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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Nagarajan v Agnew & Ors [1993] UKEAT 270_92_2107 (21 July 1993)
URL: http://www.bailii.org/uk/cases/UKEAT/1993/270_92_2107.html
Cite as: [1993] UKEAT 270_92_2107
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At the Tribunal
On 21 July 1993
Before
THE HONOURABLE MR JUSTICE KNOX
MRS M L BOYLE
MR K M HACK JP
MR G NAGARAJAN
(2) MR S J MCMANUS (3) LONDON UNDERGROUND LTD
MR G NAGARAJAN
(2) LONDON REGIONAL TRANSPORT
(1) MR M SWIGGS (2) LONDON REGIONAL TRANSPORT
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
MR G NAGARAJAN APPEARED IN PERSON
ALL OTHER PARTIES REPRESENTED BY: MR R LEMON (of Counsel)
Instructed by:
Frances Low
Solicitor to the LT Group
London Transport
55 Broadway
London SW1H 0BD
MR JUSTICE KNOX: We have before us Appeals and Cross-Appeals from a decision of the Industrial Tribunal sitting at London (South) on 6/7/8/9/10/13/14/16/17 January 1992. The decision was sent to the parties on 25 February of that year. The applications that were before the Industrial Tribunal were three in number and are conveniently described by the Industrial Tribunal in the first paragraph of its decision. It reads as follows:
"The Applicant Mr Nagarajan has presented three applications to the Tribunal. In Case Number 31995[I omit the rest of the reference] he complains that Mr M Swiggs, the Central Personnel Manager of London Regional Transport, and London Regional Transport on 1 October 1990 in rejecting his application to become Travel Information Adviser with London Regional Transport (hereinafter referred to as LRT) through Mr Swiggs victimised him contrary to Section 2 of the Race Relations Act 1976 ["the 1976 Act"] and thereby he suffered a detriment contrary to Section 4(2)(c) of the Act. In Case Number 1238/91 he complains that London Underground Ltd (LUL) discriminated against him contrary to Section 1(1)(a) and victimised him contrary to Section 2(1)(a), (c) and (d) and Section 4(2)(c) of the Act in relation to three incidences (sic). The first was a reference supplied by Mr Agnew to the London Borough of Tower Hamlets in October 1990 [the second I omit because there is no appeal in relation to it]. The third that there was racial discrimination and victimisation contrary to the above sections of the act when the Respondent LUL refused to consider his application for a clerical post in September 1990. In Case Number 14099 Mr Nagarajan complains that Mr Agnew, Mr McManus, and LUL discriminated against him by victimisation in an entry that was made by Mr Agnew with Mr McManus' knowledge and approval in his staff record."
The factual background is dealt with in very considerable detail by the Industrial Tribunal which rehearses Mr Nagarajan's career before and after he was first employed by London Transport. I use that expression to cover both LRT and LUL. The relationship between those two corporations is that LUL is one of two main operating subsidiaries of LRT which is the holding company and which of course runs London Transport, LUL being equally obviously concerned with the underground.
Mr Nagarajan was born in May 1940, served in the Indian army from 1959 to 1966, appears to have come to England round about 1967, had employment as a draughtsman and became a signalman with London Transport in 1969 until 1973. From 1973 to 1975 he was a travel clerk with Clarksons the travel agents. There was then a spell in India and he spent two years as a solicitors' accounts clerk on his return from the three year's sabbatical in India. We then come to the relevant part of his history.
On 4 June 1979 he joined LUL and was a station foreman until December 1988. Right at the end of that period, for the first time, he made complaints of racial discrimination against him and this caused an adverse reaction at that stage by a certain Mr Agnew, whom I have already mentioned, then the divisional manager for the Central and Bakerloo Division of LUL. Mr Agnew sent a letter in which he said:
"With regard to your allegation of colour prejudice these allegations are insulting to the integrity of the managers concerned and are strongly refuted."
There were then two Originating Applications issued by Mr Nagarajan, one on 24 November 1988, another on 7 December 1988. He switched to becoming and serving as a travel information assistant for some four months at the beginning of 1989 when there ensued a settlement of the two Originating Applications that I have mentioned largely, if not exclusively, due to the intervention of a senior official, Mr Arthurton, who was then passenger services director and has now become director of passenger services as of November 1991 and who is, the Industrial Tribunal found, a board member of LUL.
As a result of that intervention there ensued a settlement through the good offices of ACAS in which Mr Nagarajan withdrew his two applications that I have mentioned. The letter from Mr Arthurton that contained the offer that led to this settlement contains this passage quoted by the Industrial Tribunal:
"I am prepared to offer you one of the current vacant posts on the Piccadilly Line (at a location to be agreed with the General Manager), with effect from 13 February 1989 (when the majority of appointments took effect) and subject to the same training and probationary arrangements as other appointees."
Later on there were four conditions attached to the offer:
"1That you withdraw your outstanding Industrial Tribunal claims;
2that you will not further pursue any further claims or complaints in respect of any previous applications for jobs within LUL;
3that the settlement is endorsed by ACAS, the Government Conciliation Service;
4that you will act as a supportive and responsible member of my [Mr Arthurton's] management team."
That was communicated to the people who were responsible for running the Piccadilly Line to which Mr Nagarajan was to be assigned. A Mr McManus the general manager, and a Mr Ursell, the train service manager were not pleased because they preferred, the Industrial Tribunal found, to pick their own duty trained managers but Mr Arthurton of course was senior in rank to them and he explained that Mr Nagarajan had had a rough deal and that gave Mr McManus the impression that it was something to do with an unfair dismissal claim.
There then ensued an unfortunate period of some five weeks starting in early May 1989 when there was a series of clashes of one sort and another. On the view that we take of this matter is it not necessary for us to do what the Industrial Tribunal did in very great detail, which was to examine the successive clashes that occurred between Mr Nagarajan on the one hand and various people involved in management on the other. It is clear enough that fairly diametrically opposed attitudes were taken up on either side. For example we find in paragraph 18 of the Industrial Tribunal's decision, which contains a quotation from a report that a Mr Blogg, one of the management team, wrote saying that from Mr Blogg's point of view he felt that a written apology and a retraction of the allegations from Mr Nagarajan was required, the following:
"We find this is a (sic) symptomatic of the attitude of Mr Blogg, Mr Goodacre and Mr Ursell that they took the view that any allegations of racial harassment were totally unfounded and should be ignored."
On the other hand one finds this in relation to Mr Nagarajan's own attitude, at the foot of the same page in the Decision in paragraph 19:
"By this date [which is early June] Mr Nagarajan was convinced that whenever anything he wanted to do was denied him it was due to racial prejudice. We also find that Mr Ursell, Mr Blogg, and Mr Goodacre were beginning to despair of ever being able to make any progress with Mr Nagarajan and were angered by his constant reference to racial harassment and victimisation."
The period of five weeks then came to an end with deadlock and apart from one day Mr Nagarajan did not again actively work for LUL. There were various meetings to try and sort out the position. As a result of one of them Mr Arthurton of whom the Industrial Tribunal formed a very favourable impression saying that they found him an "impressive witness", decided that he had been mistaken when he had decided that Mr Nagarajan should be trained as a duty train manager and the Industrial Tribunal says:
"Mr Arthurton's letter also said that he [Mr Nagarajan] would remain on leave with pay and that he [Mr Arthurton] had been wrong to think he was suitable as a Duty Train Manager."
There were then further Originating Applications issued by Mr Nagarajan, on 4 July and 10 August 1989 and on 1 November of that year one of those two cases was settled by the payment to Mr Nagarajan of £20,000.
The agreement attached to the settlement decision is quoted by the Industrial Tribunal in the following terms:
"London Underground Ltd agree to pay and Mr Nagarajan agree to accept the sum of £20,000 in full and final settlement of all claims, expenses and other matters arising out of any employment with London Underground Ltd and the termination thereof. I agree that forthwith upon receipt by me of a cheque in that sum from London Underground Ltd I will withdraw my claims 15989/89, 23458/89. This settlement is without prejudice to the pension rights of G Nagarajan."
It is plain beyond any sort of argument that by that time Mr Nagarajan's employment by LUL or indeed by LRT had ceased.
There then ensued a period when Mr Nagarajan was unemployed and in September 1990, a year after the settlement and rather more than a year after Mr Nagarajan had actually ceased actively to work for London Underground Ltd, Mr Nagarajan spoke to a Mr Barry Lines his previous manager in the LRT Travel Information Service at which it will be recalled he spent some four months in the early part of 1989. Mr Lines suggested that he should apply for the post of Travel Information Adviser as he had worked in that post previously and there had been no criticism in the four months that he had been there from January 1989 to May of that year and it was as a result of the rejection of that application by Mr Swiggs which was brought about as a result of a report made by Mr Agnew that the Originating Applications with which these appeals are concerned in two cases were involved: one being 31995 and the other 14099.
So far as those matters are concerned the relevant facts dealing with the events that gave rise to the claims now in issue are found at the end of the Industrial Tribunal's Decision in paragraphs 33 and 34. Paragraph 33 reads as follows:
"We turn now to consider Case Number 31995 against Mr Swiggs and the LRT which is based upon the refusal by those respondents to consider Mr Nagarajan's application to become a travel information assistant. On 14 September 1990 Mr Nagarajan having spoken to Mr Lines in the LRT Travel Information Service was encouraged to put in an application for a post as travel information adviser, one which he had started to train for in January 1989. Mr Nagarajan submitted an application on 14 September 1990. On 1 October 1990 Mr Swiggs informed Mr Nagarajan by a letter of that date that his application had been rejected. Before considering the application, having seen Mr Nagarajan's CV, Mr Swiggs required his last manager to complete a grey folder which at that time was used by LRT but had fallen to disuse with LUL to answer a question as to whether re-engagement would be recommended. That document reached Mr Agnew the General Manager of the District Line. Mr McManus in fact had been Mr Nagarajan's last manager. However, he was not available and there was some urgency to complete the question in the appropriate form which asked "would you recommend re-engagement. If no state reason." Mr Agnew completed that question by stating the following:
"From my involvement whilst District Manager (Central and Bakerloo Lines) I consider that under no circumstances should Mr Nagarajan be considered for re-engagement. His attitude to his managers was entirely unacceptable.
He dates the answer 21 September 1990 and on the same day he attaches to it the following comment to Mr Swiggs:
"I return the enclosed staff record for Mr G Nagarajan. Under no circumstances do I recommend re-engagement. Please note that the record does not contain adequate record to his previous history particularly whilst training as a DTM on the Piccadilly Line."
Previous questions on the record asked for a report on competency, industry, honesty, timekeeping and sobriety. None of those questions were completed. There is no doubt that Mr Nagarajan had had great difficulties with management in the five weeks he was on the Piccadilly Line training to be a duty train manager. However, while he was on probation for four months as a travel information adviser Mr Swiggs said in evidence there were no problems with his ability or with his relationship to management. In his previous 10 years employment there had also been no difficulties. None of this was recorded. Mr Agnew in evidence said that he had completed this record as there was some urgency. Before he completed it, and we find as a fact it was before he sent the form back, he spoke to Mr McManus who entirely agreed with Mr Agnew's assessment. Both say they were in no way influenced by the fact that Mr Nagarajan had brought a number of applications to the Industrial Tribunals under the Race Relations Act 1976."
That is the history of the facts by the Industrial Tribunal and they then make their findings and conclusions in the following paragraph 34 which reads:
"We find as a fact that Mr Agnew, Mr McManus, Mr Blogg and Mr Goodacre found Mr Nagarajan's allegations of racial discrimination and harassment by his managers totally unacceptable and regarded them as totally unfounded. The respondents have not relied on the defence which is available to them under Section 2(2) of the Act, that is:
"Sub Section (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation is false and not made in good faith."
We find that Mr Agnew because of his close contacts with Mr McManus and the Piccadilly Line and his contact in 1988 with Mr Nagarajan did find Mr Nagarajan;s allegations and applications to the Tribunal unwarranted because he was not prepared to accept that they were genuine. We find that he regarded them as unnecessary agitation on the part of Mr Nagarajan. We find that one of his reasons for writing the remark in the grey folder record was that for 5 weeks only, Mr Nagarajan's attitude to management was unacceptable, but we also find that a further element albeit it may be unconscious was the fact that Mr Nagarajan had made complaints about racial discrimination and harassment and had brought applications to the tribunal on those grounds, all of which are protected acts under Section 2 of the Act. It is quite clear that Mr McManus and Mr Agnew found Mr Nagarajan's constant and repeated allegations very trying and the inference we draw is, that it would be impossible for any person not to have been influenced by those allegations when writing the comment about re-employment in the grey folder record."
Paragraph 35 continues:
"Mr Swiggs acted on that information as he was bound to do. Mr Lemon, on behalf of the respondents, has conceded that LUL for this purpose were the agents of LRT. Therefore by reason of the provisions of Section 32(2) of the Act, Mr Swiggs and LRT are liable for the actions of Mr Agnew which were taken with the approval of Mr McManus. We do not find that Mr Swiggs or LRT in themselves had any racial or discriminatory motives in rejecting Mr Nagarajan's application to be a travel information assistant. They were bound to accept the remarks made by Mr Agnew. From the evidence he gave and the manner in which he gave it we are quite satisfied that Mr Swiggs is not himself racially prejudiced nor would he have acted in any discriminatory manner. However, he is bound by the acts of his agents as is his employer LRT. We therefore find that in Case Number 31995 there has been victimisation contrary to Section 2(1)(a), (b) and (c) of the Act and that thereby Mr Nagarajan contrary to Section 4(2)(c) of the Act was subject to a detriment in that he was not considered for employment as a travel information officer by LRT.
Applications 1238/91 and 14099/91 are dismissed.
Application 31995/90 succeeds."
We deal first with the appeal made to us by London Transport and Mr Swiggs in 31995 against that decision that Mr Nagarajan's application in that Originating Application succeeded. There are in our view two reasons for allowing the appeal. The first reason is this: Section 4(2)(c) of the 1976 Act was referred to repeatedly by the Industrial Tribunal in the course of its decisions. I use the plural because in addition to the main decision from which I have read extracts, there was also a decision on remedies given in April of the same year sent to the parties on 24 April and as a result of a hearing on 10th of that month. In the main decision from which I have extracts there are the following references to Section 4(2)(c) in the context of the Industrial Tribunal's decision.
First of all in the actual summary of the decision before the reasons in full start, there is recorded that the unanimous decision of the Tribunal was that Mr Swiggs and London Regional Transport in case Number 31995 are in breach of Section 2(1) and Section 4(2)(c) of the Race Relations Act 1976.
Secondly there is the passage that I have already read and don't repeat at the end of the main decision in paragraph 35 in case Number 31995 that there had been victimisation and that Mr Nagarajan contrary to Section 4(2)(c) of the Act was subject to a detriment in that he was not considered for employment as a travel information officer.
Thirdly in the decision on remedies sent to the parties on 24 April 1992 at paragraph 1 the Industrial Tribunal described what it had earlier done in the main hearing with one fairly clear clerical error in the following terms:
"In a reserved decision sent to the parties on 25 February 1992, this Tribunal dismissed two of the three applications it had heard over a period of nine days between 6 and 17 January 1992. The cases dismissed were numbers 1238 and 14099. We found in Case Number 14099 [that is a clear mistake for 31995] that the Respondents London Regional Transport and Mr Swiggs were liable for actions of two employees of London Underground Ltd. Those actions were breaches of Section 2(1)(a), (b) and (c) of the Race Relations Act 1976 and as a result of that victimisation Mr Nagarajan was subject to a detriment contrary to Section 4(2)(c) in that he was not considered for employment as a Travel Information Officer by the 2nd respondents."
The same is said in the next paragraph in relation to the entry that was made by Mr Agnew in that grey folder:
"It is that entry and the result of the first and second respondents in 31995 acting upon those remarks that resulted in our finding a breach of Section 2 and 4(2)(c) of the Race Relations Act 1976."
So not only once but four times the Industrial Tribunal referred to Section 4(2)(c). Mr Nagarajan, on the facts, plainly ceased to be an employee of LRT or any subsidiary of it in October 1989 at the latest. The events complained of in these proceedings before us centre round the entry in the grey folder which was effected on 21 September 1990 and it has not been contested before us but that Mr Nagarajan was at that stage, September 1990, no longer an employee but an ex-employee of LUL and LRT.
The relevant provisions of Section 2 are as follows:
"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -
(a)brought proceedings against the discriminator or any other person under this Act; or
(b)given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c)otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d)alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
Subsection (2) I have already read. Section 4 in Subsections (1) and (2) reads as follows:
"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -
(a)in the arrangements he makes for the purpose of determining who should be offered that employment; or
(b)in the terms on which he offers him that employment; or
(c)by refusing or deliberately omitting to offer him that employment.
(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
(a)in the terms of employment which he affords him; or
(b)in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c)by dismissing him, or subjecting him to any other detriment"
Mr Nagarajan submitted to us that the references that I have read in the two decisions of the Industrial Tribunal to Section 4(2)(c) were misprints or clerical errors for Section 4(1)(c). We are unable to accept that for two reasons. First of all whereas one could well see that there was a clerical error if there was one mistake, when the matter is stated no less than four times in entirely consistent terms one with the other, it becomes very much more difficult to treat what has been said so often as being not one but four clerical errors.
Secondly, and perhaps more importantly, in the passage which actually gives the decision on this score (that is at the end of paragraph 35 of the main decision) the reason that is given for it is suffering and detriment which is of course a phrase that is taken straight out of 4(2)(c) and is a phrase which does not appear in 4(1)(c) and for those reasons it seems to us unarguable that when the Industrial Tribunal said 4(2)(c) it meant 4(1)(c).
Mr Nagarajan, true it is in a slightly different context, made a submission also that the ambit of Section 4(2)(c) was sufficiently wide to embrace the case where an employer subjects an ex employee to a detriment after the employment relationship has terminated by some act which is referable to the period when the employment relationship subsisted and that on that basis it would be possible for there to be an unlawful discrimination under Section 4(2) at a time when the person discriminated against had previously been but no longer was an employee of the person who had been the employer. That is a submission in relation to the true construction of Section 4(2) and raises the question whether there has to be a subsisting employment relationship at the time when the events contemplated in the subsection occur.
If one looks at the events in the way in which they are set out in the three paragraphs of the subsection it seems to us impossible to avoid the conclusion that the majority of the events listed can only occur during employment: for example discrimination against an employee in the terms of employment which the employer affords him can, fairly clearly, only occur during the employment. Similarly in paragraph (b) opportunities for promotion, transfer or training are only possible during the period of employment and not after it. In (c) dismissing is obviously only something that can be done to an existing and not an ex employee.
True it is that the phrases "access to any other benefits, facilities or services" and "subjecting him to any other detriment" by themselves could operate after the employment has come to an end but it would be a very curious intention to ascribe to Parliament to regard those detriments - to use the word as covering not only what is called a detriment but benefits, facilities and services deprivations - as applying both inside and outside employment where all the other aspects of the matter are necessarily limited by their nature to the period of the employment. It is also to be observed that the whole provision is couched in the present tense - `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' and the natural meaning of the phrase is that the employer is discriminating against the employee at a time when there is an employment relationship subsisting between them. We can see nothing that points towards the subsection being given a false or artificial meaning. On the contrary, had it been intended to include benefits, facilities or services or detriments post employment, we feel that Parliament would certainly have made it explicit that that extended meaning was one which was the correct one and of course it does not do so.
For all those reasons it seems to us that on its true construction Section 4(2) is limited to events occurring during the subsistence of the relevant employment.
It was also we should mention at this stage submitted by Mr Nagarajan that one can have an infringement of Section 2 of the 1976 Act by itself and that is clearly right but he went on to submit that that could also constitute an unlawful act sanctioned by the 1976 Act regardless of whether or not there was a case established under one or other of the sections in Part II of the 1976 Act which starts with Section 4 and goes on until Section 16.
He referred us to Section 54 which contains the jurisdiction of industrial tribunals in this regard. That reads as follows:
"(1) A complaint by any person ("the complainant") that another person ("the respondent")
(a)has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or
(b)is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant,
may be presented to an industrial tribunal."
It is clear of course that (b) is no wider than (a) because (b) contains the expression `such an act of discrimination' which refers back to the acts of discrimination mentioned in (a) and those are acts against the complainant which are unlawful by virtue of Part II. That is entirely consistent with the scheme of the Act as we see it which is that Part I contains definitions of two different sorts of discrimination, one in Section 1 discriminations that are commonly referred to as direct and indirect in Section 1(1)(a) and 1(1)(b) respectively and Section 2, Discrimination as it is called in the heading, by way of victimisation but nowhere in Section 1 or Section 2 is there anything said about its being unlawful. All there is in those two sections are definitions of what constitutes discrimination in certain circumstances.
It is only when one gets into Part II that the Act speaks of something being unlawful and at the risk of repetition we point to the fact that Section 4(1) starts:
"It is unlawful for a person...to discriminate against another"
and Section 4(2) starts:
"It is unlawful for a person...to discriminate against that employee"
That is the point and the only point at which unlawfulness comes into the equation. The purpose of Sections 1 and 2 in our view, quite clearly, is to enable one to understand the word `discriminate' where it is used notably in Section 4(1) and Section 4(2) and to incorporate the rather lengthy definitions in Sections 1 and 2 into the operative sections which create the unlawful act of Sections 4(1) and (2) and in our view it is plain beyond a doubt that one cannot have an unlawful act under the 1976 Act if all there is is either discrimination under Section 1 or discrimination by way of victimisation under Section 2 unaccompanied by any event or action which fits into one of the sections in Part II of the 1976 Act. That in effect is operative in relation to the extensions that there are in Sections 32 and 33 of the 1976 Act which deal so far as 32 is concerned, with the liability of employers and principals and deals with agency questions, and Section 33 deals with aiding unlawful acts. Section 32 provides:
"(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) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him."
So one has therefore vicarious responsibility both ways where there is a principal and agent relationship but that is an essential for that vicarious liability.
So far as Section 33 is concerned it sanctions knowing assistance of unlawful acts, subsection (1) reading:
"A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.
(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3) shall be deemed to aid the doing of the act by the employer or principal."
So that where there is this principal and agent relationship there is double liability both on the principal and on the agent. That is all tied to doing acts made unlawful by this Act and that of course in our view refers back to the general situation that we have described earlier whereby the unlawfulness only arises when not only is there racial discrimination or victimisation but also an infringement of one of the provisions in Part II of the 1976 Act.
On the view that we take of the Race Relations Act there is in our view a fundamental flaw in the Industrial Tribunal's decision in this case in 31995, in the finding that Section 4(2)(c) applied to confer a remedy on Mr Nagarajan because the employment relationship was not subsisting at the relevant time and that seems to us to be fatal to the validity of the decision.
There is however a second reason for allowing this appeal and it is this. It is apparent from paragraph 34 of the main decision which I have read that there were in the Industrial Tribunal's view two reasons that operated upon Mr Agnew in writing what he did write in the grey folder. First of all he took the view that Mr Nagarajan's attitude to management was unacceptable. Whether that was soundly based or not is not on the view we take of this matter, of critical importance to our decision. The reason for dismissal is an expression which has been described authoritatively in a slightly different context by Lord Justice Cairns in ABERNETHY v MOTT, HAY & ANDERSON 1974 ICR 323. At page 330 he said this:
"A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness or because he might have difficulty in proving the facts that actually led him to dismiss; or he may describe his reasons wrongly through some mistake of language or of law."
A set of beliefs therefore is capable of constituting a reason for dismissal and equally in our view it is capable of being the causative link which is needed in finding that there is a liability under Section 2 of the 1976 Act: see AZIZ v TRINITY STREET TAXIS LTD [1988] ICR 534.
We have no doubt that the Industrial Tribunal found as a fact that Mr Agnew believed in what he wrote. Equally we have no doubt that there were some findings of fact from which it could be inferred that there were solid grounds for that belief, although there is no explicit finding to that effect in the Industrial Tribunal Decision in our view. It is also clear that the Industrial Tribunal found that a reason (and we emphasise the indefinite article) for the comment in the grey folder that Mr Agnew wrote was that Mr Nagarajan had done protected acts. It will be recalled that it was described by the Industrial Tribunal as "a further element". What is left out in our view from that decision and in particular from the passage which I need not repeat from paragraph 34 of the main decision, is an evaluation of the significance of the second of those two reasons.
So far as the authorities are concerned we were referred to the decision in Aziz v Trinity Street Taxis by both sides and Mr Nagarajan drew our attention to the way in which the causative element which Lord Justice Slade giving the judgment of the Court of Appeal held to be an essential before there could be liability under Section 2(1)(c) of the 1976 Act. He was concerned with 2(1)(c) but his remarks are equally applicable to the other paragraphs of that subsection.
At page 547 Lord Justice Slade said this:
"Particularly in the light of sections 56 and 57, we are unable to accept that Parliament would have intended that a claimant, in reliance on category (c) of section 2(1), can establish unlawful discrimination within that section, even though the evidence shows that the fact that the protected act had been done under or by reference to the race relations legislation in no way influenced the alleged discriminator in his treatment of the complainant. In such a case, in our judgment, on the true construction of section 2(1), if the necessary causal link is to be established, it must be shown that the very fact that the protected act was done by the complainant "under or by reference to" that legislation influenced the alleged discriminator in his unfavourable treatment of the complainant."
Mr Nagarajan emphasised, perfectly properly, the use by the Learned Lord Justice of the word "influenced" and submitted to us that that was all that was required - an influence.
It is of course to be observed that the Aziz case was not a mixed motive case. What was in issue in that case was the expulsion of the complainant Mr Aziz from an association of taxi cab operators and on the findings of the Industrial Tribunal there was no doubt about why it had been done: it was done because Mr Aziz had made secret recordings and that conduct was regarded as an unjustified intrusion and a serious breach of the trust which ought to exist between the members of the association. So that it was a perfectly straight forward case in relation to the identification of the motive which moved the organisation that was the Respondent to the application. There were no questions of mixed motives.
For that one has to turn to the decision in OWEN & BRIGGS v JAMES [1982] IRLR 502 the facts of which are stated in the headnote as follows:
"Miss James, a coloured English woman, saw an advertisement by the respondent firm of solicitors for a young shorthand-typist. She applied for the job and was interviewed, but was unsuccessful. Several months later she saw another advertisement, which stated : "Competent shorthand-typist required by litigation solicitor. The applicant must be competent." Miss James phoned and found that it was the respondents who were advertising. She asked whether experience was necessary and was told that it was not necessarily required. She was given an appointment for an interview.
When Miss James arrived for her interview, she saw the partner who had interviewed her on her previous application. He said there was no point in interviewing her again and the discussion became hostile. On the same afternoon, a white girl was interviewed. She was offered the job, although she had a shorthand speed of 35 words per minute, compared with Miss James's speed of 80 words per minute. The respondents' partner allegedly said to the successful candidate: "I cannot understand why any English employer would want to take on a coloured girl when English girls are available."
Not unnaturally that led to an Originating Application and the Employment Appeal Tribunal upheld the decision of the Industrial Tribunal which decided that Miss James had been unlawfully discriminated against and found as a fact that Miss James' colour was one of the important factors in the employers' decision to reject her. The Court of Appeal upheld the decision of the Employment Appeal Tribunal so that Miss James won at every stage.
The passage that deals with the issue about there being more than one motive is contained at page 504 in paragraphs 21 and 22 of the Decision in Sir David Cairns' Judgment with which both Lord Justice Donaldson and Lord Justice Stephenson agreed. Paragraph 21 reads as follows:
"The fourth ground of appeal is that the Tribunal `were wrong ...in finding that there was unlawful discrimination but at the same time finding that there were other reasons for the appellants' acts contrary to the decision or the effect of the decision in Kirby v Manpower Services Commission [1980] IRLR 229'."
Sir David Cairns goes on
"This seems to be a contention that there can be no discrimination under s.4 unless the racial factor is the sole reason for not employing the applicant for employment. I reject any such proposition as being quite unwarranted by the language of the Act. The only authority that was called in aid in support of it is the one mentioned in the notice of appeal, which seems to me to give no support whatever to that proposition."
He then gives quotations and reasons for saying that Kirby's case was of no assistance to that particular argument and he says this:
"That was not a case of refusal of employment, but a case in which a person had been demoted, and the question that was inquired into was whether the racial consideration had anything to do with the demotion; it was found that it had not, and that it was for different reasons altogether and of course, if that were so, there could be no case. It is very different here, where there is the finding that it was an important factor, which is quite sufficient to found the case of discrimination."
Lord Justice Stephenson, having agreed with what Sir David Cairns had said went on to adopt what had been said below in the Employment Appeal Tribunal, the Judgment of which had been given by Mr Justice Slynn, and a particular passage that he quoted from Mr Justice Slynn's Judgment at paragraph 35 is this:
"If the Tribunal finds that a substantial reason for what has happened is that a candidate has not been considered for a post, or has been refused an appointment because of his or her race, then it seems to us that the Tribunal is entitled to say that there has been a breach of the legislation. If there are other grounds put forward which may also have been a factor, it is for the Tribunal to consider whether at the end, the candidate has, because of discrimination, lost the chance of or lost the appointment."
Lord Justice Stephenson expresses his agreement with that view of the law.
It is clear from that decision that a reason which is an important factor in the operative decision is quite enough, to quote Sir David Cairns. In our judgment, were an Industrial Tribunal finds that there are mixed motives for the doing of an act one or some but not all of which constitute unlawful discrimination, it is highly desirable for there to be an assessment of the importance from the causative point of view of the unlawful motive or motives. If the Industrial Tribunal finds that the unlawful motive or motives were of sufficient weight in the decision making process to be treated as a cause, not the sole cause but as a cause of the act thus motivated, there will be unlawful discrimination. An important factor in the decision is clearly well within that principle.
In this decision there is, as we have mentioned, no evaluation of the importance of the further element as it is called in the decision making process. We are not persuaded that it was a triviality or something in the nature of an aside which carried no significant weight at all, if only for the reason that the Industrial Tribunal came to the conclusion at the end of the day that there had been an unlawful discrimination in this case and the only basis upon which that could be justified on the basis of victimisation was that this further element constituted the unlawful motivation. It is therefore in our view not possible to say that this was something that the Industrial Tribunal treated as "just by the by". On the other hand, we are unable to detect from the Industrial Tribunal's Decision an evaluation of how important the further element was and that is a profoundly unsatisfactory state of affairs. When it is coupled with the point under Section 4(2) or (1) of the 1976 Act the combination seems to us amply sufficient to make it impossible for this decision to stand. The Appeal by Mr Swiggs and London Regional Transport will therefore be allowed.
There is however an additional point in relation to Mr Swiggs and that is that as paragraph 35 which I have read shows, the basis upon which he was made liable was that of vicarious liability. The Industrial Tribunal having recorded Mr Lemon's concession that LUL were the agents of LRT said this:
"Therefore by reason of the provisions of Section 32(2) of the Act, Mr Swiggs and LRT are liable for the actions of Mr Agnew which were taken with the approval of Mr McManus"
and they specifically also found that neither Mr Swiggs or LRT in themselves had racial or discriminatory motives in rejecting Mr Nagarajan's application to be a travel information assistant. They were bound to accept the remarks made by Mr Agnew.
So far as Mr Swiggs' vicarious liability is concerned, it can only be established in our view if it is a legitimate conclusion that Mr Swiggs was the principal and Mr Agnew was the agent and that in our view is an untenable proposition because Mr Swiggs was certainly not Mr Agnew's employer. What Mr Swiggs was was a fellow employee of another company in the same group of companies, Mr Swiggs being employed by LRT the holding company, Mr Agnew by LUL the subsidiary. There is not there, between two employees of two companies in the same group, a relationship of principal and agent.
Mr Nagarajan argued before us that there was a relationship of principal and agency established from the fact that Mr Swiggs made the request that he did make for the grey folder to be filled in and that that was amply sufficient to constitute the necessary relationship of principal and agent. We are unable to accept that proposition. Relationship of principal and agent is one which is well known to the law and there is no reason to suppose that Section 32 was aimed at anything other than the well-known legal relationship of principal and agent. Simply by making a request to a fellow employee, one employee does not constitute himself the principal of the other employee if he complies with that request. No doubt they are both agents of their common employer but in our judgment, unless a relationship of principal and agent is established between Mr Swiggs and Mr Agnew there is no liability on Mr Swiggs under Section 32 and we can see none.
Accordingly we do not propose to remit this decision in relation to Mr Swiggs because there is no vicarious liability possible on the facts as found. Equally we do not accept Mr Nagarajan's arguments that there was perversity in their finding that Mr Swiggs had no racial or discriminatory motive personally and that therefore he was not personally liable. The only basis on which they found his liability was on the basis of the acts of his agents.
Mr Nagarajan suggested to us that the Industrial Tribunal was wrong in its evaluation of Mr Swiggs' evidence and that Mr Swiggs had acted negligently or inadequately in accepting Mr Agnew's remarks in the grey folder at their face value given that Mr Swiggs knew that Mr Nagarajan had served four months perfectly successfully without complaint as a travel information assistant in the early months of 1989. We have no reason at all to suppose that the Industrial Tribunal was not perfectly well aware of those circumstances because they cited them in their own Decision, and before this Tribunal can find that a factual decision such as this is liable to be upset as perverse, something very much stronger than this preference for Mr Swiggs' own evidence to the inferences that Mr Nagarajan seeks to persuade us to draw, is needed.
We therefore see no basis upon which Mr Swiggs personally can be made liable either as a principal or as an agent and therefore there will be no remission with regard to him but with regard to him the appeal will simply be allowed and the decision reversed. As regards LRT no such certainty that it cannot be liable exists and there will therefore have to be a remission.
That leaves various points still to be decided. The first one is with regard to the decision in Application Number 1238 in relation to a reference that was given to Tower Hamlets. That is dealt with in paragraphs 31 and 32 of the Industrial Tribunal's main decision. What happened was that Mr Nagarajan applied for a post as an administrative assistant with the London Borough of Tower Hamlets early in October 1990. He asked for a reference and got through a chain (which is not necessary to set out) from Mr Ursell of LUL a letter which finished:
"As Mr Nagarajan has worked for London Underground Ltd on two occasions he would not be reemployed by the company again."
The Industrial Tribunal found, and there is no challenge to this, that that remark constituted victimisation within Section 2(1) of the Act. So far therefore, from Mr Nagarajan's point of view, so good. But the Industrial Tribunal then went on to say this:
"However, we then have to consider whether that resulted in a detriment to Mr Nagarajan. Mrs Corfield [she was the lady who was dealing with the matter from the Tower Hamlets end] said that so far as she was concerned the last paragraph had not worried her and in fact when she received the reference Mr Nagarajan became a temporary worker as opposed to a casual worker as a result of this reference. It is clear that no detriment was suffered."
In our judgment that is fatal to Mr Nagarajan's claim because as we have stated earlier in this decision, unless there is an unlawful act shown within Section 4 there is no illegality involved in victimisation by itself and without any repercussions. Section 4 of course is the section that sanctions subjecting employees to detriments and there is also the point about ex-employees but it is not necessary to go into that aspect of the matter because, there being no detriment, the victimisation under Section 2 is not by itself sufficient to constitute an unlawful act under the 1976 Act. The appeal therefore in relation to that matter brought by Mr Nagarajan will be dismissed.
There is another incident in respect of which there is an appeal before us and that regards a clerical vacancy that became open in September 1990. Mr Nagarajan on 14 September found that there were such clerical vacancies and submitted an application which was accepted. He put in an application form. There then was an unfortunate hiatus in that when he enquired, perfectly reasonably what was going on a few week's later, he was told that the application could not be found and a further application form was sent in and again he did not receive a reply and was told that there was a letter from LUL in the post but again there was a failure to address that letter properly and Mr Nagarajan never in fact received it.
In both that letter, which is of marginal relevance because Mr Nagarajan did not receive it but which is of some value in showing what LUL's case on the subject was, and in the Notice of Appearance that was put in on behalf of the Respondent, it was claimed as a defence to Mr Nagarajan's Originating Application that Mr Nagarajan was not successful because:
"he was not assessed as a strong applicant in comparison with other applicants for clerical vacancies available at the time".
That, however, was not the evidence that at the end of the day - and we say `at the end of the day' because we accept what Mr Nagarajan said that he gave evidence first and the Respondent's evidence came next. The Respondent's evidence was described as follows in this passage in the Industrial Tribunal's main decision at paragraph 29:
"The evidence we heard was that they applied for specific administrative posts [that was two other ladies who had obtained posts] and they were not part of the general pool of applications and that these were not posts for which Mr Nagarajan had applied as he had applied for a general clerical post. We accept that evidence. We are satisfied on the oral evidence we have heard that after the moratorum on recruitment due to the financial problems that emerged in September 1990 no persons were taken on for general clerical positions and that the 2 ladies referred to by Mr Nagarajan had applied for administrative posts which were differently advertised. It is unfortunate that both in their notice of appearance and in their letter of rejection the incorrect reasons were given. This is another example of poor communication and it is not surprising that Mr Nagarajan was suspicious of the motives behind his rejection."
There cannot be any doubt in our view as to what the Industrial Tribunal was accepting as the relevant evidence and when Mr Nagarajan submitted, as he did, to us that there was no definite finding when the Industrial Tribunal said "It is not surprising that Mr Nagarajan was suspicious of the motives behind his rejection", that is not looking at the sentence that matters. The sentence that matters is
"We are satisfied on the oral evidence we have heard that after the moratorum ...no persons were taken on for general clerical positions"
This was attacked by Mr Nagarajan on the basis that it was a perverse decision but there was evidence to that effect and it is no part of this Tribunal's functions which is only concerned with dealing with questions or issues of law, to pick and choose between the separate bits of evidence that an Industrial Tribunal hears and to say that the Industrial Tribunal should have believed one witness rather than another. That is a job which is entrusted by Parliament to the Industrial Tribunal and we have no jurisdiction to interfere with it. This is a pure factual question with which we have no jurisdiction to interfere and on that basis that appeal will also be dismissed.
Finally there is the appeal in relation to Application Number 14099. It may be the Industrial Tribunal had become a little tired by the time it had finished its decision in the main decision and it did unfortunately omit to state the reasons why the application in No. 14099 was dismissed. That was rectified in the Remedies Decision in paragraph 2 which contains this:
"Counsel for the respondents and Mr Nagarajan agreed that we might in this decision remedy an omission in the Decision that was sent to the parties on 25 February 1992 in that in that Decision we did not set out the reason why Case Number 14099/91/LS/B was dismissed. In that application Mr Nagarajan complained that he had been victimised by reason of the remarks entered in his staff record by Mr Agnew with Mr McManus's approval. London Underground Ltd were their employers. [I pause there to mention that that application was made with those three persons as the Respondents, Messrs Agnew, McManus and London Underground Ltd]. It is that entry and the result of the first and second respondents in 31995 acting upon those remarks that resulted in our finding a breach of Section 2 and 4(2)(c) of the Race Relations Act 1976. We dismissed Case Number 14099/91/LS because although there was an element in those remarks which amounted to victimisation contrary to Section 2 of the Act for the reasons set out in paragraph 34 of the Decision of 25 February 1992; however in addition to finding that there has been a breach of Section 2(1) of the Act the applicant must also satisfy the Tribunal that as a result of that breach he must also establish a breach of Section 4 of the Act. In Case Number 31995 Mr Nagarajan did satisfy us that there had been a breach of Section 4. In case Number 14099 no such breach was established and it is for that reason that case was dismissed."
We have already dealt with the question which is the only question which we see arising under this aspect - whether there can be an unlawful act when there is discrimination by victimisation alone under Section 2 of the 1976 Act and for the reasons given earlier we find that the Industrial Tribunal was right in its view of the law in that paragraph and that therefore the appeal against the decision in Number 14099 stands to be dismissed.
There remains the question to what Tribunal we remit the case under Number 31995 against LRT. That is the surviving issue.
We remit Case Number 31995 as against LRT to the same Tribunal for reconsideration in the light of the judgment given earlier and we discharge the Order that was made.