United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B WILTSHIRE (of Counsel) Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH
For the Respondents	MR S CHEVES (of Counsel) Machins Victoria Street Luton LU1 2BS


 


MR JUSTICE CHARLES: The parties to this appeal are Mr Sidhu (the Applicant and Appellant) and Aerospace Composite Technology Ltd (the Respondent). Mr Sidhu appeals against part of the order made by the Industrial Tribunal following a five-day hearing ending on 6 February 1998. The Tribunal reserved their decision and it, and the reasons for it, are dated 12 March 1998.

By unanimous decision the Tribunal dismissed Mr Sidhu's purported application under sections 44 and 100 of the Employment Rights Act 1996 but found that he had been unfairly dismissed on 6 September 1996.

By a majority decision the Tribunal dismissed Mr Sidhu's allegation of discrimination under the Race Relations Act 1996. That was an allegation of direct racial discrimination under section 1 (i) (a).

It is against that majority decision that Mr Sidhu appeals.

Background

This is set out in the Tribunal's Extended Reasons. We shall deal with it briefly in numbered paragraphs:

(1) For six consecutive years the Respondent's practice had been to organise a family day out. Mr Sidhu and his family had attended all such events without incident.

(2) Such a day out was held at Thorpe Park on 4 August 1996 and was attended by Mr Sidhu, his wife and children. A new employee, a Mr Kevin Smith (Mr Smith), also attended with his girl friend, her father, two friends and some children.

(3) A fracas developed. The Tribunal found that both Mr and Mrs Sidhu were subjected to violence and to racial insults. In particular Mr Sidhu was set upon by three white men including Mr Smith resulting in him having a cut head and broken glasses. The Tribunal found that they had no doubt that the Sidhus were subjected to a racial attack.

(4) It was correctly accepted before us that Mr Smith was the initial aggressor.

(5) Mr Sidhu did pick up a plastic chair. He said he did so in self-defence but some witnesses said he had wielded it in an aggressive manner. However, at no time did Mr Sidhu make physical contact with anyone whilst holding the chair.

(6) On the following Monday morning (5 August) the Respondent's Chief Executive Mr Barrington took legal advice as to whether it was proper for the Respondent to investigate an event which had taken place out of normal working hours. He was satisfied that the Respondent could do so and the Personnel Department was directed to investigate in the normal way the fracas that had taken place at Thorpe Park.

(7) Following complaints from the Unions about the Respondent's previously inconsistent methods of dealing with complaints of violence, a disciplinary code had been issued that made it clear that conduct such as "violence against a fellow-employee" and "violent or abusive language" amounted to gross misconduct which could lead to summary dismissal "or a lesser penalty as appropriate". Paragraph 4.2.2 of the Procedure provided for suspension for two working days pending investigation. It was the normal practice in the case of a fight for both parties to be suspended until the investigation had taken place.

(8) Mr Sidhu was on night shift on Monday 5 August. During that afternoon to his astonishment he was suspended for two weeks on full pay to enable an investigation to be carried out. The same was to happen, and did happen, to Mr Smith.

(9) In his statement made in respect of the Respondent's investigation dated 13 August Mr Sidhu said: "I feel my family were racially abused".

(10) Two disciplinary hearings took place on Monday 19 August. Mr Sidhu was seen again with his representative on Wednesday 21 August.

(11) The Committee of the Respondents who conducted the disciplinary hearings concluded that there was sufficient evidence to satisfy them that both Mr Sidhu and Mr Smith had been guilty of violent behaviour towards a fellow-employee and of using foul and abusive language. In the case of Mr Sidhu, they considered that notwithstanding his previous good service he should be summarily dismissed as was Mr Smith.

(12) Mr Sidhu appealed this decision, so did Mr Smith. Both appeals were heard by an Appeal Committee and the appeal hearing commenced on 29 August. Again, both Mr Smith and Mr Sidhu were given the opportunity to state their case.

(13) The Appeal Committee had little difficulty in its decision to reject Mr Smith's appeal. They were satisfied that the allegations of violence and abusive language had been proven.

(14) As regards Mr Sidhu, the Appeal Committee were satisfied that Mr Sidhu had used the chair in a threatening manner. But they did not think that this amounted to "violent behaviour" because there was no evidence that the chair made physical contact with anybody.

(15) The Tribunal found that it was clear that at this stage of the appeal the three Appeal Committee members had reached a decision, albeit for different reasons. Two of them had felt that the case of violence had not been made out and that on that basis alone Mr Sidhu should not be dismissed. However, the third who was the Chairman, took the view that the determining factors were Mr Sidhu's long service and the fact that he had clearly been provoked.

(16) The members of the Appeal Committee then saw Mr Barrington in his office. The Tribunal find that Mr Barrington expressed surprise as to their position in such a way that the Appeal Committee members would have felt disapproval.

(17) The Appeal Committee then, on Mr Barrington's authority, met the Company Solicitor who gave the appropriate advice that they should not take too legalistic an approach, but should ascribe to the word "violence" the meaning they felt appropriate.

(18) The meeting with Mr Barrington had taken place on Friday 30 August. On Monday 2 September the Appeal Committee reconvened and interviewed further witnesses. The Appeal Committee did not tell Mr Sidhu or his representative that they had interviewed new witnesses. It did not occur to any of them that they should do so.

(19) The Appeal Committee record in their findings that their view of the facts had not changed after seeing further witnesses. However, two of them both felt that their view on the penalty should be changed because of the advice given by the Company Solicitor that simply holding the chair "in an aggressive manner" was sufficient to amount to violence and they therefore changed their position to uphold the finding of the initial disciplinary committee that Mr Sidhu should be dismissed. However, the Chairman of the Appeal Committee stuck to his position that Mr Sidhu should not be dismissed. As a result the Appeal Committee found by a majority that Mr Sidhu's dismissal should be upheld.

As we have already mentioned, the Tribunal had no doubt that the Sidhus were the subject of a racial attack. It is also clear that Mr Sidhu made this point to the two Committees that investigated the matter on behalf of the Respondents. The Tribunal found that the Respondent's witnesses before them insisted in their evidence that what the Respondents were investigating was an "attack" rather than a "racial attack". Before us, in our judgment correctly, Counsel for the Respondents accepted that the Respondents were aware that the verbal abuse and physical attack on Mr Sidhu and his family were racially motivated. For example, this appears from paragraph 28 of the Extended Reasons.

The Argument before the Tribunal

These are recorded in paragraph 10 to 12 of the Extended Reasons which are in the following terms:

"10. Mr Sidhu's central complaint was of race discrimination. Mr Wiltshire relied upon the instances set out by Mr Clay in the note attached to his letter of the 23 May 1997. The company was vicariously liable for the racial attack on Mr Sidhu at Thorpe Park on the 4 August 1996. The company had then gone on to investigate the incident in a racially discriminatory manner. They had perversely chosen to adopt only that evidence which supported the Disciplinary Committee's initial view that Mr Sidhu had been guilty of violence. The company had no proper equal opportunities policies which would have enabled the Disciplinary Committee to have investigated the allegations of racial violence in an appropriate way. The Appeal Hearing was equally biased, and it was fatally flawed, by the interference of Mr Barrington. Mr Clay, in his summary, spelt out that at both the initial Disciplinary Hearing and later at the Appeal Hearing, 'Mr Sidhu was required to do more ... than a person in his position belonging to the same racial group as the investigating committee appointees would have had to do in order to convince the latter that his actions did not amount to misconduct'.

11. It was also argued on behalf of Mr Sidhu, that although the initial event on the 4th August had occurred more than three months before the date on which his application was presented, the events on that and subsequent occasions, leading up to the dismissal in early September were all part of a series of continuing acts. In any event it would be "just and equitable" for these incidents to be considered by the Tribunal as they were all part and parcel of the same story that had led eventually to Mr Sidhu's dismissal.

12. It was the respondents position, that the question of race had never entered into the matter or into their dealings with the investigation. On the basis of Waters v The Metropolitan Police Commissioner, it was not accepted in any event that the company had any vicarious liability for what had happened on the 4th August."

Liability under Section 32 -Course of Employment

Section 32 of the Race Relations Act provides, inter alia as follows:

"32(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) ...

(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

The majority of the Tribunal concluded that the events of 4 August did not take place during the course of the employment of Mr Smith or Mr Sidhu. Their reasoning is contained in paragraphs 13 to 16 of the Extended Reasons which are in the following terms:

"13. In Jones v Tower Boot Co Ltd, the Employment Appeal Tribunal had taken a very narrow view of what was meant by 'the course of his employment' in section 32(1) Race Relations Act 1976. This narrow view had been corrected by the Court of Appeal ([1997] IRLR 168) when they had made clear that a narrow interpretation of that phrase was not appropriate in applying an anti discriminatory statute. However, in Waters v Commissioner of Police of the Metropolis [1997] IRLR 589, the Court of Appeal dealt with a complaint by a policewoman, that her employer (the Commissioner) had victimised her because of her complaint about an assault by a male police constable. It was found that that assault could not be a protected act, because it took place when both parties were off duty, was not committed at the place of employment, and was a deliberate unauthorised and unlawful act.

14. If the events on the 4th August were outside the scope of Mr Sidhu's employment, then the respondents could not be vicariously liable for them, however unpleasant those acts might have been. It follows, equally, that if those events were within the course of Mr Sidhu's employment, the respondents are potentially vicariously liable, if the Tribunal is satisfied that that act, even though occurring more than three months from the date of presentation from the application, was either part of a series of continuing acts which culminated in an act which was in time, or that it was 'just and equitable' so to extend the jurisdiction.

15. The Tribunal have not been able to come to a unanimous decision, either on the question of jurisdiction or on the overall question of the allegations of discrimination.

16. As to jurisdiction, the majority view is that the events on the 4th August were outside the scope of Mr Sidhu's employment. The events took place at a public Theme Park. Despite the fact that it had been the employers who had organised the event and invited the participants, everyone was there in their own time, and it seems likely that the majority of the participants were friends and family rather than employees. Accordingly the majority find that these events were not in the course of Mr Sidhu's employment: but that finding does not inhibit the respondents from proceeding to discipline either Mr Smith or Mr Sidhu in respect of those events, because of their obvious connection with the employment."

It can be seen from the above quotation from the Extended Reasons that in both paragraphs 14 and 16 the majority of the Tribunal used the non-statutory expression "scope of Mr Sidhu's employment". It was argued on behalf of the Respondents that, having set out the statutory words correctly in paragraph 13 and then referred to the two relevant cases in that paragraph, the use of the phrase "scope of his employment" by the majority should be treated as a synonym for "course of his employment", or a slack use of language. It was further submitted on behalf of the Respondents that on a fair reading of the Extended Reasons the majority of the Tribunal should be taken as applying their minds throughout to the statutory test, and thus to the phrase in section 32(1) "course of his employment" in the manner explained in Jones v Tower Boot Co Ltd [1997] IRLR 168 (see especially paragraph 43 at page 172).

We do not agree. In our view the two phrases "scope of his employment" and "course of his employment" do not, as a matter of ordinary language and usage mean the same thing, or cover the same concepts, albeit that we accept that there is a considerable overlap between the matters that the two phrases do cover.

In our judgment the use of the phrase "scope of Mr Sidhu's employment" in paragraphs 14 and 16 either (a) demonstrates that the majority did not apply the correct statutory test and approach, or (b) leads to the conclusion that in applying the Act the Tribunal asked themselves an inaccurate and inappropriate question or that their reasoning is inadequate by reference to the standard identified in Meek v City of Birmingham District Council [1987] IRLR 250 at 251 and High Table Ltd v Horst [ 1997] IRLR 513 at 518.

In our judgment further support for this conclusion comes from the summary of the decision in Waters v The Metropolitan Police Commissioner [1997] IRLR 589, in paragraph 13 of the Extended Reasons. This summary would probably have been taken from paragraphs 81 and 82 of the judgment of Waite LJ, where he says that the circumstances in that case placed the two people involved in the alleged sexual assault: "in no different position from that which would have applied if they had been social acquaintances only, with no working connection at all." This important factor is not mentioned by the majority in their summary of the reasoning in the Waters case.

The Section 32 (3) Defence

This was raised in argument before us but was not dealt with in the Extended Reasons of the Tribunal. In our judgment we cannot deal with this defence and comment that, in our view, Counsel for the Respondents was right not to press the point that we could.

Conclusion on the Section 32 Points

Although the Extended Reasons contain a helpful and full summary of the findings of fact as to the day out at Thorpe Park, we have concluded that we should not determine whether the fracas, abuse and assault that took place on that occasion were, or were not, within Section 32(1). We have concluded that we would be at a disadvantage in doing so without having heard the witnesses and that we cannot say that a Tribunal applying the correct test would inevitably reach a particular conclusion on this point.

We therfore set aside the decision that the events of 4 August did not take place during the course of the employment of Mr Sidhu and Mr Smith and remit all the section 32 points to a different Tribunal to that which heard the case before. If in the light of the remainder of this judgment Mr Sidhu does not want to pursue this part of his claim he should notify the Respondents of that decision.

We note that the majority found that it would be "just and equitable" in all the circumstances to extend time to enable the Tribunal to deal with a complaint based upon the events that took place on 4 August. We agree with that conclusion.

The Conclusion of the majority to dismiss the allegation of Racial Discrimination

It appears from paragraph 86 of the judgment of Waite LJ in Waters v Commissioner of Police [1997] IRLR 589 that if in this case the incident at Thorpe Park was not in the course of employment within Section 32 it is not within Section 2(1)(d) of the Race Relations Act 1976. In any event we were told that an allegation of victimisation under Section 2 was not advanced before the Tribunal. Further, as we read the reasoning of the majority of the Tribunal, they did not take that incident itself into account in concluding that the allegation of racial discrimination failed, and this follows from their conclusion that it was not within Section 32(1) of the Act.

The argument before the Tribunal, and the reasoning of the majority, on this aspect of the case relates to the manner in which the investigations of the incident on 4 August, and the decision to dismiss Mr Sidhu, were carried out and taken. The most relevant part of the Extended Reasons of the majority are paragraphs 17, 18, 19, 20, 23, 26, 27 and 28. We set these out:

"17. King v Great Britain China Centre [1991] IRLR 513 is authority for the proposition that a Tribunal may well draw inferences where an employer has committed a discriminatory act, when there is a clear case of detriment and of a difference in race, and no satisfactory explanation has been offered by the employer. Nonetheless, in reinforcing that authority, The House of Lords in Strathclyde Regional Council v Zafar [1998] IRLR 36 spelt out that the Tribunal was not bound to draw such an inference. Unfair conduct by the employer was not of itself necessarily discriminatory conduct. Similarly, in The Fire Brigades Union v Fraser [1997] IRLR 671, it is pointed out that even in circumstances redolent of discrimination, it is necessary to establish the nexus between the detrimental conduct and the causative element of sex or race discrimination.

18. It is clear that this case is redolent of race discrimination. Mr Cheves accepted that the events on the 4th August were disgraceful. But the majority of the Tribunal has not found it possible to identify evidence that the respondents were themselves acting in a discriminatory manner during the investigatory disciplinary and appeal processes. Whilst individual members of the Tribunal may not themselves have come to the conclusions which the Disciplinary or Appeal Committees reached, this fact alone is not sufficient to enable the Tribunal to draw an inference of discrimination. Despite the Tribunal's unanimous finding that the dismissal of Mr Sidhu was unfair (paragraphs 23-27), the majority do not find any evidence of racial discrimination in the acts which led to that unfairness. The majority find that the respondents set out to judge both Mr Smith and Mr Sidhu separately, against the test of gross misconduct. The fact that both were dismissed does not suggest discrimination, but simply that the respondents found in each case that there had been gross misconduct. The severity of the respondents decision was (the majority find) based not on race, but on Mr Barrington's policy that the respondents would deal firmly and consistently with any violence or abusive language. As indicated at paragraph 8(j), this policy had been established some years previously as a result of complaints by the union that members of management were inconsistent in the way that they dealt with such matters. It was clear from the evidence that Mr Barrington was determined that the company should pursue a policy which was fair and consistent.

19. The majority recognise that the respondents did not have a pro-active system for investigating complaints of racial abuse. The respondents did not appear to be empathetic to the issue of racial provocation. The respondents witnesses insisted in their evidence that what they were investigating was an 'attack' rather than a 'racial attack'. Nonetheless, as Mr Cheves pointed out, the effect of the respondents actions was that they did in fact investigate Mr Sidhu's complaints against Mr Smith. And they acted upon their finding by dismissing Mr Smith.

20. Accordingly, the majority of the Tribunal dismiss the allegation of racial discrimination.

23. Despite the Tribunal's disagreement on the discrimination issue, as indicated above the Tribunal are unanimous in their views on unfair dismissal.

26. But for the Tribunal, the central issue which flaws the findings of both the Disciplinary Committee and the Appeal Committee, is that neither - with the honourable exception of Mr Chiappe - took sufficient account of the strong mitigating factors of Mr Sidhu's long service and the fact that he had been the victim of a racial attack. The Tribunal believe that this is not simply a question of an employer coming to a decision at the extreme end of the band of reasonableness. We are satisfied that this is a decision that no reasonable employer should have reached. We are reinforced in that view, by the evidence given of the treatment of Mr McCulloch less than two years earlier. Mr McCulloch had been found to have struck a colleague, but nonetheless following an appeal, the dismissal was replaced by a four week suspension after the panel had taken into account his 'service with the company and good working record'.

27. The Tribunal are therefore unanimously of the view that the dismissal was unfair both by reason of the flawed appeal, and the respondents unreasonable failure to take adequate account of both Mr Sidhu's long service and the extent of the provocation which he had suffered.

28. The minority member would in addition find that the dismissal was unfair because it had been conducted in a racially discriminatory manner. However, the majority do not find that there is sufficient evidence to justify a finding of racial discrimination. Whilst it is true that both the Disciplinary Panel and the Appeal Panel concentrated on the issues of abuse and violence rather than the racial nature of that conduct, the effect of their investigation (as Mr Cheves pointed out) was to identify the serious nature of Mr Smith's conduct (and in particular the racial abuse) and to impose upon him the ultimate sanction of dismissal. The majority find that the reason for the Disciplinary Panel and the Appeal Panel consistently failing to take any special account of the racial aspects of the matter in Mr Sidhu's favour, was not any conscious or unconscious attempt to discriminate, but due to the very firm view of Mr Barrington that the company should maintain a consistent policy in dealing with acts of violence (as set out in the findings of the majority at paragraph 18 above)."

The minority in the Tribunal made the following points in paragraph 22 (6), (7) and (12) of the Extended Reasons:

"(6) Mr Sidhu suffered serious and unprovoked racial abuse and assaults by Mr Smith. This was clearly acknowledged and accepted by the employers and specifically by the Disciplinary and Appeal's Panel. Mr Sidhu had made this quite clear to Ms Jane McKie Personnel Officer on 5th August. Mr Sidhu complained specifically to personnel about the unprovoked racial assaults, abuse and racially motivated physical attacks by Mr Smith a fellow employee and two of his friends. Yet this formal complaint was never recorded and addressed according to the rules supported by the employer.

(7) Failure by the employer to acknowledge, investigate and address the issues directly associated with racial abuse and racially motivated physical assaults in my view constituted racial discrimination and considerable determent to Mr Sidhu.

(12) The employer failed to provide any reasonable answer as to why they deliberately set out to exclude any consideration on racial discrimination. In the absence of any explanation other than 'we did not consider any racial elements in this matter' (views supported by Mr Kelly, Mr Barrington, Mr I Thompson and Mr Chaippe). In the absence of any attempts to provide an explanation of their failure to address a complaint of racial discrimination even when overwhelming evidence is available to support this, then it is reasonable for the Tribunal to infer that the employer unfairly discriminated against Mr Sidhu."

We comment, and indeed, we have already mentioned that there is no dispute as to the facts set out in paragraph 22(6) of the Extended Reasons.

Section 1(1) (a) of the Race Relations Act 1976 is in the following terms:

"(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."

It was inevitably common ground before us that the causative element within Section 1(1)(a) is not determined by a subjective approach or one that is based on the motives of the employer. This is recognised in King v Great Britain-China Centre [1991] IRLR 513, referred to by the Tribunal in paragraph 17 of their Extended Reasons: (see in particular paragraph 2 of the points made by Neill LJ at page 518).

This is also made clear in R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173 whihc is cited Burton v DeVere Hotels [1996] IRLR 596 at 598. Paragraphs 17 to 21 of the judgment of this Tribunal in the Burton case are in the following terms:

"Miss Cox QC, for the appellants, submitted that a person may discriminate against another within s. 1(1)(a) of the Act when, as the result of his active or passive treatment of the other, the other suffers racial abuse or harassment. Thus an employer will be guilty of unlawful discrimination under s. 4(2)(c) if he 'subjects' the employee to racial harassment or racial abuse serious enough to amount to a detriment. Mr Wilkie QC, for the respondents, did not dissent from that proposition. Here the appellants could prove their case by showing that the respondents had subjected them to a detriment by actively or passively subjecting them to racial abuse or harassment.

Thus, submitted Miss Cox, the only question for the tribunal should have been whether the respondents had 'subjected' the appellants to the detriment of racial abuse and harassment. Instead the tribunal asked themselves whether the employers had subjected the employees to racial harassment on racial grounds. She submitted that the tribunal failed to recognise that an incident of racial harassment of a black person, being race specific, is in itself less favourable treatment on racial grounds by the persons responsible for it. In a case of racial harassment, there is no need for the applicant to show that a white person has been or would be treated differently. The very act of abusing or harassing someone in respect of their race is in itself less favourable treatment on racial grounds: see Strathclyde Regional Council v Porcelli [1986] IRLR 134. She submitted that here the tribunal had looked for evidence of different treatment on grounds of race in a case when none needed to be shown.

Mr Wilkie accepted Miss Cox's submission as to the effect of Porcelli's case, namely that where the treatment under consideration is 'race specific', there is no need for the employee to show that a white person would have been treated differently. However, he did not accept that the tribunal had misdirected themselves on this point by imposing a requirement of different treatment on racial grounds.

In our view the tribunal did impose upon the employees a burden additional to that imposed by the Act, namely the burden of showing that the employers subjected the employee to the detriment of racial harassment on racial grounds. The phrases which we emphasised in our recital of their reasons show that this was so. In effect, they required the employees to show that the employers were themselves affected by racial bias or animus. That is not necessary: see R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173, which is clear authority for the position that it is not necessary for an applicant to show that the discriminator had any intention or motive to discriminate.

We are satisfied that they erred in this regard and that their decision cannot stand on the basis upon which they made it."

Those paragraphs make clear that in some instances described there as "race specific" a comparison is not necessary. They make clear, for example, that the assault in this case would be less favourable treatment on racial grounds. As we understand the position the reasoning that underlies such conclusion is that the nature and effect of some acts or omissions is such that without more it can, and should be (or in the absence of exceptional circumstances should be) inferred and found that they fall within section 1(1)(a) of the Act.

The majority of the Tribunal in their reasoning, as we understand it, accepted that the Respondents had taken a deliberate decision to exclude from their decision-making process, the fact that the assault on Mr Sidhu was a "racial assault". In their Extended Reasons they make no reference to the point whether this approach by the Respondents, or put another way, this decision and its effect, was "race specific".

In our judgment the reasoning of the majority of the Tribunal is flawed and demonstrates an error of law in two respects. First, in our judgment, a fair reading of their Extended Reasons demonstrates that they had regard to the motive or subjective intention of the Respondents. In our judgment this is demonstrated in particular by the last sentence of paragraph 28 of the Extended Reasons and the reference therein to "any conscious or unconscious attempt to discriminate". In our judgment this is an approach by reference to the intention or motive of the Respondents (actual or inferred), and is thus wrong in law.

In our judgment paragraphs 18 and 19 of the Extended Reasons (and in particular the reference in the latter to the evidence of the Respondents that they were investigating an "attack" rather than a " racial attack") also demonstrate that the majority of the Tribunal erred by examining the motive or intention of the Respondents rather than the effect of their conduct, and thus of the decision they took not to have regard to the fact that the attack was a racial attack.

Secondly, in our judgment, the majority of the Tribunal erred in law in not considering whether the conduct of the Respondents relied on to establish racial discrimination (i.e. the investigation of the complaint and the appeal process, in particular, the decision therein not to have regard to the fact that the attack was a racial attack) was "race specific".

We expand on these conclusions under the next heading in this judgment.

In our judgment it follows that the decision of the Tribunal must be set aside.

Should this aspect of the case be remitted to another Tribunal?

The answer to this question is that it should unless we are satisfied that such a Tribunal, properly directing itself, would be bound to reach a particular conclusion on this point.

In considering this aspect of the case we have like the Tribunal reminded ourselves that just because it was found that the Respondents have behaved unfairly it follows that we, or a Tribunal, would be entitled to infer that that they had been guilty of unlawful discrimination (see Fire Brigades Union v Fraser [1997] IRLR 671.

In our judgment a Tribunal, properly directing itself, would be bound to conclude that the decision of the Respondents to exclude from their decision-making process the fact that the attack was a racial attack amounted to racial discrimination within section 1(1)(a) of the Race Relations Act 1976. Accordingly we so find and direct that Mr Sidhu's compensation should be determined by a different Tribunal to that which heard the case before.

Reasons for that conclusion

The finding of the majority of the Tribunal was that the Respondents made a deliberate decision by reference to Mr Barrington's view of the policy that the company should adopt not to take account of the fact that the attack was a racial attack (per paragraph 19 of the Extended Reasons), or not to take any special account of the racial aspects of the matter (per paragraph 28 of the Extended Reasons).

But, it is clear, as was accepted and pointed out by Counsel for the Respondents, that during the investigation carried out by the Committees appointed by the Respondent, the racial elements of the events on 4 August were considered and it was concluded that the attack was a racial attack . Further it seems that in reaching its conslcusion in respect of Mr Smith the Respondents did take into account that the incident involved racial abuse (see paragraph 28 of the Extended Reasons).

This is an approach that has some regard to provocation and cause but in Mr Sidhu's case leaves out of account the underlying basis and cause of the incident and therefore of his provocation and part therein. In our judgment unless it is assessed and based on motive, and thus a subjective view that in considering Mr Sidhu's position his race did not matter, such an approach involves considerable mental gymnastics and is unrealistic. This is because it is extremely difficult to leave out of account a known and accepted element of the incident. This difficulty is shown by the fact that it seems that the racial element was taken into account in the case of the attacker, Mr Smith (see paragraph 28 of the Extended Reasons) as relevant to the seriousness of his actions. and therefore that the effect of the incident was considered differently in respect of the "attacker" and the "attacked".

In our judgment these points indicate that what the Respondents were asserting, and the majority of the Tribunal accepted, was that having regard to Mr Barrington's view of the correct implementation of the company's policy relating to violence it made no difference, and therefore did not matter, that the person attacked and provoked (i.e. Mr Sidhu) was the victim of a racial attack, and provocation and, that the Respondents therefore had no motive or intention to treat Mr Sidhu differently on racial grounds.

In our judgment it is not the motive, or intention, underlying the approach of the Respondents that matters. What matters is the nature and effect of that approach..

As found by the majority that approach was to take and implement a deliberate decision in respect of the Respondents' consideration whether or not to dismiss Mr Sidhu to disregard a central and accepted element of the incident under consideration, namely that the abuse, violence and provocation were racial.

In our judgment a decision to disregard the fact that the cause of an attack, or harassment, or provocation, or anything else, is racial is a "race specific" decision which has a "race specific" effect and is thus "race specific conduct". In our judgment this is so whatever the motive for the decision because its effect is inevitably that the treatment arising from the decision is treatment on racial grounds because it is the racial element of the relevant incident that is being deliberately left out of account.

In our judgment (I) the nature and effect of such a decision in the circumstances of this case is such that amounts in itself to racial discrimination within section 1(1)(a), and (ii) there was no need for Mr Sidhu to show that a white person (or a person from a different racial group) had been, or would have been, treated differently.

In fact it seems from the documents before us and the Tribunal that a white person who was the victim of violence, Mr McCulloch, probably was treated differently by the Respondents. This appears from paragraph 26 of the Extended Reasons which we have quoted earlier and from the letter that was written to Mr McCulloch in which the Respondents said that:

"... We took into account the two points you raised on your appeal, namely provocation and stress.

We found that although a degree of provocation was present, this did not in any way justify your actions ..."

There is no indication from this letter that the underlying cause of Mr McCulloch's provocation was left out of account.

Further, we find it very difficult to see how a fair and consistent application of the policy described in paragraph 8 (j) of the Extended Reasons and paragraph (7) hereof under the heading "Background", could lead to a decision not to take into account provocation and thus the cause of provocation.

It follows in our judgment that it seems that if it was necessary for Mr Sidhu to show that a white person had been treated differently, any Tribunal properly directing itself might well find that the Respondents had treated Mr McCulloch differently and go on to infer racial discrimination within s. 1(1)(a) of the Act. But:

(a) we have not reached our decision not to remit on this conclusion because we do not know the full details of Mr Mculloch's treatment and dismissal, and thus of a factor upon which such an inference might be founded, but

(b) this conclusion as to the likely position in respect of Mr McCulloch reinforces our view that the majority of the Tribunal based their finding that racial discrimination had not been established by Mr Sidhu on an assessment of the motive or intention of the Respondents rather that the effect of what they did.

Given what we consider to be the great difficulty of having regard to only some elements of provocation, we have considered what the position would be if contrary to:

(i) our reading of the Extended Reasons, and

(ii) the submission of Counsel for the Respondents before us, that provocation was taken into account in the investigation of the incident that took place on 4 August and the decision-making process.

In fact the decision and policy of the Respondents was to have no regard at all to provocation or the cause of violence between employees when considering the future of the person who had been attacked, or whose actions had not started the incident.

In our judgment if this was the case the effect of that decision or policy would, for the reasons given above, be "race specific" and therefore (a) it would in itself amount to racial discrimination within section 1(1)(a) of the Act, and (b) there would be no need for Mr Sidhu to show that a white person (or a person from a different racial group) had been or would be treated differently.

On this hypothesis it seems that there would have been a change in approach or policy since the time that the Respondents dealt with Mr McCulloch but we would accept that there would be force in an argument that a white person (or a person of a different racial group) would not be treated differently. However, for the reasons we have given, in our judgment this does not matter.

In our judgment it is clear that Mr Sidhu was dismissed or subjected to a detriment by the racial discrimination we have identified. Indeed, in our judgment correctly, no argument was advanced on behalf of the Respondents that this would not be the case.

In our judgment, it matters not for the purposes of the above reasoning, whether the incident that took place on 4 August did or did not take place in the course of Mr Smith's or Mr Sidhu's employment.