his subsequent expulsion from membership could be established.
One of his grounds of appeal to the Employment Appeal Tribunal was that the Industrial Tribunal should have found in the circumstances that the appellant's act fell within section 2(l)(b) as well as section 2(l)(c). However the Employment Appeal Tribunal rejected this particular submission and it has not been repeated in this Court. Mr. Stephen Sedley, Q.C., on behalf of the appellant, has not relied on any of the sub-paragraphs of section 2(1), except sub-paragraph (c). He has therefore accepted that if this appeal is to succeed, one hurdle (among others) which the appellant has to surmount is to satisfy us that the making of the tapes was an act falling within sub-paragraph (c). In these circumstances we propose to deal with this question first.
We have already recited the most relevant findings on this point of the Industrial Tribunal (in paragraphs 4 and 19 of their Decision). Before the Employment Appeal Tribunal the respondents by way of cross-appeal contended that there was no evidence upon which the Industrial Tribunal could have found that any activity of the appellant fell within any of the sub-paragraphs (a) to (d) of section 2(1).
The wording of sub-paragraph (c) is "otherwise done anything under or by reference to this Act in relation to the discriminator or any other person". Mr. Justice Slynn in Kirby v. Manpower Services Commission (supra) at page 425 said, in relation to the word "under": "For it to be done under the Act one must find a specific statutory provision under which the report was made and there is none." On this appeal the correctness of this statement has not been challenged and no reliance has been placed by the appellant on the word "under". The question is whether he made his tape recordings "by reference to the Act".
The Employment Appeal Tribunal in the present case dealt with the matter thus:
"Finally, in considering paragraph (c) we respectfully share the difficulties experienced by the Appeal Tribunal in Kirby (supra). It seems to us that the word •otherwise' indicates that it was intended to cover actions falling outside paragraphs (a) and (b). As in Kirby we share the problem that paragraph (c) does not come last, but we feel that it was probably intended to cover actions relating to proceedings. It is the 'sweep-up clause' for paragraphs (a) and (b). For the same reasons as given in, Kirby we do not find that the making of the tapes was an act 'under' the Act in paragraph (c). The finding of the tribunal was that when the claimant made the tapes his feelings about his treatment had not crystallised, so as to focus upon the possibility that he might be discriminated against under the Act. Thus he was merely making speculative investigations, and in our judgment was not doing anything with reference to the Act. However, when he gave those tapes to his solicitor he was, in our judgment, doing such an act. We therefore reject the cross appeal."
Thus the Employment Appeal Tribunal found that the making of the tape recordings by the appellant did not itself fall within section 2(1)(a) to (d) of the Act. If this finding were correct,, it would, in our judgment, inevitably follow that the appellant's complaint based on section 2 would fail for the reasons given in a respondent's notice. The unchallenged finding of the Industrial Tribunal was that the appellant was expelled from T.S.T. by reason of the making of the tape recordings (not the handing of the tapes to the solicitors). Accordingly, the necessary causative link between the relevant section 2(1)(c) act and the unfavourable treatment would not be established.
However, one of the grounds of appeal before us is that the Employment Appeal Tribunal erred in law in oversetting the Industrial Tribunal's finding in paragraph 19 of their Decision that the making of the tape recordings (as distinct from the handing of the tapes to the appellant's solicitor) was an act done by him "by reference to" the Act in relation to T.S.T. within the meaning of section 2(1)(c).
Mr. Thomas Morison, Q.C., on behalf of the respondents, in seeking to support this part of the Employment Appeal Tribunal's Decision, pointed out that the Industrial Tribunal's finding in paragraph 19 appears to have been based at least in part on the proposition that, because the tapes were properly the subject of discovery in May 1984, they must have been made "by reference to the Act". He submitted - and we agree - that this is a non sequitur. He further submitted that on the findings of fact set out in paragraphs 4 and 19 of the Industrial Tribunal's decision, the tapes were made at a time when, at best, the possibility of Race Relations Act proceedings was only at the back of the appellant's mind.
We see the force of this submission and of the comment of the Employment Appeal Tribunal that, in making the tapes, the appellant was merely making speculative investigations. We do not think that the Industrial Tribunal's findings of fact on this point in paragraph 4 of their Decision (particularly the second sentence) were entirely happily or clearly expressed. Nevertheless, as we read their Decision, they at least found (expressly or by necessary inference) that at the time when he made the recordings (i) the appellant considered that he was being unfairly treated by T.S.T. by reason of the imposition of the £1,000 fee; (ii) the possibility was beginning to form in his mind that this might amount to a form of racial discrimination and that correspondingly some form of legal redress might be available to him; (iii) he considered it possible that the secretly taken tape recordings might assist him if and when he chose to pursue that redress.
In our judgment, this was enough to entitle the Industrial Tribunal as a matter of law to find that the appellant, in making the tapes, had done an act "by reference to" the Act in relation to T.S.T. The phrase "by reference to" is, in our judgment, a much wider one than "under" and should be read accordingly. An act can, in our judgment, properly be said to be done "by reference to the Act" if it is done by reference to the Race Relations legislation in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act. The inapposite reference by the Industrial Tribunal to discovery in March 1984 does not, in our judgment, vitiate their conclusion on this point, which should stand.
On this particular point therefore this appeal is, in our judgment, well founded. The making of the tape recordings was, in our judgment, an act done by reference to the Act in relation to T.S.T. and we proceed to deal with the outstanding issues accordingly.
The clear legislative purpose of section 2(1) is to ensure, so far as possible, that victims of racial discrimination shall not be deterred from doing any of the acts set out in paragraphs (a), (b), (c) and (d) by the fear that they may be further victimised in one way or another. To this extent the various categories of acts set out in paragraphs (a), (b), (c) and (d) may fairly be described as "protected acts" and for brevity we will refer to them collectively by this description.
It will be seen that section 2(2) expressly removes from the ambit of protected acts any false allegation not made in good faith. Perhaps certain further restrictions should be placed on the categories of protected acts by a process of necessary implication, e.g. so as to exclude from category (c) any acts involving a breach of the criminal law. However we do not find it necessary to express a view on this point. It has not been suggested that the making of the tape recordings in the present case was illegal.
The appellant has, in our judgment, shown that he has done a protected act falling within category (c). However, in order to show that there has been discrimination by victimisation within section 2(1) of the Act, he still has to satisfy us that, in expelling him from membership, T.S.T. (1) "in any circumstances relevant for the purposes of any provision of this Act [treated the appellant] less favourably than in those circumstances it treats or would treat other persons", and (2) did so by reason that the appellant had "otherwise done anything ..... by reference to this Act in relation to the discrimination ....." within the meaning of section 2(1)(c).
We shall now turn to the first of these two issues and conclude by dealing with the issue of causation.
The effect of section 2 of the Act was considered in some depth by the Employment Appeal Tribunal in Kirby v. Manpower Services Commission (1980) I.C.R. 420, a decision which has featured prominently in argument in this appeal. In that case the complainant was employed as a clerk at a job centre. Information received by him from would-be employers and employees was to be treated as confidential. He reported to the local Council of Community Relations (inter alia) that one prospective employer, a bus company, had refused to interview a black man and that another, a nursing home, had asked whether an applicant was black. The manager of the job centre, hearing of the complainant's action, moved him to a job as a filing clerk where he had no contact with the public. He complained to an industrial tribunal which dismissed his complaint.
On appeal, the Employment Appeal Tribunal upheld the decision. Mr. Justice Slynn in delivering their judgment said this (at page 424 C-F):
"In seems to us that the words 'any circumstances relevant for the purposes of any provision of this Act' which appear not only in section 2 but also section 1 are referring to the areas with which this Act is concerned. 'Any circumstances relevant for the purposes of any provision of this Act' include the field of employment, they include education, they include the provision of goods, facilities, service and premises, and a number of other matters which are specified in the Act. It is only if it is so construed that it is possible to read the phrases 'in any circumstances' and 'in those circumstances' in a way which seems to us to make sense. So for the present case we have to ask whether there has been discrimination in relation to employment by a person in an establishment in Great Britain of another person. And one • then has to ask the question whether the discriminator has treated the person victimised in the circumstances of employment at the establishment in Great Britain less favourably than other persons by reason of one of the matters alleged. So really two questions have to be looked at. The first question is whether a person (the person victimised) has been treated in the employment field less favourably than the employer would treat other persons in that field. The second question which has to be looked at is whether the employer (the discriminator) has done so by reason of one of the specified matters."
Mr. Justice Slynn proceeded to hold that the reports of the incidents concerning the nursing home and the bus company were acts done "by reference to the Act in relation to any other person" (namely, the subject of the discrimination), within the meaning of section 2(1)(c) — in other words, were what in this judgment we have called "protected acts". Mr. Justice Slynn then went on to pose the question (at page 427B) whether the employers treated the complainant less favourably than they treated, or would treat, other persons by reason of the report which he had made! He dealt with the proper approach to this problem as follows (at page 427 B-D):
"The proper approach to this part of the section has led to considerable argument before us, as it undoubtedly did before the industrial tribunal. It seems to us that one thing is plain: that it is not right simply to ask whether the complainant was treated in the same way as other people who did one of these acts which are set out in paragraphs (a), (b), (c) and (d). If that were law, then the employer could only escape if he could show that he had victimised all the relevant people; he would fail if it were shown that he had only victimised some of them. Nor, on the view which we have taken, is it enough simply to consider whether the detriment which is imposed is the same in all these cases. It seems to us that what has to be looked at is the reason given by the employer for the dismissal or removal and to ask whether other persons who committed an act of a similar kind would be treated in the same way or less favourably."
We pause to observe that, with great respect to Mr. Justice Slynn, we found this particular passage in his judgment a little difficult to follow. We are not quite certain how the second sentence should be reconciled with the last, particularly bearing in mind that the complainant in that case had done an act falling within paragraph (c).
A little later (at page 427 G-H) Mr. Justice Slynn summarised the question for decision as being "whether it has been shown that these employers treated the complainant less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind."
Mr. Justice Slynn (at page 428) reiterated that the right question was "whether people who gave away information of this kind or information which is received in confidence would be treated on broadly the same basis."
Applying that test, the Employment Appeal Tribunal in Kirby concluded that, on the facts as found, there had been no "discrimination" within the definition contained in section 2(1) of the Act.
In the present case, the Industrial Tribunal regarded themselves as bound by the same test and came to the like conclusion on the basis of their findings of fact. Mr. Justice Wood however in delivering the judgment of the Employment Appeal Tribunal formulated a test in rather different terms, saying (at (1986) I.R.L.R. at page 439):
"However the question which we would have to put to ourselves is: 'Has the claimant proved, in the relevant circumstances as we have found them to be, that the respondent, judged objectively as a reasonable person in his position, has treated the claimant less favourably than in those same circumstances he would have treated other persons in the position of the claimant ignoring the fact that the relevant circumstances or some of them fell within paras, (a) to (d)?'"
In other words the Employment Appeal Tribunal contemplated that, while the relevant comparison should still be with other persons who committed an act of a similar kind, there should be eliminated from consideration, in the course of the comparison, the fact that the act in question was of a protected nature.
It is common ground that the opening words of section 2(1), containing the phrase "less favourably than", necessitate a comparison of some kind or another. However in the forefront of his argument on behalf of the appellant, Mr. Sedley, Q.C., has submitted that the tests of comparison adopted in the present case respectively by the Industrial Tribunal (following Kirby) and by the Employment Appeal Tribunal were the wrong tests. The relevant comparison in the present case, he has suggested, is not with other members of T.S.T. who have done or might do the relevant protected act, but with those who have not and would not do it.
The key to the correct relevant comparison in our judgment lies in correctly identifying the relevant "circumstances" for the purpose of section 2(1) (in the present case in the context of a complaint under section 11(3)(b)). For this purpose it is relevant to consider the pattern of the Act. Part I (sections 1 to 3) defines the two distinct types of discrimination which we have already mentioned. Part II (sections 4 to 16) contains a large number of sections which render specified acts or omissions in the employment field unlawful if, but only if, they amount to discrimination (as defined by sections 1 or 2). Part III contains a large number of sections which render specified acts or omissions in the fields of education, goods, facilities, services and the disposal and occupation of premises unlawful if they amount to discrimination as so defined. Part IV makes further specified acts of a discriminatory nature unlawful.
In regard to a claim made under sections 2 and M2)(c), to which presumably similar considerations would apply, Mr. Justice Slynn in Kirby apparently considered the relevant "circumstances" as including the reason given by the employer for the dismissal or removal: (see for example at page 427D of the report). Mr. Morison similarly submitted that in the context of a complaint such as this, based on section 11 (3)(b) of the Act, the relevant "circumstances" referred to in section 2(1) must include not only the membership of the complainant of the relevant organisation, but also the termination of his membership and the reasons for the termination. Mr. Sedley however submitted that in this context the relevant "circumstances" simply refer to the complainant's membership of the relevant organisation. As he put it, the treatment cannot be part of the circumstances.
We would accept the last-mentioned submission. The wording of section 2, in our judgment, plainly contemplates that the relevant circumstances will already subsist at the time when the treatment complained of occurs. Thus in our judgment in the present case, while the appellant's former membership of T.S.T. clearly is a relevant circumstance, the expulsion itself, being itself the treatment complained of, clearly is not.
The next question is whether the relevant circumstances include the circumstances giving rise to the termination of the complainant's membership or employment, as the Employment Appeal Tribunal considered in Kirby. A complaint made in reliance on section 2 necessarily presupposes that the complainant has done a protected act. If the doing of such an act itself constituted part of the relevant circumstances, a complainant would necessarily fail to establish discrimination if the alleged discriminator could show that he treated or would treat all other persons who did the like protected act with equal intolerance. This would be an absurd result and, in view of the separate, second limb of section 2(1), directed to the questions of causation to which we are about to come, such a construction is not, in our judgment, required for the protection of persons who might otherwise be found to have discriminated unlawfully by virtue of the subsection. In our judgment, for the purpose of the comparison which section 2(1) makes requisite, the relevant circumstances do not include the fact that the complainant has done a protected act.
In our judgment therefore Mr. Sedley is right in submitting that the respective tests applied by the Employment Appeal Tribunal in Kirby and in the present case, for the purpose of effecting the comparison made requisite by the opening words of section 2(1), were not the correct tests.
The treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which he has applied or would apply to persons who have not done the relevant protected act.
Applying this test, it is clear that on the facts of the present case and in the circumstances relevant for the purposes of sections 2 and 1l(3)(b) (i.e. the appellant's membership of T.S.T.), T.S.T, has treated the appellant "less favourably than in those circumstances [it] treats other persons", i.e. by expelling him from membership. On this point the appellant's argument is, in our judgment, well founded.
However if the appellant is to establish unlawful discrimination within section 2(1), he still has to surmount the hurdle of causation presented by the second limb of the subsection. He has to go on to show that T.S.T. so treated him by reason that the appellant had (within the meaning of section 2(l)(c)) "otherwise done anything under or by reference to this Act in relation to the discriminator or any other person".
We have already accepted that the act of the appellant in making the secret tape recordings was a protected act falling within the wording of this subsection. On the other hand the findings of the Industrial Appeal Tribunal make it clear that the mere fact that tie appellant had, as it happened, made these tape recordings with the purpose of collecting material which might be useful if and when he chose to seek redress under the Race Relations legislation had no bearing at all on T.S.T.'s decision to expel him from membership. That decision had been taken because its members, or the majority of them, considered that the making of the secret recordings had been an underhand action and a breach of trust. On the findings of fact of the Industrial Tribunal, it seems clear that T.S.T.'s decision would have been the same, even though the appellant's purpose in making the recording had had nothing to do with the Race Relations legislation.
In the circumstances, the question arises whether a complainant who relies on category (c) of section 20) can surmount the hurdle of causation when he cannot show that the fact that the relevant protected act was done by the complainant under or by reference to the Race Relations legislation in any way influenced the alleged discriminator in his treatment of the complainant.
Mr. Sedley pointed out that the purpose of section 2 has an obvious though partial analogy to the law of contempt. (Lord Justice Bingham made the same point in relation to the corresponding section 4 of the Sex Discrimination Act 1975 in Cornelius v. University of Swansea (1987) I.R.L.R. 141 at page 145). He submitted that, under the ordinary law of contempt, cases may arise where persons may find themselves guilty without any degree of mens rea. Under section 2(1) of the Act, he submitted, the state of mind of the discriminator is relevant only in so far as it is relevant in establishing the unfavourable^ treatment. In. a case where a complainant is relying on category (c), he submitted, it is not necessary for the complainant to show that the discriminator had the Race Relations legislation in mind in applying the unfavourable treatment. In such a case, he submitted, the only intention on the part of the discriminator which is relevant is the intention to do the discriminating act. Indeed, if we understood the tenor of his argument correctly, he would submit that a complainant invoking section 2(l)(c) and section 11(3)(b) could succeed in establishing unlawful discrimination even though the respondent, in terminating his membership of the relevant organisation, had not been aware that the act of the complainant to which the respondent had objected had been done "under or by reference to the Act".
In our judgment this construction of section 2(1) cannot be correct. Section 56 of the Act confers on an industrial tribunal wide powers to order the payment of compensation where it finds that a complaint presented to it under section 54 is well founded.
Section 57(1) provides:
"A claim by any person ('the claimant') that another person ('the respondent') — (a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part III; or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the claimant, may be made the subject of civil proceedings in like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty."
Section 57(3) provides limited exemption to the following extent:
"As respects an unlawful act of discrimination falling within section l(l)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds."
However section 57 affords no corresponding exemption as respects an unlawful act of discrimination falling within section 2.
Particularly in the light of sections 56 and 57, we are unable to accept that Parliament would have intended that a claimant, in reliance on category (c) of section 2(1), can establish unlawful discrimination within that section, even though the evidence shows that the fact that the protected act had been done under or by reference to the Race Relations legislation in no way influenced the alleged discriminator in his treatment of the complainant. In such a case, in our judgment, on the true construction of section 2(1), if the necessary causal link is to be established, it must be shown that the very fact that the protected act was done by the complainant "under or by reference to" that legislation, influenced the alleged discriminator in his unfavourable treatment of the complainant.
We accept that a person can treat another "less favourably than .... he treats or would treat other persons" within the meaning of the opening words of section 2(1), even though the relevant treatment itself has no racial element. Paragraphs (a), (b), (c) and (d) of section 2(1) however are all concerned with the motive which caused the alleged discriminator to treat the complainant less favourably than other persons. In our judgment paragraph (c) no less than paragraphs (a), (b) and (d) contemplates a motive which is consciously connected with the Race Relations legislation.
In the present case the evidence does not establish that the fact that the recordings were made by the appellant by reference to the Race Relations legislation in any way influenced T.S.T. in expelling the appellant from membership. Subject therefore to referring to one further recent authority, we agree with the Employment Appeal Tribunal that the appellant failed to prove the necessary element of causation and that this alone must dispose of his claim.
In conclusion, we must refer to the recent decision of this Court in Cornelius (supra). In that case Mrs. Cornelius made a number of complaints against the College under the Sex Discrimination Act 1975. That Act contains provisions concerning discrimination on the grounds of sex closely corresponding with provisions in the Race Relations Act 1975 concerning discrimination on the grounds of race. Section 4 also contains provisions relating to discrimination by way of victimisation closely corresponding with section 2 of the Act which we have to consider. In particular, section 4(1)(a) of the Act of 1975 provides:
"A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has — (a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970.....".
Section 6(2) provides:
"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her — (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment."
The complaints of Mrs. Cornelius were substantially four. The third of them was that the College had refused to act on her request for a transfer pending a decision on her appeal against an earlier Industrial Tribunal decision. The fourth was that the College had refused to allow her complaints to be heard under its grievance procedure, pending a decision of that Tribunal.
In the context of the third and fourth complaints, Lord Justice Bingham (with whose judgment Sir John Donaldson, Master of the Rolls, and Lord Justice Fox agreed) said this (at page 145):
"In this appeal the crucial provision is section 4(1)(a). For the appellant's complaint to succeed here it would have to appear, (i) that in refusing or omitting to afford the appellant access for opportunities for transfer or by subjecting her to the detriment of denying her access to the grievance procedure the College treated the applicant less favourably than it would in the same circumstances have treated other persons; and (ii) that it did so because the appellant had brought proceedings against the College under the Act. That is the effect, on the facts here, of reading section 4(l)(a) into section 6(2)(a) and (b)."
Lord Justice Bingham (at pages 145 and 146) dealt with these two issues as follows:
"There is no finding here that (i) is made out, and it would certainly not be safe to infer that conclusion from the findings which have been made. The same is, in my judgment, true of (ii). There is no reason whatever to suppose that the decisions of the Registrar and his senior assistant on the applicant's requests for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decisions. No doubt, like most experienced administrators, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings. They accordingly wished to defer action until the proceedings were over. But that had, so far as the evidence shows, nothing whatever to do with the appellant's conduct in bringing proceedings under the Act. There is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied. If the appellant was victimised, it is not shown to have been because of her reliance on the Act. I differ from the Employment Appeal Tribunal's view that a breach of section 4 was established."
It would appear from the report that the Kirby decision was not referred to in any of the judgments and may not have been cited in argument.
Mr. Morison, however, submitted that the observations of Lord Justice Bingham on issue (i) contemplated a comparison similar to that which Mr. Justice Slynn had made in Kirby. This may or may not be so. However it is not necessary to pursue the point, since it is, in our judgment, plain that the brief observations of Lord Justice Bingham in the context of victimisation were not part of the ratio of his judgment, which rested on the issue of causation. This is made clear by the sentence beginning "If the appellant was victimised .....". The ratio of his decision, as we read it, was that the decision of the College relating to the applicant's request for a transfer and a hearing under the grievance procedure were not "influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act (our emphasis), and that "there is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied". In other words the appellant failed on the issue of causation.
In our judgment the decision in Cornelius on the causation issue in no way conflicts with the conclusion which we have reached on the equivalent issue in the present case and could be said to support it. In our judgment, for the reasons which we have given concerning that issue, the Employment Appeal Tribunal reached the right decision. We accordingly dismiss this appeal.
(The appeal was dismissed with costs. The Court refused the appellant leave to appeal to the House of Lords)
