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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sidhu v Aerospace Composite Technology Ltd [2000] EWCA Civ 183 (26 May 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/183.html
Cite as: [2001] ICR 167, [2000] EWCA Civ 183, [2000] IRLR 602
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Case No: EATRF/1999/0571/A1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 26 May 2000
LORD JUSTICE PETER GIBSON
LORD JUSTICE BROOKE
and
LORD JUSTICE ROBERT WALKER
- - - - - - - - - - - - - - - - - - - - -
SIDHU |
Respondent | |
- and - |
||
AEROSPACE COMPOSITE TECHNOLOGY LTD. |
Appellant |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
__________________________________
Mr. Manjit Gill Q.C. and Mr. Manjit Panesar (instructed by the Commission for Racial Equality of London for the Respondent)
Mr. Simon Cheves (instructed by Messrs Machins of Luton for the Appellant)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE PETER GIBSON:
1. Aerospace Composite Technology Ltd. ("ACT") appeals from the order of the Employment Appeal Tribunal ("the EAT") on 18 March 1999 with the leave of the EAT. By that order the EAT allowed the appeal of Harbhanjan Singh Sidhu from that part of the decision promulgated on 12 March 1998 of an Employment Tribunal sitting in Bedford which by a majority dismissed Mr. Sidhu's allegation against ACT of discrimination contrary to the Race Relations Act 1976 ("the Act"). The EAT substituted a finding that Mr. Sidhu was subject to race discrimination and remitted the matter to a differently constituted Tribunal. The decision of the EAT is now reported ([1999] IRLR 683).
2. Mr. Sidhu is a Sikh. He commenced employment with ACT in October 1979. Prior to the events which led to his dismissal on 6 September 1996, he had been a good worker with no serious disciplinary matters recorded against him. ACT about the time of Mr. Sidhu's dismissal was an independent company employing 330 employees at its works at Luton Airport.
3. For 6 consecutive years ACT organised a family day out to which employees, their families and friends were invited and Mr. Sidhu and his wife and children had attended them all without incident prior to August 1996. The family day out on that day was at Thorpe Park. A new employee, Kevin Smith, also attended with his girlfriend, her father, two friends and some children.
4. An argument broke out among the children which was centred on the fact that the Sidhu's son, being a Sikh, had long hair. Mrs. Sidhu intervened, was subjected to abuse and when she told Mr. Sidhu, he asked Mr. Smith if it was his children who had been teasing Mr. Sidhu's son. A fracas developed. Mr. and Mrs. Sidhu were subjected to violence and racial insults. Mr. Sidhu was set upon by Mr. Smith and two other white men. As the tribunal found, the Sidhus were the subject of a racial attack.
5. After being physically attacked, Mr. Sidhu picked up a plastic chair. He claimed, with the support of some witnesses, that he did so in self-defence. Some witnesses said that he wielded the chair in an aggressive manner. But at no time did Mr. Sidhu make physical contact with anyone whilst holding the chair.
6. ACT's management heard of the incident the next day. Following complaints from the unions about ACT's previously inconsistent methods of dealing with complaints of violence, ACT's disciplinary code provided that "violence against a fellow employee" or "violent or abusive language" amounted to gross misconduct which could lead to summary dismissal or a lesser penalty as appropriate. Mr. Sidhu and Mr. Smith were suspended pending an investigation.
7. On 19 and 21 August disciplinary hearings took place before a disciplinary committee chaired by ACT's Human Resources Manager, Mr. Kelly. The committee found that each of Mr. Sidhu and Mr. Smith had been guilty of violent behaviour towards a fellow employee and of using foul and abusive language and that they should be summarily dismissed.
8. Mr. Sidhu and Mr. Smith appealed to an appeal committee consisting of ACT's Financial Controller, Jeremy Chiappe, as chairman and two other members. The appeal committee heard evidence afresh. It rejected Mr. Smith's appeal. It was satisfied that Mr. Sidhu had used the chair in a threatening manner, but did not think that this amounted to violent behaviour in the absence of the chair making physical contact with anybody. Mr. Chiappe took the view that the determining factors were Mr. Sidhu's long service and the fact that he had clearly been provoked. The appeal committee decided to allow the appeal. But when Mr. Chiappe informed Mr. Kelly, he arranged for the committee to see ACT's Chief Executive, Mr. Barrington, who expressed surprise at their decision in a way in which the committee felt his disapproval. The question was raised whether the appeal committee had seen all the witnesses, and it was decided that further witnesses should be called. The appeal committee also saw ACT's solicitor who advised against too legalistic an approach, but said that the committee members should ascribe to the word "violence" the meaning they felt appropriate. The appeal committee received evidence from three witnesses (including one who had not been seen before), each of whom gave some evidence in support of the view that Mr. Sidhu had held the chair in an aggressive manner. That evidence was received without Mr. Sidhu or his representative being informed. Mr. Chiappe adhered to his view that Mr. Sidhu should not be dismissed. The other two members changed their view on the basis that holding the chair in an aggressive manner amounted to violence. Accordingly by a majority the decision to dismiss was upheld.
9. On 28 November 1996 Mr. Sidhu applied to the Tribunal, initially complaining only of unfair dismissal but subsequently adding complaints of racial discrimination and breach of health and safety regulations. The racial discrimination alleged was that of Mr. Smith and also that of ACT in investigating the incident on 4 August 1996 and in dismissing Mr. Sidhu. The Tribunal in its reserved decision dismissed the alleged breach of health and safety regulations. In respect of the racial discrimination complaint, although the incident on 4 August 1996 occurred more than 3 months before Mr. Sidhu's application, the Tribunal took the view that that and the subsequent events leading up to dismissal were part of a series of continuing acts and that in any event it would be just and equitable (under s. 68 (6) of the Act) for all those incidents to be considered by the Tribunal.
10. The Tribunal then considered whether ACT was vicariously liable for the acts of Mr. Smith under s. 32 (1) of the Act. It referred to the decision of the EAT in Jones v Tower Boot Co. Ltd. [1997] ICR 254 and the narrow view taken by the EAT of the statutory words "in the course of his employment", and to the correction of that view by this court on appeal ([1997] IRLR 168). It also referred to the decision of this court in Waters v Metropolitan Police Commissioner [1997] IRLR 589, in which on the particular facts of that case the vicarious liability of the employer was not established.
11. The Tribunal then continued:
"14. If the events on the 4th August were outside the scope of Mr. Sidhu's employment, then [ACT] could not be vicariously liable for them, however unpleasant those acts might have been. It follows, equally, that if those events were within the course of Mr. Sidhu's employment, [ACT is] potentially vicariously liable, if the Tribunal is satisfied that that act, even though occurring more than three months from the date of presentation from the application, was either part of a series of continuing acts which culminated in an act which was in time, or that it was "just and equitable" so to extend the jurisdiction.
....
16. As to jurisdiction, the majority view is that the events on the 4th August were outside the scope of Mr. Sidhu's employment. The events took place at a public Theme Park. Despite the fact that it had been the employers who had organised the event and invited the participants everyone was there in their own time, and it seems likely that the majority of the participants were friends and family rather than employees. Accordingly the majority find that these events were not in the course of Mr. Sidhu's employment: but that finding does not inhibit [ACT] from proceeding to discipline either Mr. Smith or Mr. Sidhu in respect of those events, because of their obvious connection with the employment."
12. The Tribunal then turned to whether ACT itself had discriminated against Mr. Sidhu. It considered three authorities on discrimination. First, it referred to King v Great Britain-China Centre [1991] IRLR 513 as authority for the proposition that a Tribunal can draw inferences where an employer has committed a discriminatory act, when there is a clear case of detriment and of a difference in race and no satisfactory explanation has been offered by the employer. Second, it referred to Strathclyde Regional Council v Zafar [1998] IRLR 36 as spelling out that the Tribunal was not bound to draw such an inference and that unfair conduct was not necessarily discriminatory conduct. Third, it referred to Fire Brigades Union v Fraser [1997] IRLR 671, where it was pointed out that even in circumstances redolent of discrimination it was necessary to establish the nexus between the detrimental conduct and the causative element of sex or race discrimination.
13. The Tribunal said that it was clear that the case was redolent of race discrimination. But the majority found it impossible to identify evidence that ACT itself was acting in a discriminatory manner during the investigatory, disciplinary and appeal processes. The majority said this:
" .... The majority find that [ACT] set out to judge both Mr. Smith and Mr. Sidhu separately, against the test of gross misconduct. The fact that both were dismissed does not suggest discrimination, but simply that [ACT] found that in each case there had been gross misconduct. The severity of [ACT's] decision was (the majority find) based not on race, but on Mr. Barrington's policy that [ACT] would deal firmly and consistently with any violence or abusive language .... [T]his policy had been established some years previously as a result of complaints by the union that members of management were inconsistent in the way that they dealt with such matters. It was clear from the evidence that Mr. Barrington was determined that the company should pursue a policy which was fair and consistent.
19. The majority recognise that [ACT] did not have a pro-active system for investigating complaints of racial abuse. [ACT] did not appear to be empathetic to the issue of racial provocation. [ACT's] witnesses insisted in their evidence that what they were investigating was an "attack" rather than a "racial attack." Nonetheless, as Mr. Cheves [for ACT] pointed out, the effect of [ACT's] actions was that [it] did in fact investigate Mr. Sidhu's complaints against Mr. Smith. And [it] acted upon [its] findings by dismissing Mr. Smith."
14. The majority accordingly dismissed the allegation of racial discrimination. The minority member of the Tribunal expressed his dissenting view in a detailed statement extending over several pages.
15. The Tribunal unanimously held that the dismissal was unfair both because of the appeal which it found to have been flawed and ACT's unreasonable failure to take adequate account of both Mr. Sidhu's long service and the extent of the provocation which he had suffered. The minority member found the dismissal to have been unfair because it had been conducted in a racially discriminatory manner. But the majority did not find sufficient evidence of racial discrimination. They said (in para. 28):
"Whilst it is true that both the Disciplinary Panel and the Appeal Panel concentrated on the issues of abuse and violence rather than the racial nature of that conduct, the effect of their investigation .... was to identify the serious nature of Mr. Smith's conduct (and in particular the racial abuse) and to impose upon him the ultimate sanction of dismissal. The majority find that the reason for the Disciplinary Panel and the Appeal Panel consistently failing to take any special account of the racial aspects of the matter in Mr. Sidhu's favour, was not any conscious or unconscious attempt to discriminate, but due to the very firm view of Mr. Barrington that the company should maintain a consistent policy in dealing with acts of violence ...."
16. Again in para. 31 the Tribunal reverted to the same point about consistency:
"It was apparent to the Tribunal from the evidence of Mr. Barrington that one of the factors which [ACT] took into account, against the background of union complaints in the past, was the need to maintain the integrity of [its] disciplinary procedures. It is clear that [ACT was] at pains to be even handed".
17. As I understand the findings of the majority of the Tribunal and as appears to have been common ground before the EAT and was not disputed before this court, the policy of Mr. Barrington which was applied by ACT was to look only at whether the employee used violence or abusive language and to disregard whether there was provocation or other mitigating circumstances. The majority of the Tribunal therefore dismissed the racial discrimination complaint but ordered a remedies hearing to consider the appropriate remedy for the unfair dismissal.
18. On Mr. Sidhu's appeal to the EAT, the EAT found that the reasoning of the majority of the Tribunal on vicarious liability showed (1) that the majority did not apply the correct statutory test or approach in treating in paras. 14 and 16 of the decision the phrases "scope of his employment" and "course of his employment" as meaning the same thing or covering the same concepts or (2) that the majority asked themselves an inaccurate or inappropriate question or used inadequate reasoning. The EAT set aside the Tribunal's decision and remitted the points under s. 32 of the Act to a different Tribunal. On the racial discrimination complaint the EAT found the reasoning of the majority to be flawed and to demonstrate an error of law in two respects. One was that the majority had regard to the motive or subjective intention of ACT. The other was that the majority failed to consider whether the conduct relied on to establish racial discrimination was race-specific. The EAT held that a Tribunal properly directing itself would be bound to conclude that the decision to exclude from the decision-making process the fact that the attack was racial amounted to racial discrimination within s. 1 (1)(a) of the Act. The EAT directed that another Tribunal should determine the compensation for Mr. Sidhu.
19. The issues before this court again relate only to Mr. Sidhu's complaint of racial discrimination on the part of ACT. They are (1) whether the majority of the Tribunal misapplied the test for vicarious liability under s. 32, and (2) whether the majority erred in concluding that there was no direct racial discrimination under s. 1(1)(a) when ACT applied its policy in relation to incidents of violence concerning employees.
(1) s. 32
20. By s. 32(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."
21. In the law relating to vicarious liability in tort much depends on whether the action of the employee was merely an unauthorised or prohibited mode of doing an authorised act. But to apply that approach to the Act could have the unfortunate effect that the worse the discriminatory act of an employee against his fellow employee, the less likely the employer would be liable under s. 32 as it would be more likely to be viewed as an unauthorised act not part of the employment. Because of this in Jones v Tower Boot Co. Ltd. this court held that the rules in tort do not apply; the phrase "in the course of employment" is to be construed in the sense in which a layman would understand those words, the application of those words to be a question of fact to be determined by the tribunal in the circumstances of the particular case.
22. The majority expressed their reasoning on this point in para. 16 of the Tribunal's decision, which I have cited. They took account of the fact that ACT had organised the day out and invited the participants. But they considered that the following facts were more significant: (1) the day out was not in the place of employment but at a public theme park; (2) everyone was there in his own time, not during working hours; (3) the majority of the participants were friends and family rather than employees. These factors led the majority to conclude: "Accordingly the majority find that these events were not in the course of Mr. Sidhu's employment".
23. The EAT considered that the Tribunal had erred in law in two respects. The first was that the Tribunal twice used the non-statutory expression "scope of Mr. Sidhu's employment", which, as the EAT pointed out, as a matter of ordinary language and usage does not mean the same thing as "course of his employment". I have to say that the view of the EAT betrays an excessively linguistic approach, unduly analytical of the wording of the Tribunal, which this court has repeatedly decried. Fine tooth combing is not appropriate. As Donaldson L.J. said in UCATT v Brain [1981] ICR 542 at p. 551, "I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given." In Jones v Mid Glamorgan County Council [1997] IRLR 685 at p. 690 para. 30 Waite L.J. said:
"The guiding principle, when it comes to construing the reasons of an industrial tribunal at an appellate level, must be that if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law".
24. It is to my mind plain that the majority had well in mind what was the statutory test. The Tribunal quoted the relevant words in s. 32 when referring to Jones v Tower Boot Co. Ltd.. The majority expressed their conclusion in the statutory language. I think it clear that they regarded "the scope" and "the course" as interchangeable. They were wrong in that as a matter of ordinary usage, but in the context in which they used "the scope" to mean "the course" they do not disclose any error of law by their inaccurate use of language.
25. The second error identified by the EAT is that the Tribunal in summarising Waters v Metropolitan Police Commissioner omitted an important factor. That was a case of a complaint by a police woman about an assault by a male police constable. The Tribunal said: "It was found that that assault could not be a protected act, because it took place when both parties were off duty, was not committed at the place of employment, and was a deliberate unauthorised and unlawful act." The EAT criticises the Tribunal for not also reciting what was contained in the judgment of Waite L.J. [1997] IRLR at p. 597 para. 82 (although not to be found in the leading judgment of Evans L.J.) that the circumstances in that case placed the policewoman and constable "in no different position from that which would have applied if they had been social acquaintances only, with no working connection at all". Again I have to say that the EAT is analysing the decision of the Tribunal in detail which is far too fine. I cannot see any basis whatever for saying that the omission to refer to Waite L.J.'s comment demonstrated that the Tribunal misunderstood Waters or misapplied s. 32 or asked itself the wrong question or gave inadequate reasoning.
26. As Bingham L.J. said in Meek v City of Birmingham District Council [1987] IRLR 250 at p. 251 para 8:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises ...."
In my judgment the decision of the majority comfortably passes those tests.
27. Mr. Gill Q.C. for Mr. Sidhu submitted that the conclusion of the EAT can be supported on the basis of factors mentioned by the minority member of the Tribunal which, he said, the majority do not appear to have considered, and he referred in particular to what he called the supervision of proceedings during the event. But we do not know what the majority thought of those findings by the minority member. In relation to supervision, it is far from clear, even on the minority member's finding, that there was supervision by ACT in any meaningful sense. What Mr. Gill seeks to rely on is what the minority member said had been stated by one member of ACT's Appeal Panel, viz. that anyone who had a problem on that day should have reported the matter to the senior manager present. But there is no finding that the person who happened to be the senior manager present was given responsibility to act as such on the day out. Mr. Gill has not even put in a Respondent's Notice. I am unpersuaded that there is a proper basis for interfering with the Tribunal's finding on this ground.
28. Mr. Gill further argued that on the facts the Tribunal should have found that the day out was "in the course of employment". He pointed to the fact that disciplinary proceedings had been initiated against Mr. Smith and Mr. Sidhu. He referred to Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81, in which the EAT upheld the decision of a Tribunal that a social gathering of work colleagues, at which a woman police constable had been subjected to inappropriate sexual behaviour by a policeman, was an extension of their employment. But the EAT there stressed that each case would depend on its own facts, calling for the good exercise of judgment by an industrial jury. I recognise that another Tribunal could properly have reached the conclusion that the incident on the day out was in the course of employment. But in my judgment it is quite impossible to say that no Tribunal could have reached the conclusion which the majority did on this point.
(2) s. 1(1)(a)
29. By s. 1 (1)(a):
"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".
30. With this provision must be read s. 3 (4):
" A comparison of the case of a person of a particular racial group with that of a person not of that group under s. 1 (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
It is clear therefore that what the statute requires in order to find direct racial discrimination under s. 1 (1)(a) is that the complainant must show that he has been treated less favourably by the discriminator than the discriminator treats or would treat other persons in the same circumstances.
31. But in certain cases the comparison need not be demonstrated by evidence as to how a comparator was or would be treated, because the very action complained of is in itself less favourable treatment on sexual or racial grounds. Thus in a sex discrimination case if it can be shown that the less favourable treatment meted out to a woman was only because she was a woman, it follows that the woman was treated less favourably than a man (Porcelli v Strathclyde Regional Council [1986] ICR 564). In the jargon of employment lawyers that conduct is gender-specific. So also if a person is harassed or abused because of his race, that conduct is race-specific and it is not necessary to show that a person of another race would be treated more favourably (Burton v De Vere Hotels [1996] IRLR 596). In the present case the finding of a racial attack by Mr. Smith is a finding of race-specific conduct.
32. The primary question in the present case is whether the application of the policy of ACT in relation to violence concerning employees was race-specific so that it was unnecessary for Mr. Sidhu to show that a white person or someone from a different race was or would have been treated differently. The Tribunal took the view that the policy of ACT was to look only at the fact of the violence or abusive language, and not at what had led the employee to behave in that way.
33. The EAT (at p. 688 para. 24) pointed out that the Tribunal made no reference to the question whether the approach by ACT was race-specific. The EAT found that it was race-specific because ACT had ignored the racial element in the attack on Mr. Sidhu when considering Mr. Sidhu's violence.
34. I find that conclusion surprising. The policy was plainly not race-specific. If the provocation to Mr. Sidhu had been that Mr. Sidhu had been physically assaulted and verbally abused but not for racial reasons (for example if the attack had been by another Sikh) and Mr. Sidhu had been violent in retaliation, the policy would have required that Mr. Sidhu be treated in the same way. If he had been attacked because he was wearing the shirt of a football club hated by the attacker who supported a rival club, and he had reacted in the same way, the policy would have required the same approach. Indeed the EAT appeared to recognise this when it said (at p. 689 para 48): "We would accept that there would be force in an argument that a white person (or a person of a different racial group) would not be treated differently." It would of course have been different if the policy of ACT had been only to disregard provocation if based on race.
35. The majority of the Tribunal have, I think, expressed themselves unfortunately in referring globally to the evidence of ACT's witnesses as being that they were investigating an attack rather than a racial attack. In accordance with the policy to consider only whether what each employee did amounted to violence or abusive language and not what had preceded that conduct, ACT looked at Mr. Smith's conduct and rightly found that to be using violence and abusive language and looked at Mr. Sidhu's conduct and found that to amount to violence. But ACT ignored the fact that Mr. Sidhu was subjected to the provocation of an attack at all.
36. Mr. Gill argued that it made no sense for ACT to leave out of account the racial element of the attack on Mr. Sidhu, which, he said was the important characteristic of Mr. Sidhu's reaction. If the issue was the reasonableness of ACT's policy and the fairness of ACT's treatment of Mr. Sidhu I would agree with Mr. Gill without hesitation.
37. As Mr. Cheves for ACT rightly points out, it is important not to confuse the issues which relate to unfair dismissal with those which relate to racial discrimination. The fact that ACT acted unreasonably in not taking account of the mitigating circumstances does not assist in determining whether ACT treated him less favourably on racial grounds. Lord Browne-Wilkinson said in Zafar v Glasgow City Council [19998] IRLR 36 at p. 38 para. 11:
"The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee `less favourably' for the purposes of the Act ...."
38. But the issue is whether less favourable treatment of Mr. Sidhu on racial grounds has been shown by the application by ACT of its policy, and whether ACT's conduct was race-specific so that it was unnecessary to adduce evidence to show that a comparator in the like circumstances was or would be treated less favourably. Mr. Gill did not dispute that the policy would have been applied in the same way if Mr. Sidhu had been provoked to the same violent reaction by action or language which was not racially motivated or if a white employee had been attacked. But he submitted that for the purposes of the Act that was irrelevant, and all that mattered, he said, was that ACT's policy left out of account the racial attack comprising the provocation for Mr. Sidhu's reaction. Sympathetic though I am with Mr. Sidhu as the victim of a racial attack, I am unable to see how the application of ACT's non-race-specific policy in leaving out of account all provocation can result in a finding of less favourable treatment on racial grounds than other persons, without proof of more favourable treatment of other comparators.
39. Two comparators were suggested by the EAT and Mr. Gill. The first was said to be Mr. Smith. If one bears in mind s. 3 (4), it would have to be shown that Mr. Smith was or would have been more favourably treated in circumstances the same as Mr. Sidhu. Mr. Smith was never actually in Mr. Sidhu's circumstances of being subjected to provocation in the form of a physical and verbal attack. If one looks only at his circumstances of using violence and racial abuse, it is hard to see how he was more favourably treated than Mr. Sidhu when Mr. Smith too was dismissed. Mr. Gill relied on the fact that the majority of the Tribunal say that the effect of ACT's investigation was to identify the serious nature of Mr. Smith's conduct. But that hardly establishes more favourable treatment of Mr. Smith.
40. The second comparator was said to be a Mr. McCulloch. Mr. Sidhu had not identified Mr. McCulloch as a comparator in his IT1, though some evidence was given about him in the course of the 5-day hearing before the Tribunal. The Tribunal referred to Mr. McCulloch in relation to the unfair dismissal issue. In para. 26 it said:
"We are satisfied that this [decision to dismiss Mr. Sidhu] is a decision that no reasonable employer should have reached. We are reinforced in that view by the evidence given of Mr. McCulloch less than two years earlier. Mr. McCulloch had been found to have struck a colleague, but nonetheless following an appeal, the dismissal was replaced by a four week suspension after the panel had taken into account his "service with the company and good working record."
41. The minority member of the Tribunal had in his reasons for his dissent said this:
"22 .... (10) I sincerely believe that had Mr. Sidhu been a white person he would never have been dismissed. In a previous incident involving violence at work between two white employees only the aggressor was disciplined for gross misconduct and he was not dismissed from his employment.
....
(17) The case of Mr. McCulloch a white man who assaulted a fellow employee and was re-instated on appeal is significant in this case as it does provide a useful contrast. It is reasonable to infer discrimination from the difference in treatment of these two cases."
42. It is clear from the decision of the majority of the Tribunal that they did not find that there was any evidence of racial discrimination in dismissing Mr. Sidhu (see paras. 18 and 28 of the Tribunal's decision). But no more is said than that as to why the majority did not agree that Mr. McCulloch's case showed that Mr. Sidhu was less favourably treated than Mr. McCulloch on racial grounds.
43. Mr. Gill submitted that this court should order that the case go back to the Tribunal on this point. With some hesitation I have reached the conclusion that that is not justified. The majority have made plain not only that there was insufficient evidence of racial discrimination but that the actions of ACT were dictated by the policy, introduced in the interests of firmness and consistency, to disregard provocation and other mitigating factors. That policy was not directed specifically to racial matters and the Tribunal could properly find that in applying that policy ACT was not acting on racial grounds. The fact that an appeal panel of ACT within the previous two years had taken into account mitigating factors which were also present in Mr. Sidhu's case (long service and a good working record) to replace the dismissal of a white man with a suspension and thereby acted inconsistently with the policy does not prove that it was on racial grounds that some time later Mr. Sidhu was treated less favourably. The majority were not satisfied by the evidence on that. That conclusion was open to them as the arbiters of fact. It was a matter of inference which they were entitled not to draw even though the minority member took a different view.
44. I can deal with the other alleged error found by the EAT more briefly because Mr. Gill did not support that criticism, rightly in my view. The EAT regarded the decision of the majority of the Tribunal as erroneous because, it said, they had regard to the motive or subjective intention of ACT. This was said to be demonstrated in particular by the second sentence from para. 28 of the Tribunal's decision which I have cited and the reference therein to "any conscious or unconscious attempt to discriminate". The EAT also regarded paras. 18 and 19 of the Tribunal's decision, which I have cited, and in particular the reference to the fact that ACT was investigating an attack rather than a racial attack, as demonstrating that the majority were examining the motive of ACT rather than the effect of ACT's conduct.
45. I of course accept that if discrimination is established, the fact that the discriminator did not act with a discriminatory motive or purpose does not negate that discrimination (see R. v Birmingham City Council, ex p. Equal Opportunities Commission [1989] AC 1155). But the question here is whether discrimination has been established and on that question the policy applied by ACT is plainly of relevance. What the majority of the Tribunal were doing in the passages seized on by the EAT was to say that ACT was applying the policy. That does not show that the majority, impermissibly, were having regard to motive or intention in finding that an act of discrimination was not discrimination. Rather it showed that there was no less favourable treatment of Mr. Sidhu on racial grounds than other persons and so there was no discrimination.
Conclusion
46. For these reasons, despite my sympathy with Mr. Sidhu and my condemnation of ACT's policy and its application to Mr. Sidhu, I respectfully disagree with the grounds on which the EAT found fault with the decision of the majority of the Tribunal. I would allow ACT's appeal and restore the majority's decision.
LORD JUSTICE BROOKE:
47. In August 1996 Mr and Mrs Sidhu took their children out to Thorpe Park on a family outing. Mr Sidhu's employers organised the outing. He had worked for them for nearly 17 years. According to their chief executive, he was well known and well thought of within the company. During the course of the day the Sidhus' children got involved in an incident with other children which centred on the fact that their son had the long hair characteristic of a Sikh. When Mrs Sidhu intervened, she was subjected to abuse. When her husband asked a fellow employee, Mr Smith (who had been with the company for only six months), if it was his children who had been teasing Mr Sidhu's son a fracas developed. Mr and Mrs Sidhu were subjected to racial insults. They were also subjected to violence. In particular, Mr Sidhu was set upon by three white men (including Mr Smith). His head was cut and his glasses were broken. He had to be taken to hospital for treatment. It is hardly surprising that he retaliated when he was subjected not only to this attack but also to the racial insults that were aimed at both himself and his wife.
48. A company, like society more generally, has an interest in preventing acts of violence, however they arise. In the criminal law provocation provides no defence to a charge of non-fatal violence. On the other hand, it may provide potent grounds for mitigation of penalty. There are reported cases which illustrate the way the criminal courts deal with a convicted defendant who has been the target of racial abuse and harassment. See Harbinder Johal (1991) 12 Cr App R (S) 695 and Conton (1993) 14 Cr App R (S) 289; and see also Wadha [1996] 2 Cr App R (S) 216, 219-220.
49. It is, of course, a matter of grave concern that the appellants appear, on the Employment Tribunal's findings, to have been operating a disciplinary policy which failed to take issues of provocation into account when determining the penalty to impose on an employee who had been provoked into violence by racial insults. It is sometimes said that people who have not themselves been harassed and taunted because of the colour of their skin often do not have a very clear idea of the sense of indignity that this treatment creates for those who suffer from it. It is hardly surprising that the Employment Tribunal found that Mr Sidhu had been unfairly dismissed. There is no appeal against that ruling, nor could there be.
50. I have no difficulty in concluding that the appellants' policy was misguided and unfair. This, however, is not the issue we have to decide on this appeal. Although the policy would be condemned by anyone who knows anything about race relations, I cannot see how it can fairly be described as "race-specific".
51. As I understand the tribunal's findings, the policy operated just as misguidedly and unfairly whenever any vulnerable person was provoked into violence by taunts or insults which he or she could no longer endure, or by remarks calculated to touch them on a raw nerve. The abuse might be racial. It might be homophobic. It might reflect on the victim's sexual conduct or on the sexual conduct of someone to whom the victim was attached. It might reflect on the victim's personal characteristics or disfigurements or disabilities. It appears to follow from the findings of the majority that evidence of provocation in all these cases was of no value on a disciplinary charge of violence, either by way of defence or by way of mitigation of penalty. It is impossible, in my judgment, to hold, on the majority's findings, that the implementation of this policy falls within the language of section 1(1)(a) of the Race Relations Act 1976.
52. I am very troubled about the evidence about the treatment of Mr McCulloch which was before the tribunal. All that we know about it is that Mr McCulloch struck a colleague at work, that he was white, and that his dismissal in 1994 was commuted to a suspension for four weeks once his service with the company and good working record had been taken into account. I am not, however, willing to translate my deep sense of unease into a dissent on the question of remission because I can see the force of the approach adopted by Peter Gibson LJ in paragraph 43 of his judgment, which I have had the opportunity of reading in draft.
53. On the issues relating to vicarious liability, I agree with the judgment of Peter Gibson LJ and have nothing to add.
54. For these reasons I, too, would allow this appeal.
LORD JUSTICE ROBERT WALKER:
55. I agree that this appeal should be allowed for the reasons given by Lord Justice Peter Gibson.
(Order does not form part of the approve judgment)