United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN WHITMORE (of Counsel) Mr M Javaid Principal Legal Officer Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH
For the Respondents	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENTS


 


JUDGE PETER CLARK: This is an appeal by Mr Lawal, the Applicant before the Leeds Industrial Tribunal sitting on 25 March 1996, against that Tribunal's decision to dismiss his complaint of unlawful racial discrimination, against his employer, Regional Railways North Eastern Limited, the Respondent. Extended Reasons for that decision are dated 15 April 1996.

Evidence before the Tribunal came solely from the Appellant. We take the primary facts from the Tribunal's findings in paragraph 5 of their reasons.

"5. ... The applicant [the Appellant] had been employed from 1977 as a Conductor by the respondent, and its predecessors. In 1978 he had been transferred to the Sheffield Depot and had worked there since then. On the 19 September 1995, just before the applicant went home from work, an incident happened in the Mess Room in the Sheffield depot. A train driver, Mr R Swindon, asked the applicant to show him the colour of his palm. The applicant did as he asked. Mr Swindon then went on to ask the applicant to take off his shoes and socks so that he could see the colour of the soles of his feet. Mr Swindon also said to the applicant 'You will see that I am a racist'. He also referred to Enoch Powell as being his best friend. Another driver, Mr M Woodland, was sitting close by when the conversation took place and the applicant considered that he must have heard what had happened. The applicant lodged a formal complaint to the respondent on the 20 September 1995. The applicant was interviewed by Mr D Johnson, the Trains Manager, on the 18 October about the incident and eventually on the 23 January 1996 Mr Johnson, accompanied by Mr P Owen, Driver Manager, indicated to the applicant what was the outcome of the investigation. Mr Swindon had agreed that he had made the comment but there was no malicious intent and that he had considered it to be mere banter and that similar banter had gone on between himself and the applicant for a number of years. Between the time of the complaint and the 23 January 1996 the respondent had carried out an investigation into the incident. Mr Swindon had been interviewed by Mr Owen on the 8 January 1996 and Mr Woodland had been interviewed by Mr Owen on the 8 January 1996. A decision was made by Mr Owen and a letter sent to Mr Swindon which included a statement that Mr Owen believed that Mr Swindon had not been malicious and that his remarks had not been intentionally or consciously racist. However, his remarks had given offence. This was obviously unacceptable. Mr Swindon was told that he must in no way repeat the remarks or further discipline could be initiated."

On 6 December 1995 the Appellant presented his Originating Application to the Industrial Tribunal. He complained of racial harassment at work in that he received offensive racist language from a work colleague; that is the incident involving Mr Swindon on 19 September 1995. At the time of the Originating Application being presented Mr Johnson had not completed his investigation into the Appellant's complaint over that incident. By the time the matter came before the Tribunal, we see from paragraph 6 of the reasons, the Appellant further complained that there had been a delay in carrying out that investigation; that the Respondent had not taken his complaint seriously enough; that no formal disciplinary proceedings had been taken against Mr Swindon; and that the Respondent had not complied with their Equal Opportunities Policy.

Before the Tribunal the Appellant appeared in person and the Respondent was represented by Counsel, Mr Hampton. We see from the Chairman's notes of evidence that after the Appellant had given evidence-in-chief and had been cross-examined, Mr Hampton indicated that he did not feel it appropriate to produce witnesses; he intended to make submissions and invited the Tribunal to reach its decision having heard those submissions.

His first submission, foreshadowed in the Respondent's Notice of Appearance, was that the Respondent was not responsible for the acts of driver Swindon under section 32(1) of the Race Relations Act 1976; he was not authorised by the Respondent to say what he did to the Appellant and what he said was in no way connected with the performance of his duties. Counsel relied upon the Court of Appeal decision in Irving v The Post Office [1987] IRLR 289 and the majority EAT decision in Tower Boot Co Ltd v Jones [1995] IRLR 529.

Secondly, he submitted that the Appellant had failed to show that he had suffered a detriment within the meaning of section 4(2)(c) of the Act. Racial insults do not necessarily amount to a detriment - De Souza v Automobile Association [1986] ICR 514.

Thirdly, he relied upon the statutory defence contained in section 32(3) of the Act, that the Respondent had taken all reasonably practicable steps to prevent their employees for doing the acts complained of.

Fourthly, he submitted that the Respondent had carried out a proper investigation into driver Swindon's behaviour, and had taken appropriate action by giving him a warning about his conduct.

The Industrial Tribunal Decision

Put shortly, the Tribunal accepted each of the Respondent's submissions. It found:

(1) that the acts complained of by driver Swindon were not done during the course of his employment, relying on Irving and the EAT decision in Tower Boot. If Swindon had made his remarks whilst driving a train on which the Appellant was the conductor he would have been acting in the course of his employment; because he did so in the Mess Room he was not, so the Tribunal found.

(2) As to the investigation, the Respondent had satisfied the statutory defence under section 32(3). It had taken such steps as were reasonably practicable to prevent Swindon from doing the acts complained of in the course of his employment. The Respondent had an Equal Opportunities policy and managers knew about such policies and took them seriously. The investigation was a thorough one and the consequent decision a genuine one.

The Appeal

Today the Appellant is represented by Mr John Whitmore of Counsel. The Respondent's Solicitors have indicated that they do not wish to make further representations and have not arranged for attendance at this appeal hearing.

By their Answer the Respondent concedes that the Industrial Tribunal applied the wrong test as to whether driver Swindon was acting in the course of his employment in the light of the subsequent Court of Appeal decision in Jones v Tower Boot Co Ltd [1997] ICR 254, overruling the majority EAT decision in that case. However, it is submitted that even applying the Tower Boot test Swindon was not acting in the course of his employment in making the remarks which he did to the Appellant in the Mess Room; further, the Tribunal's finding that the Respondent had established the section 32(3) defence was a finding of fact which it could reasonably make on the evidence, and that finding ought not to be interfered with on appeal.

The Submissions

Mr Whitmore submits:

(1) that the Tribunal fell into error by applying the common law of vicarious liability when construing section 32(1) of the Act, instead of deciding as a question of fact on the ordinary meaning of the words whether the acts complained of were done in the course of Swindon's employment. Tower Boot, CA, approving the approach of the EAT in Burton v De Vere Hotels Ltd [1997] ICR 1, a case involving a non-employee of the Respondent.

(2) Section 32(3) of the Act places the onus on the employer to establish the reasonable practicability defence. The Respondent called no evidence in this case. No advance notice of the contention was given to the Appellant, who appeared in person. In these circumstances there was no evidence to support the Tribunal's findings:

(a) that managers knew about the Respondent's Equal Opportunities Policies and took them seriously, and

(b) that the investigation was a thorough one and the consequent decision was a genuine one and

(c) that the Respondent had taken all reasonably practicable steps to prevent Swindon from acting as he did.

(3) It will only be in the rarest cases that an Industrial Tribunal will decide a discrimination case after hearing only evidence from the Applicant's side, Oxford v DHSS [1977] ICR 884. That principle applies to the ordinary case where the onus of proving discrimination lies on the Applicant. It applies with even greater force where the Respondent is relying on the statutory defence under section 32(3), a defence which he must prove.

Conclusion

In our judgment the submissions made by Mr Whitmore are correct. On those grounds we shall allow the appeal. The question then arises as to what course we should take. In his skeleton argument, served on the Respondent on 8 April, Mr Whitmore asked that the case be remitted for rehearing by a fresh Industrial Tribunal. This morning he advanced a bolder submission, that we should resolve the matter ourselves under our powers contained in section 35 of the Industrial Tribunals Act 1996. We have been tempted by that course, but have refrained from so doing on the basis that the Respondent may have been deprived of the opportunity to make representations as to that course in the light of the remedy sought in the Appellant's skeleton argument, which was before them when they decided not to attend the hearing. In these circumstances we shall remit the matter to a different Industrial Tribunal for rehearing. In determining the matter afresh the new Industrial Tribunal may wish to consider the following questions:

(1) Was the Appellant treated less favourably by driver Swindon on racial grounds than he would treat other persons?

(2) If so, did the Appellant suffer a detriment as a result of such discriminatory treatment?

(3) If so, was Swindon acting in the course of his employment when he so treated the Appellant? In answering that question the Tribunal should follow the guidance laid down by the Court of Appeal in Tower Boot.

(4) Did the Respondent fail to properly carry out an investigation into the Appellant's complaint about his treatment by Swindon; and if so, does that finding give rise to an inference of unlawful discrimination on the part of the Respondent, and did the Appellant suffer a detriment or further detriment thereby?

(5) If so, on the evidence before the Tribunal, has the Respondent proved that it took all reasonably practicable steps:

(a) to prevent Swindon from acting as he did, and

(b) to ensure that managers properly investigated the Appellant's complaint of racial discrimination by Swindon?

(6) If the Tribunal finds that either or both of the Appellant's complaints of unlawful discrimination are made out, it should then proceed to consider the question of remedies, having seen and heard the Appellant as to any injury to his feelings.