United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 461_95_1303

Appeal No. EAT/461/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th March 1996

THE HONOURABLE MR JUSTICE HOLLAND

MR R H PHIPPS

MS D WARWICK

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MR S K THOMAS          APPELLANT

LONDON BOROUGH OF HACKNEY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR N W COX

(of Counsel)

Free Representation Unit

1st Floor

49-51 Bedford Road

London WC1R 4LR

For the Respondents MR C WELLS

(of Counsel)

Solicitor to the Council

London Borough of Hackney

298 Mare Street

London E8 1HE


 


MR JUSTICE HOLLAND: This is an appeal from a decision of an Industrial Tribunal sitting at London (North) on 27th February 1995, which decision was sent to the parties by way of extended reasons dated 22nd March 1995. The unanimous decision thereby communicated, was that the applicant, the present appellant, was not the subject of racial discrimination by the respondent, and the applicant was not unfairly dismissed.

We have an appeal from part of that decision. That part is the finding that he was not the subject of racial discrimination by the respondents. We interpose: before the Industrial Tribunal, racial discrimination was alleged in two respects, one relating to an incident and the other relating to the subsequent course of events. For the purposes of this appeal, the appellant has focused purely upon the approach taken by the Industrial Tribunal to the incident itself. Its rejection of so much of his claim as related to his subsequent treatment is not a matter that has been raised before us.

Let us turn then to the relevant facts.

The appellant was, at all material times, an education social worker employed by the respondents. It is material to note that he is a West Indian of Indian descent.

On 11th December 1992, there was an incident at his place of work between him and a fellow employee Mr Mitford O'Dean. Mr Mitford O'Dean is a West Indian of African descent. The incident having taken place, steps were taken to have it investigated. That investigation was initiated by a complaint by Mr O'Dean about the appellant's behaviour. In the result, on 21st December 1992 there was convened a meeting. At the meeting there was present Mr Clem Derrick, Principal Education Social Worker, Mr Jimmy Herbert, Deputy Education Social Worker, Mr O'Dean and the appellant. The racial origins of Mr O'Dean and the appellant have already been mentioned; it is material to note, that both Mr Derrick and Mr Herbert were also West Indians respectively of African descent.

Turning then to the issue. The findings of the Industrial Tribunal as to fact appear from paragraph 4:

"4 At the meeting on 21 December there was present Mr Derrick, the Applicant, Mr O'Dean and Mr Herbert, who was another manager in the department. All of them are West Indian origin although Mr Thomas was of Indian descent and the others of African descent. At the meeting Mr Thomas was asked to explain what had happened on 11 December. He got to the point of making the allegation that Mr O'Dean was swearing at Mr Thomas and throwing the papers over his head when Mr O'Dean got very angry so that Mr Derrick had to tell him to calm down. This happened on a number of occasions and then Mr O'Dean got up and lunged at Mr Thomas's face, started pointing his finger in his face and said "Your are a dirty coolie and no coolie is going to mess with me". Mr O'Dean further said he would get Mr Thomas out of the job. Mr Derrick asked Mr O'Dean to be seated but he then said he did not care about any one and slapped Mr Thomas on the side of the head. He then punched him causing his head to hit a bookcase. Mr Herbert jumped up to try to separate the two and Mr O'Dean then grabbed Mr Thomas by the throat and pushed him back against a notice board which caught him on the spine. Mr Derrick grabbed Mr O'Dean from behind and tried to calm him down and usher him out. As he was taken away Mr O'Dean shouted that it was not finished yet and that he would beat up and kill Mr Thomas."

It is on the basis of that incident that the contention of racial discrimination was partially based before the Industrial Tribunal, and it is with respect to the Industrial Tribunal's findings on that issue that this appeal is mounted.

Turning then to the law. It starts for present purposes with Section 4(2) Race Relations Act 1976 which provides:

" (2) It is unlawful for person, in the case of person employed by him at an establishment in Great Britain, to discriminate against that employee ...

(c) by ... subjecting to any ... detriment."

That statutory provision fixing liability upon employers has to be considered in conjunction with Section 32 which provides in terms which we need not rehearse with precision, that the employers are liable for acts done by employees in the course of their employment. That then brings us to Section 1 which, so far as material, reads:

"(1) 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; ... "

To the Industrial Tribunal and to this tribunal, the appellant's case has been as follows. He contends that on that material occasion this fellow employee treated him on racial grounds less favourably than he would have treated other persons. He contends further that that was conduct in the course of Mr O'Dean's employment, so that pursuant to Section 32 the respondents were responsible therefor. The argument then leads to Section 4(2) and the contention that consequently there was unlawful conduct such as would found the complaint.

In advancing this case, in the course of a helpful skeleton argument, Mr Cox on behalf of the appellant, has drawn attention to De Souza v A.A. [1986] ICR 514, and in particular to a passage on page 522 at which May LJ giving the judgment of the Court of Appeal, said as follows with reference to Section 4:

"Racially to insult a coloured employee is not enough by itself, even if that insult causes him or her distress; before the employee can be said to have been subjected some "other detriment" the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

We interpose: an objective test.

Turning then from the law to the facts. Mr Cox puts the matter essentially this way, that taking the incident as a whole, as indeed it is set out in the passage in the reasons already cited, it was plain on that occasion that Mr O'Dean was treating Mr Thomas on racial grounds less favourably that he would have treated other persons, and having regard to the nature of the conduct of Mr O'Dean in that context, his client as a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. Submits Mr Cox, the finding to the contrary by the Industrial Tribunal is in the circumstances subject to challenge. He would submit that either they have misdirected themselves as to law, or their application of the law to the facts has been perverse, using that word in the sense that is used in this tribunal, that is to say, that it was "Wednesbury" unreasonable.

Mr Wells, who like Mr Cox impressed this tribunal with commendably short, succinct submission, tackles the case in this way. He raises no issue, as indeed no issue was raised below, under Section 32. He simply focuses upon this incident and the findings by the tribunal, submitting that they were correct in the way in which they approached it. That begs the question as to how they did approach the problem, and that emerges from paragraph 18.

"18 ... there is the comment made by Mr O'Dean in which he called Mr Thomas a "coolie". It was not disputed by Mr O'Dean that he had used that expression, but it is clear on the evidence that it was used in the heat of the moment at the time when an assault was about to occur. Whilst we consider that the term is a racial term and is a matter of racial abuse we do not accept that the term used amounts to discrimination under the Race Relations Act 1976. The only grounds under that act which could apply to the use of that term would be that it had subjected Mr Thomas to "any other detriment". In the particular circumstances the words used were not important. What was important was the assault by Mr O'Dean on Mr Thomas. There is no suggestion that that assault itself had any racial motivation in it. On all the evidence Mr Thomas has given us his great worry was of the injury he had suffered and the fact that he might be assaulted again by Mr O'Dean. We do not accept that the use of the word "coolie" in the context in which it was used subjected Mr Thomas to any detriment additional to the detriment he had suffered from the physical abuse which was considerable, but was not on racial grounds."

Submits Mr Wells, first, the tribunal was right in those conclusions. But second, in any event, those are conclusions of fact and it is not for this tribunal to substitute its own view on the facts.

Turning then to the approach of this tribunal, it is as follows. This tribunal has sought to view the incident objectively on the basis of the findings of fact, that is, it has taken the incident to have been that which is embraced in paragraph 4. Viewed objectively, the incident included words said and deeds done. Without splitting the two, one from the other, objectively we have no doubt at all that they show Mr O'Dean treating the appellant less favourably than he would treat other persons, that difference in treatment being attributable to racial grounds. It is only, we note, that if one splits the words from the deeds, then there is any answer at all to the appellant's contentions. Can one split words from deeds? We unhesitatingly find that for that to be done, as indeed was done by the Industrial Tribunal, one has to depart from the objective approach and introduce a subjective element, that is the motivation of Mr O'Dean. We cannot find any basis first of all in law for introducing that subjective element into this analysis, and second, in any event, there was no evidence before the tribunal upon which it could make findings as to the motivation of Mr O'Dean. We observe that he was never called to give evidence to the tribunal and what was, or was not his motivation, was not in evidence before the tribunal.

When we remind ourselves of the objective approach of this part of the law, that approach underlined by May LJ in the passage cited, we take the view that any reasonable tribunal properly directing itself as to law, could only find on basis of the facts set out in paragraph 4 that the appellant, as a reasonable worker, would or might take the view that he had thereby been disadvantaged in the circumstances which he had thereafter to work. Ironically the Industrial Tribunal did advert to this aspect, pointing out in paragraph 18 that the appellant's great worry was of the injury he had suffered and the fact that he might be assaulted again. The fact that he might be assaulted again was because he was of Indian descent. It was that which immediately connected violence to the loss of temper. Thus it is that although we have great respect for the Industrial Tribunal, who had the advantage of hearing such witnesses as were called to deal with this particular matter, we are quite satisfied that this is one of those cases in which we are entitled to take a different view. We take the view that they misdirected themselves as to law, and in particular, they misdirected themselves as to the objective nature of the test, and having done so, then fell into error in seeking to compartmentalise what essentially was one incident and further to do so by reference to Mr O'Dean's motivation.

In those circumstances, we would set aside so much of their finding, that the applicant was not the subject of racial discrimination. We would substitute a finding that he was subject to racial discrimination with respect to that incident of 21st December. That leaves us to direct that the matter must go back to the Industrial Tribunal to make the consequent finding, that is as to the award. To that extent this appeal is allowed.