England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE EATRF 95/1596/B

IN THE COURT OF APPEAL (CIVIL DIVISION) EATRF 95/1553/B

(MR JUSTICE BUCKLEY )

Royal Courts of Justice

Strand

London WC2

Wednesday, 11 December 1996

B e f o r e:

LORD JUSTICE MCCOWAN

LORD JUSTICE WAITE

LORD JUSTICE POTTER

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TOWER BOOT COMPANY LIMITED

Appellant

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RAYMONDO JONES

Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR SIMON BUCKHAVEN & MR PHILLIP GALLOWAY-COOPER (Instructed by Messrs Smith Chamberlain, Wellingborough, NN8 4JL) appeared on behalf of the Appellant

MR ROBIN ALLEN QC, MR JOHN WHITMORE & MR THOMAS KIBLING (Instructed by The Principal Legal Officer, Commissioner for Racial Equality, Elliott House, London, SW1E 5EH) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Judgment

LORD JUSTICE MCCOWAN:

Pursuant to leave granted by the Employment Appeal Tribunal the employee, Raymondo Jones, appeals against a decision of the Employment Appeal Tribunal (Buckley J. presiding) dated 13th June 1995 whereby it was ordered that the appeal of the employers from the decision dated 30th November 1993 of an Industrial Tribunal be allowed.

The employee worked for the employers from 16th April to 22nd May 1992, when he resigned, as a last operative. He was aged 16 and of mixed race and he had not previously been in employment.

He brought his claim against his employers under sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976. Section 1(1)(a) reads:

"a person discriminates against another in any circumstances relevant for the purpose 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 ...........".

Section 4(2)(c) reads:

"It is unlawful for a person in relation to employment on establishment in Great Britain, to discriminate against that employee ........... by dismissing him or subjecting him to any other detriment".

Mr Robin Allen Q.C. appearing for the employee made plain at the beginning of the hearing before this Court that in ........ this appeal he has been supported by the Commission for Racial Equality and all the other similar Commissions. They attach great importance to it because of its effect on the purpose of the act which is the eradication of racial discrimination.

Much has turned in this case on the ............ interpretation of section 32 of the Race Relations Act, 1976, so I go straight to that section, which reads:

(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.

(2) ...............

(3) In proceedings brought under this Act against any person in respect of an 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.

The employee gave evidence of ill-treatment, both physical and verbal, by two fellow last operatives called Clements and Cotter. The physical incidents consisted of: burning his arm with a hot screwdriver; whipping him on the legs with a piece of welt; throwing metal bolts at him; and trying to put his arm in a lasting machine. The verbal incidents consisted of calling him "chimp", "monkey" and "baboon". The employee reported the burning incident to his supervisor, Mr Ablett, who moved him to another part of the factory but there was a further incident in which somebody stuck a notice on his back bearing the words "Chipmonks are go". All this led the employee to decide to work elsewhere and he gave notice to his employers.

The Industrial Tribunal was satisfied "that Mr Jones was treated less favourably than other employees in the employers' employment. "We must be satisfied", they said, "that this less favourable treatment was given to him on racial grounds. Mr Ablett said in evidence that he had heard from the shop floor that Mr Jones's father was black. This leads us to draw the inference that Mr Jones's treatment by Mr Clements and Mr Cotter, in particular, was given on racial grounds ... Mr Jones says that he was never referred to in any other way. These terms are, in fact, terms of racial abuse".

The Tribunal continued "Mr Buckhaven contends that whatever may have been the liability of Mr Clements and Mr Cotter, their employers are not liable, since the acts they committed are not done within the scope of their employment and therefore they do not come within the scope of section 32(1) of the Act ... We do not think that we can take the same view. It seems to us that Mr Clements was authorised to use the screwdriver and was simply using it in an unauthorised manner. The same goes for the other acts complained of, including the racial taunts. It seems to us that if we were to accept the breadth of Mr Buckhaven's submission we would be reduced to accepting that no act carried out by an employee can become the liability of the employer unless it was expressly authorised by the employer. It seems to us that the respondents are quite adequately protected by section 32(3) of the Act. Although Mr Ablett said that he gave some sort of verbal warning to Mr Clements, this is not recorded anywhere. In the circumstances, Mr Ablett's action in our view was wholly inadequate....". They continued: "We do not accept that the respondents were unaware that what Mr Jones complained of (that is the burning) might be racially motivated. Mr Ablett accepted that he knew from shop floor sources that Mr Jones's father was black. ... We are not satisfied that the employers took such steps as were reasonably practicable to prevent Mr Clements from carrying out the act of burning or acts of the description. As to the other acts now complained of, had the employers been more fully aware on racial matters, they would have perceived the nature of the names that Mr Jones was being called".

The Tribunal went on to say that they accepted that it was because he was so upset that Mr Jones left the employment and that it was difficult to envisage treatment calculated to cause greater injury to his feelings. They awarded him £5,000.

The employers appealed to the Employment Appeal Tribunal contending that the reference in section 32(1) of the Race Relations Act 1976 to "in the course of his employment" must be subject to the same principles as apply to the establishment of vicarious liability of an employer at common law and that at common law a master is liable for acts which he has not authorised provided they are so connected with acts which he has authorised that it may rightly be regarded as a mode, albeit an improper mode, of doing them.

The employers submitted to the E.A.T. that no employee of the employers in doing any of the acts complained of could possibly be described as acting in the course of his employment and that none of the acts complained of could possibly be described as modes of doing the job they were employed to do.

The majority of the E.A.T. accepted these contentions and allowed the employers' appeal but ordered that the matter be remitted to a differently constituted Industrial Tribunal to investigate whether the employers' failure to take action in respect of the treatment of the employee by his fellow employees was on grounds of race, inferentially or otherwise.

The employers argue that it is only necessary to consider Mr Clements's action in burning the employee's arm with the screwdriver for it to be apparent that it is absurd to suggest that the actions of his fellow employees were merely modes of doing their work. Mr Allen for the employee responds, however, that it is a mistake to start consideration of vicarious liability at the worst end. Starting at the other end there is, he submits, nothing absurd in contemplating the adoption of racial abuse as a mode of carrying out their duties within the scope of their employment.

Mr Allen's basic point, however, is that when considering the question of vicarious liability under section 32(1) of the Act it is not subject to the same principles as apply to the establishment of vicarious liability of an employer for the tortious acts of his employees at common law.

In the first place, Mr Allen points out that the common law doctrine is explained in these words in the 20th Ed. of Salmond and Heuston on torts p.457:

"a master, as opposed to the employer of an independent contractor is liable for acts which he has not authorised, provided they are so connected with acts that he has authorised that they can rightly be regarded as modes, although improper modes of doing them".

So, argues Mr Allen, for the common law doctrine to apply two conditions must exist: first, the relationship of master and servant must exist between the defendant and the person committing the wrong complained, and, second, in committing the wrong the servant must have been acting in the course of his employment, whereas the Act goes wider then the master and servant relationship - see the definition of employment in Section 78 of the Act where it includes persons "under a contract personally to execute any work or labour".

Mr Allen also focused on the words in section 32(1) "whether or not it was done with the employer's knowledge or approval". "Approval" he argued is very little different in the context from "authority". This, he submitted, is a clear departure from the common law doctrine.

Mr Buckhaven on the other hand argued that these words add nothing and their inclusion in the Act is totally pointless. This is a view I cannot accept. It makes no sense to me that an act should be done with the knowledge and approval of the employer but that the employer should not be vicariously liable because the act was not within the scope of his employment according to common law principles. Mr Buckhaven, however, took us through Young v. Bristol Aeroplane Co. [1944] B718 and on the strength of it argued that we are bound by authority to accept his arguments.

The authority on which Mr. Buckhaven relies is Irving and Irving v. Post Office [1987] 1 RLR 289. The facts of that case were that a Mr Edwards, a postman, authorised to write on letters for the purpose of ensuring that they were properly dealt with saw an envelope addressed to his neighbours, the Irvings (a black couple of Jamaican origin) and wrote on the back of the envelope "Go back to Jamaica, Sambo". It was held by the Judge at first instance and by the Court of Appeal, dismissing the claim against his employers, the Post Office, that when he wrote the abusive words Mr Edwards was not acting in the course of his employment.

Inferentially the Court of Appeal in Irving can be taken to have considered sub-section (3) of section 32, because there was reference in the judgments to there being no necessity to deal with the defences raised by the Post Office under the Race Relations Act.

In the judgments, however, the accuracy of which we have checked from the transcript, there is no reliance on sub-section (1), or anything to indicate that the Court was ever referred to sub-section (1) in the course of argument. For those reasons I conclude that Irving v. Irving does not decide that "course of employment in section 32(1) incorporates the common law concept of vicarious liability and we are not accordingly bound so to hold.

Free of authority, I prefer the arguments of Mr Allen and hold that the Employment Appeal Tribunal erred in law.

I would, therefore, allow the employee's appeal. In those circumstances, there is no point in our considering the employers' appeal against the Employment Appeal Tribunal's order to remit the case to another Industrial Tribunal.

LORD JUSTICE WAITE:

I entirely agree with the reasoning and conclusion of Lord Justice McCowan, and am only adding a judgment of my own because of the importance of this case to the cause of eliminating racial and sexual harassment at work, and in acknowledgment of the full and able arguments that have been addressed to us.

In April 1992 a 16 year old boy started work at the employers' shoe factory, as a last operative. He was of mixed ethnic parentage and was joining a workforce which had not previously employed anyone of ethnic minority origin. From the outset he was subjected by fellow-employees to harassment of the gravest kind. He was called by such racially offensive names as "chimp" and "monkey". A notice had been stuck on his back reading "Chipmonks are go". Two employees whipped him on the legs with a piece of welt and threw metal bolts at his head. One of them burnt his arm with a hot screwdriver, and later the same two seized his arm again and tried to put it in a lasting machine, where the burn was caught and started to bleed again. Unable to endure this treatment the boy left the job after four weeks. He made a complaint against the employers of racial discrimination, contending that his fellow-employees had subjected him to a discriminatory detriment on racial grounds under S 4 (2) (c) of the Race Relations Act 1976 ("racial harassment"), for which the employers were responsible by virtue of S 32 (1) of the Act as representing acts done by the employees in the course of their employment. The employers sought to resist the claim on the ground that the relevant acts had been outside the scope of the employees' employment; or on the alternative ground that all reasonably practicable steps to avoid them for the purposes of S 32 (3) ("the reasonable steps defence") had been taken.

On appeal to the Employment Appeal Tribunal the employers did not challenge the Industrial Tribunal's primary findings of fact as to the treatment given to the complainant or the finding that such treatment amounted to racial harassment. Nor was any challenge directed to the Industrial Tribunal's finding that the reasonable steps defence had not been made out. The sole ground of appeal was that the Industrial Tribunal had been wrong to regard the racial harassment as having been "done by a person in the course of his employment" for the purposes of S 32 (1). The Employment Appeal Tribunal (Buckley J, Mrs Boyle and Mr Blyton) were divided on that issue. The majority (the judicial chairman and Mrs Boyle) regarded this ground of appeal as being made out. They stated their reasons thus:

The minority view was summed up by Mr Blyton in these words:

In this appeal the complainant, with the backing of the Commission for Racial Equality, submits that Mr Blyton was right and the majority was wrong. He does not base that claim (as he might have done) on the narrow objection that even if the majority was right in regarding the acts of physical assault as being outside the conventional tortious test for vicarious liability, they failed to consider whether the verbal abuse stood in a different category. He bases it (as in my opinion he is fully entitled to do) upon a challenge to the entire notion that the words "in the course of his employment" in S 32 (1) are to be given a restricted meaning which would limit them to instances where the impugned conduct on the part of the employee would attract tortious liability to the employer under the common law doctrine of vicarious liability.

THE ISSUE ON THIS APPEAL

The effect of that challenge is to require an answer to this question. When an Industrial Tribunal is considering whether, for the purposes of S 32 (1) any conduct complained of does or does not amount to a "thing done by a person in the course of his employment", is the tribunal bound to answer that by reference to:

(a) the words "course of employment" in the sense in which they are employed in everyday speech; or

(b) the principles laid down by case law for the establishment of vicarious liability by an employer for the torts committed by an employee during the course of his employment?

That is an issue of widespread importance. The fact that the mechanism of the relevant sections of the Race Relations Act is matched exactly by corresponding provisions in the Sex Discrimination Act 1975 means that the issue needs to be resolved in relation to all acts of harassment on the grounds of race or sex which occur in an employment context.

THE GOVERNING PRINCIPLES OF STATUTORY CONSTRUCTION

Two principles are in my view involved. The first is that a statute is to be construed according to its legislative purpose, with due regard to the result which it is the stated or presumed intention of Parliament to achieve and the means provided for achieving it ("the purposive construction"); and the second is that words in a statute are to be given their normal meaning according to general use in the English language unless the context indicates that such words have to be given a special or technical meaning as a term of art ("the linguistic construction"). It will be convenient to deal with those separately.

THE PURPOSIVE CONSTRUCTION

The legislation now represented by the Race and Sex Discrimination Acts currently in force broke new ground in seeking to work upon the minds of men and women and thus affect their attitude to the social consequences of difference between the sexes or distinction of skin colour. Its general thrust was educative, persuasive, and (where necessary) coercive. The relief accorded to the victims (or potential victims) of discrimination went beyond the ordinary remedies of damages and an injunction - introducing, through declaratory powers in the court or tribunal and recommendatory powers in the relevant Commission, provisions with a pro-active function, designed as much to eliminate the occasions for discrimination as to compensate its victims or punish its perpetrators. These were linked to a Code of Practice of which courts and tribunals were to take cognizance. Consistently with the broad front on which it operates, the legislation has traditionally been given a wide interpretation - see for example Savjani v IRC [1981] 1 QB 458 at page 466 where Templeman LJ said of the Race Relations Act:

"..... the Act was brought in to remedy a very great evil. It is expressed in very wide terms, and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act."

Since the getting and losing of work, and the daily functioning of the workplace, are prime areas for potential discrimination on grounds of race or sex, it is not surprising that both Acts contain specific provisions to govern the field of employment. Those provisions are themselves wide-ranging - as is evidenced, for example, by the inclusion of contract workers without employee status within the scheme of the legislation. There is no indication in the Act that by dealing specifically with the employment field Parliament intended in any way to limit the general thrust of the legislation.

A purposive construction accordingly requires S 32 of the Race Relations Act (and the corresponding Section 41 of the Sex Discrimination Act) to be given a broad interpretation. It would be inconsistent with that requirement to allow the notion of the "course of employment" to be construed in any sense more limited than the natural meaning of those everyday words would allow.

THE LINGUISTIC CONSTRUCTION

Mr Buckhaven's argument is attractively simple. Vicarious liability is a doctrine of tortious liability which has been applied by the common law to the employment context. Part Three of the Race Relations Act applies expressly to discrimination in the employment field. The two fields are the same. Words and phrases that have acquired a familiar and particular meaning through case law applied to employers' liability in the former context must therefore have been intended by Parliament to have the same meaning when applied to employers' liability in the latter context.

Mr Allen QC, while acknowledging that there is a broad conceptual similarity between the employers' responsibility that applies in both contexts, submits that substantial differences emerge when vicarious liability in tort is analysed and contrasted with the statutory scheme of which S 32 forms part. The employer's authority, for example is a crucial element in vicarious liability in tort - as evidenced by the statement in Salmond (20th Edition) in para 21.5 that:

"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised way of doing some act authorised by the master."

That is to be contrasted with the position under S 32 (1) of the Race Relations Act, where all actions by a person in the course of employment are attributed to the employer "Whether or not...done with the employer's knowledge or approval". Mr Allen points to other distinctions, such as the greater range of remedies available under the statute (including damages for injury to feelings) than those available in tort against an employer at common law, and the total absence from the concept of vicarious liability in tort of any provision corresponding to the reasonable steps defence under S 32 (3).

I am persuaded that Mr Allen's submission is to be preferred, and that there is here no sufficient similarity between the two contexts to justify, on a linguistic construction, the reading of the phrase "course of employment" as subject to the gloss imposed on it in the common law context of vicarious liability.

THE POSITION APART FROM AUTHORITY

Both approaches to statutory construction therefore lead to the same interpretation. But even more compelling, in my view, is the anomaly which would result (as the minority member Mr Blyton pointed out) from adopting any other interpretation. Mr Buckhaven accepts (indeed in his written argument he relies upon) the fact that an inevitable result of construing "course of employment" in the sense for which he contends will be that the more heinous the act of discrimination, the less likely it will be that the employer would be liable. That, he argues, is all to the good. Parliament must have intended the liability of employers to be kept within reasonable bounds.

I would reject that submission entirely. It cuts across the whole legislative scheme and underlying policy of S 32 (and its counterpart in sex discrimination), which is to deter racial and sexual harassment in the workplace through a widening of the net of responsibility beyond the guilty employees themselves, by making all employers additionally liable for such harassment, and then supplying them with the reasonable steps defence under S 32 (3) which will exonerate the conscientious employer who has used his best endeavours to prevent such harassment, and will encourage all employers who have not yet undertaken such endeavours to take the steps necessary to make the same defence available in their own workplace. The recent (as yet unreported) decision of the Employment Appeal Tribunal in Burton and Rhule v De Vere Hotels provides a useful illustration of the matters to which employers need to be alert if they are to be able to take advantage of the reasonable steps defence in a harassment context.

THE CASE LAW

Mr Buckhaven submits that the whole question is in any event concluded by authority at the level of this court which is binding on us. The case is Irving v The Post Office [1987] IRLR 289. That was a case in which a Post Office employee had neighbours who were black. He fell into dispute with them. While sorting mail at his place of work, he came across a letter addressed to them, and made use of that opportunity to write a racially offensive remark on the envelope before it was placed for delivery. The neighbours, having received the letter in the ordinary course of post, complained to the Post Office who conducted an investigation, identified the culprit and disciplined him. The neighbours brought a complaint of racial discrimination against the Post Office, which was heard in the county court by an Assistant Recorder sitting with two assessors. The complaint was dismissed, and the Court of Appeal (Fox LJ and Sheldon J) dismissed the neighbours' appeal from that decision.

No record of the arguments heard on that appeal has survived. It is undoubtedly the case, however, that both judgments proceeded on the basis that any issue as to the liability of the Post Office for the action of their employee depended upon establishing vicarious liability in the sense in which that concept is used in the law of tort. It is also the case, however, that in neither judgment is a single reference made to S 32 of the Race Relations Act. Indeed the Act itself is not mentioned at all in Sheldon J's judgment, and only in general terms by Fox LJ at the beginning and end of his judgment. There is a reference to S 32 (1) at the head of the Law Report, but it is evident from glancing at other reports in the series that such references are introduced by the editors for the assistance of their readers and for indexing purposes, and form no part of any judicial statement.

The only realistic inference that can be drawn, in my judgment, is that the Court of Appeal in that case dealt with the issue on the basis of vicarious liability as applied in the law of tort because both counsel invited them to do so. The issue that is now before the court, therefore, never arose for consideration. Irving is accordingly not an authority for the purpose for which reliance is sought to be placed upon it. It does not preclude us from holding that the majority of the Employment Appeal Tribunal was in error, and that there is no authority which requires the reference to "course of employment" in S 32 (1) to be construed restrictively by reference to the case law governing an employer's vicarious liability in tort.

CONCLUSION

It would be particularly wrong to allow racial harassment on the scale that was suffered by the complainant in this case at the hands of his workmates - treatment that was wounding both emotionally and physically - to slip through the net of employer responsibility by applying to it a common law principle evolved in another area of the law to deal with vicarious responsibility for wrongdoing of a wholly different kind. To do so would seriously undermine the statutory scheme of the Discrimination Acts and flout the purposes which they were passed to achieve.

The tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words "in the course of employment" in the sense in which every layman would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstance which is liable to occur in particular instances - within or without the workplace, in or out of uniform, in or out of rest-breaks - all laymen would necessarily agree as to the result. That is what makes their application so well suited to decision by an industrial jury. The application of the phrase will be a question of fact for each Industrial Tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort.

I, too, would allow the appeal and restore the order of the Industrial Tribunal.

LORD JUSTICE POTTER: I agree with both preceding Judgments.

Order: respondent (Jones) appeal allowed; appellant (Tower Boot) appeal dismissed; decision of the industrial tribunal be restored; respondent's costs to be paid by the appellant.