MR. JUSTICE BROWNE-WILKINSON: Mr. Owens complained to an industrial tribunal that he had been unlawfully discriminated against by his employers, Showboat Entertainment Centre Ltd. ("Showboat") contrary to Section 4(2)(c) of the Race Relations Act 1976. The industrial tribunal upheld his complaint and awarded him compensation::,' of £1,350. Showboat appeal against that decision.
The reasons given by the industrial tribunal for their decision are very lengthy and intricate. For the purposes of this judgment the relevant facts can be summarised very shortly. Mr. Owens is a white man. He was employed by Showboat as manager of an amusement centre (operated by Showboat) from 23rd October 1980 to 23rd April 1981, when he was dismissed. Since he had been employed for less than the qualifying period of 52 weeks, he had no right to complain that he had been unfairly dismissed under the Employment Protection (Consolidation) Act 1978. However he alleged, and the industrial tribunal held, that he had been dismissed because of his refusal to carry out a racially discriminatory instruction from Showboat to exclude young blacks from the amusement centre. The industrial tribunal held, with some reluctance, that it was bound by the decision of this appeal tribunal in Zarczynska v. Levy [19793 ICR 184 to hold that such conduct amounted to unlawful discrimination against Mr. Owens.
On this appeal, Showboat challenge the correctness of the decision in the Levy case. They also allege that certain findings of the industrial tribunal were wrong either as being based on some misdirection in law or on the grounds that they were perverse. By agreement, we have heard argument first on the question whether the Levy case is rightly decided and ought to be followed. This judgment, deals only with that question.
In essence, the question raised by this appeal is whether, for the purposes of the 1976 Act, A can unlawfully discriminate against B on the ground of C's race. To answer that question, it is necessary to look at the 1976 Act in some detail. In outline, the structure of the Act is as follows. Part I defines what constitutes "discrimination". Discrimination may consist either of radial discrimination or victimisation. For present purposes it is only necessary to consider racial discrimination: it was not submitted that there had been discrimination by victimisation of Mr. Owens. Section 1(1)(a) provides as follows:
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; ..."
Then Parts II and III of the Act render unlawful certain acts of discrimination in the employment field and other fields. We are only directly concerned with Part II of the Act, Section 4(2)(c) of which provides as follows:
"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
(c) by dismissing him, or subjecting him to any other detriment."
Part IV is headed "Other Unlawful Acts" and includes Section 30 which provides as follows:
"It is unlawful for a person -
(a) who has authority over another person;
...
to instruct him to do any act which is unlawful by virtue of Part II or III, or procure or attempt to procure the doing by him of any such act."
Part VIII of the Act deals with enforcement. Section 53(1) provides as follows:
"Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act."
Then Section 54(1)(a) provides:
"A complaint by any person ('the complainant1) that another person ('the respondent') -
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II;
...
may be presented to an industrial tribunal."
Section 63(1) provides as follows:
"Proceedings in respect of a contravention of section 29, 30 or 31 shall be brought only by the Commission in accordance with the following provisions of this section."
Broadly, the effect of these provisions is as follows. The racially discriminatory instructions given by Showboat to Mr. Owens were unlawful by virtue of Section 30. But under Section 63 only the Commission for Racial Equality has the right to bring proceedings based on such illegality. Mr. Owens can only bring a complaint if he brings himself within Section 54(1)(a) by showing that there has been unlawful discrimination "against" him. Therefore the question is whether the racially discriminatory instruction not to admit blacks (which constituted discrimination "against" the blacks excluded) can also be regarded as discrimination "against" Mr. Owens.
In the Levy case, the circumstances were broadly the same as in the present case: an employee who had not got the necessary qualifying period to complain of unfair dismissal was dismissed because of her refusal to obey an instruction not to serve black customers. This appeal tribunal held that she had been unlawfully discriminated against contrary to Section 4(2)(c) of the 1976 Act. It is plain that one of the determinant reasons for the decision was that any other view would have produced the result that an employee who was dismissed for refusal to obey a racially discriminatory, and therefore unlawful, order would have no redress: the remedy available to the C.R.E. under sections 30 and 63'was of no value to such an employee. Against that background, in reliance on certain dicta in the Court of Appeal, this appeal tribunal felt able to depart from what they apparently thought was the literal meaning of the words in the 1976 Act and hold that there had been unlawful discrimination against the employee.
In argument, Mr. Hytner (for Mr. Owens) whilst supporting the actual decision in the Levy case has not sought to rely on the reasoning in the judgment. In summary, Mr. Hytner's submissions were as follows. The ordinary canons of construction have to be applied in this case, i.e. if the words of the Act are plain, effect must be given to them; but if they are susceptible of two possible meanings that meaning should be adopted which gives effect to the intention of the legislature if such intention can be discerned.
He submits that the words in Section 1(1)(a) "on racial grounds" are clear and cover any case where the race (whether of the complainant or of a third party) was an effective cause of the detriment suffered by the complainant. In particular, he submits, there is no room for impliedly limiting the general words of Section 1(1)(a) so as to read them as referring only to the racial characteristics of the complainant. Alternatively he submits that, if there are two possible meanings of the words "on racial grounds," we should adopt the meaning which gives effect to the intendment of Parliament, and Parliament cannot have intended that an employee, faced with an unlawful racialist order, would have to choose between complying with such an unlawful order (thereby himself committing an unlawful act) or disobeying the order thereby jeopardising his job without any possibility of compensation for its loss. Mr. Hytner further submits that the existence of Section 30 and of the C.R.E.'s right to complain of a breach of it is not inconsistent with Mr. Owens having a separate right to complain of the employers' unlawful instructions.
Mr. Harvey (for Showboat) does not suggest any different approach to the construction of the statute. But in his submission it is clear when the statute is looked at as a whole that, for discrimination on racial grounds to be "against" a complainant, the grounds must relate to the race of the complainant and not of others. He relies on the fact that Section 30 comes in Part IV of the Act which is headed "other unlawful acts"; he submits that the use of the word "other" shows that the giving of a racialist instruction would not, apart from Section 30, be an unlawful act. Moreover, he submits that Part IV of the Act is dealing with matters which are preparatory to, and therefore pre-date, any act which is rendered unlawful by Parts II and III and it is for this reason that they are dealt with separately. He submits that, to the extent that it is legitimate to have regard to the intendment of Parliament, it is not possible to find an intendment to give every employee suffering as a result of racially deplorable conduct by the employer an individual right to complain: certain remedies are given to the C.R.E. alone. Moreover Mr. Owens' inability to complain of what has been done is due to the requirement of the 52-week qualifying period for the purposes of unfair dismissal, a requirement which in practice leaves many employees without redress for grossly unfair dismissals in areas other than racial discrimination. Finally, he submits that even if it is possible to say that there could be discrimination against Mr. Owens by reason of discrimination related to another's race, Section 1 still requires one to compare the employers' treatment of Mr. Owens with the treatment they would have given to another manager who also refused to obey the instructions. It is plain that such other manager would also have been dismissed. Therefore, says Mr. Harvey, there is no relevant discrimination.
We have not found this an easy case to decide and our minds have changed from time to time during the course of the argument. But in the end we accept that Mr. Hytner's argument is correct. In our judgment, the words of Section 1(1)(a) are capable of two possible meanings, the one reflecting the broad approach of Mr. Hytner and the other the narrower approach of Mr. Harvey. It is plain that the person "against" whom there has been discrimination is the person who is being treated less favourably by the discriminator, i.e. the words "that other " in sub-paragraph (a) refer back to "another" in the phrase "a person discriminates against another" at the beginning of the subsection. Therefore the only question is whether Mr. Owens was treated less favourably "on racial grounds." Certainly the main thrust of the legislation is to give protection to those discriminated against on the grounds of their own racial characteristics. But the words "on racial grounds" are perfectly capable in their ordinary sense of covering any reason for an action based on race, whether it be the race of the person affected by the action or of others.
We do not find that any of Mr. Harvey's arguments compel us to give the words a narrow meaning. The fact that the giving of racialist instructions is dealt with separately in Section 30 in a part of the Act headed "Other unlawful acts" is in our judgment explicable without requiring the words "on racial grounds" to be given a narrow meaning. The mere giving of racialist instructions is not, on any view, rendered unlawful by the earlier provisions of the Act. Parts II and III of the Act only render discrimination unlawful to the extent that such discrimination has been manifested in the various ways specifically mentioned in Parts II and III. Therefore, apart from Section 30, the mere giving of the instruction unaccompanied by any action pursuant to such an instruction which falls within Parts II or III would not be rendered unlawful by Parts II or III of the Act. Therefore Section 30 by making unlawful the giving of the instruction itself is creating another unlawful act, namely the mere giving of the instruction. Moreover there is nothing manifestly absurd in giving the C.R.E. the right to take proceedings to stop the giving of such instructions (if necessary by means of an application for an injunction under Section 63(4)) at the same time as giving a right of individual redress to someone who has actually suffered as a result of such instruction.
We do not accept Mr. Harvey's submission that Part IV (including Section 30) is dealing only with matters which are preparatory to (and pre-date) any actual act of discrimination. Although Section 29 (dealing with advertisements) and Section 31 (dealing with inducement to commit unlawful acts) relate to acts pre-dating any discrimination rendered unlawful by Parts II and III, Section 28 is dealing with discriminatory practices which may concurrently give rise to individual claims under Parts II and III. Moreover, Sections 32 and 33 create vicarious liability concurrent with the liability of the prime wrong-doer. We can see no pattern indicating that Part IV as a whole deals only with matters which pre-date discrimination rendered unlawful by Parts II and III.
At this stage we should note a point not relied on by Mr. Harvey but which has caused us some hesitation. Section 1 of the Act deals with direct discrimination in subsection (l)(a) and indirect discrimination in subsection (l)(b). It seems to us clear that in relation to indirect discrimination under subsection (l)(b) the discrimination must relate to the race of the person against whom it is exercised. Thus, the requirement or condition is applied to "that other"; it is the racial group of "that other" whose ability to comply with the requirement has to be considered; it is detriment to "that other" which has to be shown. Throughout the section, the words "that other" relate back to the person who at the beginning of the section is the person against whom there has been discrimination. It seemed to us that if, for the purposes of indirect discrimination, the racial characteristics of the complainant were the only relevant ones, it might be argued that the same must also be true in relation to direct discrimination under Section 1(1)(a).
However, Mr. Harvey did not take up the suggestion and, in relation to this case, Mr. Hytner provided the answer. He said that if, for example, an employee refused to carry out an indirectly discriminatory recruitment policy on the grounds that it was racially discriminatory and was dismissed for such refusal, his dismissal would be "on racial grounds" within Section 1(1)(a) notwithstanding that his refusal was a refusal to be a party to indirect discrimination within Section 1(1) (b).
We can therefore see nothing in the wording of the Act which makes it clear that the words "on racial grounds" cover only the race of the complainant. As we have said, it seems to us that on the words of the Act alone it is open to give the words either a narrow or a broad construction. In Race Relations Board v. Charter [1973] A.C. 868 at 887 Lord Reid said (of the Act of 1968):
"I would infer from the Act as a whole that the legislature thought all discrimination on racial grounds to be deplorable but thought it unwise or impracticable to attempt to apply legal sanctions in situations of a purely private character."
We are not here dealing with matters of a purely private character. Moreover Parliament, by Section 30, has shown that the giving of instructions to discriminate on racial grounds was conduct of a kind within its intendment. The only question is whether Parliament's intentions stopped short of giving a remedy to somebody to whom such instructions were given. We find it impossible to believe that Parliament intended that a person dismissed for refusing to obey an unlawful discriminatory instruction" should be without a remedy. It places an employee in an impossible position if he has to choose between being party to an illegality and losing his job. It seems to us that Parliament must have intended such an employee to be protected so far as possible from the consequences of doing his lawful duty by refusing to obey such an instruction. We do not consider that the 52-week qualifying period thought by Parliament to be appropriate in relation to other cases of unfair dismissal would be thought to be appropriate in cases of racial discrimination to which no such time limit is attached. Nor do we think that the existence of the C.R.E.'s right to enforce Section 30 affects our view: there is no reason why the individual's right to complain of the wrong done to him and the C.R.E.'s right to stop unlawful action generally by injunction should not co-exist.
We therefore conclude that Section 1(1)(a) covers all cases of discrimination on racial grounds whether the racial characteristics in question are those of the person treated less favourably or of some other person. The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations.
We, like the appeal tribunal in the Levy case, gain considerable support from certain remarks made in the Court of Appeal in Race Relations Board v. Applin [1973] 1 QB 815. That case was concerned with incitement by Mr. Applin to stop foster parents taking in coloured children placed with them by the local authority. The case turned on whether a refusal by such foster parents to take coloured children would have been unlawful under sections 1 and 2 of the Race Relations Act 1968. Section 1 of the 1968 Act provided as follows:
"For the purposes of this Act a person discriminates against another if on the ground of colour, race or ethnic or national origins he treats that other, in any situation to which Section 2 ,.. applies, less favourably than he treats or would treat other persons ..."
It was argued that by refusing to take coloured children the foster parents would have discriminated against the coloured children themselves or alternatively against the local authority who sought to place such children with foster parents. The Court of Appeal held that such conduct would have amounted to discrimination against the children themselves. But Lord Denning said that they would also have discriminated against the local authority. Counsel had put to the Court of Appeal the example of two white women who were refused entrance to a public house if accompanied by coloured men. After quoting Section 1 of the 1968 Act, Lord Denning said (at page 828 D):
"That definition of discrimination is wide enough to cover the case of the two women. They are treated less favourably than other women on the ground of colour. Similarly in this case [the foster parents], would discriminate against the local authorities on the ground of colour if they said 'We will take white children only.'"
Stephenson L.J. said at page 831 E:
"The persons who seek to obtain or use the services which [the foster parents] are concerned with providing are the three local authorities who send them children to board and foster. The persons who obtain and use them are the foster children boarded out with the [foster parents] . If the position is as simple as that and that is a complete account of it, then it is necessary to decide (what Mr. Vinelott has conceded) that 'A' can discriminate against 'B' on the ground of 'C's' colour, race or ethnic or national origin. If that were necessary I would so decide in agreement with Lord Denning."
The Applin case went to the House of Lords: see [l975] A.C. 259. Only Lord Simon in the House of Lords dealt with this particular point. He said this (at page 289 H):
"Moreover, I respectfully agree with the learned Master of the Rolls that by insisting on white children only the [foster parents| would be,, within the statutory definition, discriminating against the local authorities themselves on the ground of colour. It is inadmissible to read section 1(1) as if it read 'on the ground of his colour'. Not only would this involve reading into the subsection a word which is not there; it would also mean that some conduct which is plainly within the 'mischief would escape - for example, discriminating against a white woman on the ground that she had married a coloured man. It would therefore, in my view, be discrimination if the [foster parents] had treated local authorities seeking boarding-out facilities for coloured children less favourably than they would treat local authorities who either had no coloured children in care or who proffered none for boarding-out."
Although there are substantial differences between the 1968 Act and the 1976 Act which normally render it dangerous to treat authorities on the earlier Act as helpful on the later Act, in this instance the definition of discrimination in the two Acts is very similar. Although it seems to have been conceded in the Court of Appeal that 'A' could discriminate against 'B' on the ground of 'C's' colour, that concession was approved. Moreover it does not appear that the same concession was made in the House of Lords. Therefore, although we are not bound by the dicta, they are in our view persuasive authority for holding that 'A' can discriminate against 'B1 on the ground of 'C's' colour. Once this point is reached, there seems to be no stopping point short of holding that any discriminatory treatment caused by racial considerations is capable of falling within Section 1 of the 1976 Act.
Finally, we must deal with Mr. Harvey's submission that, in deciding whether or not Showboat discriminated against Mr. Owens, one has to compare how Showboat treated Mr. Owens with the way in which Showboat would have treated another manager who also refused to carry out the unlawful racialist instructions. Mr. Harvey says that is to compare like with like. In our judgment, this submission is misconceived. Although one has to compare like with like, in judging whether there has been discrimination you have to compare the treatment actually meted out with the treatment which would have been afforded to a man having all the same characteristics as the complainant except his race or his attitude to race. Only by excluding matters of race can you discover whether the differential treatment was on racial grounds. Thus, the correct comparison in this case would be between Mr. Owens and another manager who did not refuse to obey the unlawful racialist instructions.
Mr. Harvey relied in support of his argument on a dictum of Lord Salmon in the Applin at page 294 D where he said this:
"Even if local authorities may be regarded as a section of the public and as seeking to obtain facilities or services for themselves, I doubt whether the [foster parents], if they refused to foster coloured children in the care of those local authorities would be discriminating against them unless it could be shown that they were willing to foster coloured children in the care of other local authorities. It is, however, unnecessary to express a concluded view on this point..."
In our judgment, this dictum far from supporting Mr. Harvey's submission is against it. Lord Salmon is saying that you have to ask whether the foster parents would have adopted a different attitude to different local authorities, comparing their refusal of coloured children from one local authority with their acceptance of such children from another local authority. You do not assume that the person with whom the comparison is made has the same racial characteristics or attitude to racial conduct as the complainant.
We therefore agree with the decision in the Levy case (although for rather different reasons) and hold that on the facts as found by the industrial tribunal the industrial tribunal were right in law in holding that Mr. Owens had been unlawfully discriminated against. Unless the parties wish to test this decision in the Court of Appeal, the appeal must be restored for further hearing on the other points raised by the notice of appeal.
Upon the appellants abandoning the other grounds of appeal, leave to appeal to Court of Appeal.
P. A. HASWELL, 5 CASTLE HILL VIEW, BARDSEY, LEEDS LS17 9EE. VERBATIM REPORTER AND TAPE TRANSCRIBER
