United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M PALMER (Solicitor) Messrs Allen & Overy 1 New Change London EC4M 9QQ


 


JUDGE PETER CLARK: The question at a preliminary hearing held in this case before the Birmingham Employment Tribunal was whether the Tribunal had jurisdiction to entertain Mr Zulfiquar's claim of unlawful racial discrimination brought against Factory Mutual Insurance Company (Factory Mutual) and it's Claims Manager, Mr Henderson. If not, the application by those Respondents was for the complaint to be struck out under rule 13(2)(d) of the Employment Tribunal Rules of Procedure 1993.

1. The factual background alleged by the Applicant was as follows:

Factory Mutual insured the premises of Alverston Kitchens. There was a fire at those premises. Alverston called in a property repair company, Mediatecnics Plc. The Applicant is the Managing Director and an employee of that company. When Factory Mutual, as insurers, came on the scene, they decided through Mr Henderson that the restoration work should not be carried out by Mediatecnics. As a result Alverston terminated the services of Mediatecnics and a competitor, Imbach Ltd, was appointed in the place of Mediatecnics. Mediatecnics then bought breach of contract proceedings against Alverston in the High Court. That claim was settled. It was a term of that settlement that Mr Zulfiquar would not pursue a complaint of racial discrimination against Alverston. Instead, he brought the present proceedings against Factory Mutual and Mr Henderson before the Employment Tribunal. His case, in a nutshell, is that he was discriminated against by Alverston on grounds of his race. He is of Asian racial origin. The present Respondents were also guilty of unlawfully discriminating against him. The issue for the Tribunal was whether he could bring his claim against these Respondents within the framework of the Race Relations Act 1976.

2. The Tribunal found that it had jurisdiction to entertain the complaint but directed that the case proceed to a full Merits Hearing. Against that decision, the Respondents now appeal. The Appeal raises three questions:

(i) Did there exist a relationship of principal and contract worker between, respectively Alverston and the Applicant within the meaning of section 7(1) of the Race Relations Act 1976. The Tribunal found that such a relationship existed. There was a contract between Alverston and Mediatecnics under which the latter supplied workers including the Applicant to do work for Alverston.

That finding is challenged by Mr Palmer. He submits that the contract between Alverston and Mediatecnics was for the supply of a service by Mediatecnics as an incident of which the applicant and other workers employed by Mediatecnics performed that service. That is materially different, he submits, from a contract for the supply of contract workers.

We reject that submission, by analogy with the store/concessionaire relationship in Harrods Ltd v Remick (1997) IRLR 583. In this case the Applicant was carrying out works for Alverston under the contract made between Alverston and Mediatecnics. The act by Alverston alleged to be unlawful is that of not allowing Mediatecnics and in turn, the Applicant, to continue to do the restoration work, see Section 7(2)(b).

(ii) On the face of their reasons, the Tribunal found that the Respondents were potentially liable to the Applicant under section 32 of the Act. Section 32 deals with the liability of employers and principals for the acts of their employees, acting in the course of their employment, or agents. Here, as Mr Palmer submits, the only relevant employer or principal, more particularly the latter, is Alverston, not these Respondents. Indeed the Tribunal found that the Respondents acted as agents for Alverston and not the other way about. Accordingly, it seems to us, at the least arguable, that these Respondents are not fixed with potential liability under and by virtue of section 32 of the Act.

(iii) However, Mr Palmer correctly anticipates at this Preliminary Hearing a potential argument on behalf of the Applicant that the Tribunal's decision maybe upheld on the alternative ground that the Respondent's are caught by the provisions of section 33 of the Act.

Section 33 (1) provides:

A person who knowingly aides 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 to the like description.

It seems to us, on the way the Applicant puts his case, that if he proves that the Respondents as insurers, asked their insured Alverston to dismiss Mediatecnics from their contract with Alverston and assisted them by providing alternative contractors on racial grounds, that is because they wanted the restoration work done by white workers and not Asian workers including the Applicant, then arguably they come within the definition of a person or persons who knowingly aided another person, Alverston, to do an unlawful act, that is to discriminate against the Applicant as a contract worker under section 7 and as such the Respondents are also to be treated as liable under and by virtue of section 33(1). That is sufficient to defeat the strike – out claim.

Mr Palmer does not seek to argue the contrary. He accepts that if he fails, as he has done, on the section 7 argument then it is open to the Tribunal to find against these Appellants on the basis of section 33(1).

In these circumstances, we +shall affirm the Tribunals decision on the grounds that it is plainly and unarguably correct, notwithstanding any misdirection in law under section 32 of the Act, applying section 7 and 33(1) to the facts alleged by the Applicant see Dobie v Burns International (1984) ICR 812.

Whether that case is made out will be a matter for the Employment Tribunal hearing the case on its merits. This appeal is dismissed.