United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D READE (of Counsel) The Robert Davies Partnership Solicitors Ysguborwen Usk Monmouthshire NP5 1LU
For the Respondent	MR M PANESAR (of Counsel) Ms S Hughes Commission for Racial Equality Alpha Tower (11th Floor) Suffolk Street Queensway Birmingham B1 1TT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a unanimous decision of an Industrial Tribunal held at Cardiff on 20th September 1996. Their decision which runs to 14 paragraphs, was sent to the parties on 24th October 1996. For the purposes of this appeal it is only necessary to recite the facts in the briefest of detail.

The decision of the tribunal was that the applicant, a Mrs Sargent, had suffered unlawful discrimination at the hands of her former employers, Weathersfield Ltd t/a Van & Truck Rentals, and by consent it had been agreed between the parties that if such a finding was made, she should be paid the sum of £5,000 in full and final settlement of all claims arising out of her employment relationship within 21 days of the date of promulgation.

The applicant was only employed for a matter of a day or two. She had responded to an advertisement. The respondent Company was running a car and van rental business. She applied for and was successful in obtaining the job of receptionist and started her work, and was given an induction course by a Mrs Pam Clewer.

During the course of this induction, which included guidelines as to how the applicant should asses individuals and individual classes of people for risk, she said to the applicant that the Company had a special policy regarding coloured and Asians. "We have got to be careful who we hire the vehicles to. If you get a telephone call from any coloured or Asians you can usually tell them by the sound of their voice. You have to tell them that there are no vehicles available." The Industrial Tribunal recorded the reaction of the applicant: they said that she was "stunned". The following day she was interviewed by a director of the respondent Company and asked whether or not "the policy" had been explained to her, to which the senior employee agreed that it had, and added that she, the applicant, had been informed about taking calls from coloureds and Asians.

The applicant remained in work that day but was so upset about the inequity and unfairness of this policy, quite apart from its illegality, that she decided over the weekend that she could not continue in the job, and on the following Monday she, therefore, telephoned the director and told him simply that she could not do the job. She did not explain why it was that she had arrived at that decision, but subsequently did so in a letter of 18th April 1996.

The evidence of Mrs Sargent was accepted without reservation by the Industrial Tribunal. They recorded that they found her a woman of candour, integrity and one in whom they could place confidence. They rejected, where it conflicted, the affidavit evidence of the senior employee and the evidence of the Mr Cavalli.

In paragraph 12 the tribunal said:

"12. Mrs Sargent is white European but nevertheless following case law she is entitled to the protection of s.1(1)(a) of the Race Relations Act 1996. ..."

and they set out that section. They continued:

"We find as follows. First of all, (1) that the applicant was of white European origin; (2) that she was employed by the respondent; (3) that during the course of that employment she was asked to carry out a policy which involved unlawful discrimination against blacks and Asians; (4) that that amounted to instruction which was made by the person in authority; and (5) that as a result of that instruction she felt unable to continue with her work for the respondent and consequently resigned."

And then in the following paragraph they said this:

"13. On the above facts we find that the applicant has been the subject of unlawful discrimination and has suffered a detriment in her work. The burden of proving the discrimination is one which the applicant has discharged."

It would be appropriate at this stage of the judgment to set out the law, both statute and case law. S.1(1)(a) of the Race Relations Act 1976 provides as follows:

"(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; ..."

This provision defines direct discrimination as opposed to indirect discrimination.

S.4(2)(c), which falls within Part II of the Act under heading "DISCRIMINATION IN THE EMPLOYMENT FIELD" and "Discrimination by employers" provides as follows:

"(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-

...

(c) by dismissing him, or subjecting him to any other detriment."

S.30 of the Act provides in Part IV of the Act, under the rubric "OTHER UNLAWFUL ACTS":

"It is unlawful for a person-

(a) who has authority over another person; or

(b) in accordance with those wishes that other person is accustomed to act,

to instruct him to do any act which is unlawful by virtue of Part II or III, or procure of attempt to procure the doing by him of any such act."

It is to be observed, en passant, that a breach of s.30 is not a matter which falls within the jurisdiction of the Industrial Tribunal at the behest of an individual complainant.

In a case which came before the Employment Appeal Tribunal called Showboat Entertainment Centre Ltd -v- Owens [1984] ICR 65 the applicant, a white man and manager of an entertainment centre operated by the employers, was dismissed for refusing to obey an instruction to exclude all black customers from the centre. He presented a complaint to an Industrial Tribunal alleging that he had been unlawfully discriminated against within the meaning of ss. (1)(a) and 4(2)(c) of the Act.

The argument which was presented to the Court by distinguished Counsel may be summarised in this way, and I take it from page 69D of the report, as recited in the judgment:

"... 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 that 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 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."

The Employment Appeal Tribunal considered that the proper interpretation of the words in the statute was not easy. They reached this conclusion at page 70C:

"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 giving of the instruction itself is creating another unlawful act, namely, the mere giving of the instruction."

And at page 71, after further careful and compelling analysis of the various arguments presented to them, the Employment Appeal Tribunal, presided over by Browne-Wilkinson J., as he then was, concluded as follows at 71H:

"... section 1(1)(a) covers all cases of discrimination on racial grounds when 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."

Then at page 73D they dealt with a further argument which was addressed to them:

"Finally, we must deal with Mr Harvey's submission that, in deciding whether or not the employers discriminated against the applicant, one has to compare how the employers treated the applicant with the way in which they 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 the applicant and another manager who did not refuse to obey the unlawful racialist instructions."

The other authority to which reference was made by Mr Reade on behalf of the appellant, to whom we are grateful for an interesting argument, is the case of De Souza v Automobile Association [1986] ICR 514, a decision of the Court of Appeal which considered the question as to the proper meaning of the word "detriment" in s.4(2)(c) of the Act. There the Court said this at page 522F-H:

"... Apart from the actual decisions in these cases, I think that this necessarily follows upon a proper construction of section 4, and in particular section 4(2)(c) of the Act. Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress; before the employee can be said to have been subjected to some "other detriment" the court of 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."

Mr Reade uses that decision as authority for propositions to which I shall be returning in a moment.

Again by way of background, before turning to the arguments in this case, it is appropriate that we say that it is our view that the decision of the Industrial Tribunal adequately and sufficiently set out the reasoning which led to their conclusion. It seems to us reasonably clear that they had concluded that Mrs Sargent was entitled, as she did, to walk away from her employment by reason of the unlawful instruction having been imposed upon her. We take the view that the finding in sub-paragraph (5) of paragraph 12 "that as a result of that instruction she felt unable to continue with her work ... and consequently resigned" was a finding of constructive dismissal. It seems to us plain that that was what they must have had in mind, particularly as that paragraph is prefaced by a reference to case law, by which we assume them to be referring to the decision in the Showboat case to which we have referred.

We take the view that their reference to "detriment" is no more than them saying that even if there had not been a constructive dismissal, they were of the view that subjecting Mrs Sargent to an unlawful instruction amounted to subjecting her to a detriment within the meaning of that phrase as set out in the De Souza case.

Therefore, it seems to us, we must approach this case on the basis that the Industrial Tribunal have decided that Mrs Sargent was constructively dismissed as a result of the imposition upon her of this unlawful instruction.

Mr Reade contends that the tribunal have erred in their approach to the question under the Race Relations Act 1976. He says that the applicant is a white European and the tribunal properly directed itself that the Act applied equally to the applicant as it would to a member of a different racial group. Equally it is clear, he submitted, in principle, that "A" can discriminate against "B" on the grounds of "C"'s race, and he, quite properly, referred to the judgment of Browne-Wilkinson J. in the Showboat case. But he submits that the tribunal entirely failed to direct itself as to whether her case could be compared with somebody else. They failed to directly to consider this issue, and made no finding of fact that the applicant had been treated or would have been treated differently from another person who did not have the same attitude to race. He submitted that there was no evidence before the tribunal of the employer's response to the applicant's objection to the instruction, because the applicant never complained about the policy, but decided that she simply did not wish to work for the appellant. Therefore, he submitted, even if the tribunal had applied the test properly, there was no evidence on which it could have concluded that the applicant had been treated differently. He went on to submit that there was no evidence that the applicant had been treated less favourably than any comparator, and no finding of fact to that effect. They made no finding that the employee would have been dismissed or suffered any detriment had she communicated her refusal to operate the policy which the tribunal found that she had been asked to carry out. He said that the only treatment meted out by the employer was the imposition of an unlawful instruction. That was not differential treatment as between employees. Thereafter, an employee, namely the applicant, reacted differently from others, but that "differential reaction" is to be distinguished from "differential treatment".

It is to be noted in this context, that Mr Reade accepts, quite rightly, that although dismissal is not defined in the Race Relations Act 1976, s.4(2)(c) is apt to cover a constructive dismissal case where the facts appropriately warrant such as finding.

He secondly submitted that the tribunal made no finding of fact justifying the conclusion that the applicant had suffered a detriment. There was nothing to show that, having been told that she was to operate a policy, she would thereby be disadvantaged in her work in the manner which would give rise to a detriment for the purposes of the Act, and he relied upon the De Souza decision. In effect, he was saying and does say, that she was not disadvantaged by her employer.

In response to those submissions, Mr Panesar, to whom we are also grateful, says that, effectively, the submission contended for by Mr Reade makes a nonsense of the working of the Act. He submits that you start with s.4 to identify whether there is an activity or action which falls within s.4, and if the tribunal has concluded that an employee has suffered a detriment or been dismissed, then, and only then, do you turn to the definition section contained in s.1 to identify whether the treatment which you have concluded falls within s.4 was treatment differentially accorded to employees on racial grounds. Therefore, he submits, that the fallacy in Mr Reade's argument is to look for differential treatment by starting with s.1 rather than by starting with s.4 and identifying the action complained of.

He further submits to us that dismissal within s.4(2)(c) plainly includes constructive dismissal, and that the employee in this case was put into an almost impossible position as a result of the unlawful instruction. As he put it, she had two options only available to her: either to accept the racially discriminatory instruction; or to reject it. If she had elected to continue with it, and to accept it, then there would have been no proceedings. If she decided to reject it, then either she was going to be dismissed, or she might have been required to continue in her employment in knowing breach of the implied term of trust and confidence, which is a fundamental term of the contract of employment. He submits to us that discrimination in the form of a compulsion or requirement to carry out an unlawful racially discriminatory practice, occupies what he would say was a peculiar or special position, in that it is very dissimilar to the more common racially discriminatory practices in which the differential treatment itself is rather more tangible than on the facts of this case.

It seems to us, at the end of the day, that the argument put forward by Mr Panesar are broadly speaking correct, We, ourselves, are of the view that the tribunal should start with the activities which have formed the subject matter of the complaint which fall, or allegedly fall, within s.4. S.1 is a definition section which will only arise assuming that an activity has been identified falling within s.4.

It seems to us that the point being made by Mr Reade is not only without merit on the facts, but is also without merit in legal terms. His argument is that the treatment in this case is imposing an unlawful condition which is regarded by the complainant as putting her in an intolerable position, as compared with an actual or hypothetical comparator, who was prepared to accept that instruction. It seems to us that therefore although in one sense the employers have simply done a single act, in another sense it is in an act which affects employees differentially, so that some, but not all, regard themselves as the victims of mistreatment. Therefore it is not just the act to which attention is drawn, but the differential impact that a single act may have upon different employees. Without being over-complicated about it in this case, the actual or hypothetical comparator to be used under s.1, was somebody who was prepared to go along with the employer's unlawful instruction.

In those circumstances, it is not difficult, as it seems to us, to say that Mrs Sargent has been unfavourably treated by comparison with such another person, because she, unlike the comparator, did not regard herself as being able to continue to work with an employer who operated such a policy, and who did regard herself as being put into an intolerable position as an employee. Accordingly, therefore, she regarded herself as a victim of the treatment meted out to her by the employers. In that sense, it seems to us, there is no difficulty in concluding that she readily fell within the ambit of s.4(2)(c), and that she had been the victim of less-favourable treatment by the employer in putting her into an intolerable position in her employment relationship.

Accordingly, we are of the unanimous view, that the decision of the Industrial Tribunal was correct. It goes without saying that in his argument, Mr Reade has not sought to diminish the seriousness with which this Court will view conduct of the sort found to have been proved against the employers in this case. It must be made quite clear to employers that policies of this sort are intolerable.

Mr Reade, as I say, put his arguments in a most attractive way. We are grateful to him for them, and he never went too far in the course of his presentation. The appeal will be dismissed.