United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS OMAMBALA (of Counsel) Messrs Thompsons Solicitors Percy House, Percy Street Newcastle-upon-Tyne NE1 4QW
For the First Respondent For the Second Respondents	MR T NEWTON (Representative) North East Employment Law Consultants Ward Jackson Chambers 1st Floor, 73a Church Street Hartlepool Cleveland TS24 7DN MS S MOOR (of Counsel) Messrs Dickinson Dees Solicitors St Ann's Wharf 112 Quayside Newcastle-upon-Tyne NE99 1SB


 


JUDGE PETER CLARK: We have before us three separate appeals brought by Ms Khan, the eleventh respondent to claims brought by the applicant, Ms Burton in the Newcastle-upon-Tyne Employment Tribunal. The remaining parties, the first to the tenth respondents may compendiously be referred to as the Management Committee of the Gateshead Law Centre ['MCGLC'].

1. It is convenient to deal first with the principal appeal (EAT/278/00) and for that purpose to begin with the relevant law to be found in the Race Relations Act 1976 ['the Act'].

The Law

2. S.1(1)(a) of the Act provides that a person discriminates against another in any circumstances relevant for the purpose 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."

3. Such discrimination is rendered unlawful by Part II of the Act. Specifically for present purposes, by s.4(2)(c) it is unlawful for an employer to discriminate against an employee by dismissing him or subjecting him to any other detriment.
4. Thus a combination of ss.1(1)(a) and 4(2)(c) renders unlawful discriminatory behaviour by an employer towards his employee.
5. Part IV extends the scope of liability for unlawful acts beyond simply the employer, who is vicariously liable for the discriminatory acts of his employees done in the course of their employment by virtue of s.32.
6. By s.31 it is unlawful to induce or attempt to induce a person to do an act unlawful under Part II.
7. However, proceedings against such an inducer may only be brought by the Commission for Racial Equality (s.63). The CRE is not a party to these proceedings.
8. S.33(1) catches a person who knowingly aids and abets another to do an unlawful act under the statute. However, the Court of Appeal, by a majority, narrowly construed that provision to apply only to a person who is not the prime mover in the alleged discriminatory act. Anyanwu v South Bank Students Union and another [2000] IRLR 36. That decision is to be considered by the House of Lords.
9. However, s.33(2) provides that for the purposes of s.33(1) an employee for whose act his employer is liable under s.32(1), or would be but for the statutory defence under s.32(3) is deemed to aid the doing of the act by the employer. That provision, it seems to us, is not caught by the restrictive interpretation placed on s.33(1) by the Court of Appeal in Anyanwu, and mirrors the liability of both employer and employee as joint tortfeasors in the civil law of tort. Unlawful racial discrimination is a statutory tort.
10. Against that legal background we turn to the complaints in the present case.

The complaint

11. The applicant, a solicitor, was employed at the Gateshead Law Centre from 22nd July 1993 until her dismissal by MCGLC on about 8th April 1999.
12. She commenced these proceedings by an Originating Application presented on 2nd July 1999, alleging unfair dismissal, racial discrimination, and breach of contract. She is white.
13. At all relevant times the appellant, Miss Khan was also employed at the Law Centre as a community development worker. She is of Asian racial origin.
14. During the course of their employment Miss Khan made complaints of harassment and bullying by the appellant. Those complaints were investigated by MCGLC and ultimately formed the basis for the decision to dismiss the applicant.
15. In her Originating Application the applicant contended, among other things, that Miss Khan's complaint was racially discriminatory against her on the basis that Miss Khan would not have treated a non-white person in the same way, that is by raising such complaints.
16. The claim against Miss Khan has been vigorously defended and on 11th November 1999, having earlier entered a Notice of Appearance, her trade union representative applied to the Employment Tribunal for an order striking out the Originating Application against her under Rule 13(2)(d) of the Employment Tribunal Rules of Procedure, that is on the basis that it was an abuse of process.
17. In due course the applicant's representative supplied further particulars of her case against Miss Khan, framing the case against her in law as one of direct discrimination contrary to ss. 1(1)(a) and 4(2)(c) of the Act, induced by Miss Khan contrary to s.31.
18. The strike out application came on for hearing before an Employment Tribunal chaired by Mr J R Barton on 17th January 2000. By a decision with reasons promulgated on 19th January 2000 the tribunal refused to strike out the claim against Miss Khan under Rule 13(2)(d).
19. In the reasons given by the tribunal it is important to note that Mr Newton, of Northern Employment Law Consultants, appearing on behalf of the applicant, expressly conceded that the Employment Tribunal had no jurisdiction to consider the claim against Miss Khan under either ss. 31 or 33 of the Act.
20. His defence to the strike out application succeeded, so that tribunal found, on the basis of ss.4(2)(c) and 32 of the Act.
21. In the principal appeal Ms Omambala for Miss Khan, supported by Ms Moor for MCGLC, submits that such a finding is plainly wrong. S.32 is headed 'Liability of employers and principals' which is a strong clue to its obvious purpose, which is to render employers liable for the disciplinary acts of their employees done in the course of their employment and, not material to this case, principals for the acts of their agents.
22. Put simply, s.32 does not give rise to any liability on the part of the discriminating employee. That personal liability, we think, is imposed by s.33 and in the case of employees specifically by the deeming provision in s.33(2). However, the applicant, through her representative, expressly conceded that s.33 did not found the tribunal's jurisdiction in this case.
23. Accordingly, submits Ms Omambala, the claim against Miss Khan is manifestly misconceived, see Marler v Robinson [1974] ICR 72. The claim ought to be struck out under Rule 13(2)(d), the actual result in Anyanwu.
24. By her Respondent's Answer in this appeal dated 15th March 2000, settled by Mr Newton, the applicant relies only on the grounds relied on by the Employment Tribunal for resisting the appeal.
25. He supported that defence of the Employment Tribunal decision by inviting us to construe s.32(1) in such a way that the provision imposed a liability on both the employer and the employee for whose acts he is vicariously liable. He relies particularly on the words "as well as by him" appearing in the subsection.
26. We are unable to accept that construction. It is clear to us that the liability on the discriminating employee is imposed by s.33(2) only.
27. The difficulty is that before the Employment Tribunal Mr Newton expressly conceded that s.33 did not apply in this case. However, during the course of the argument before us he has sought to withdraw that concession.
28. Ms Omambala and Ms Moor objected to Mr Newton resiling from his concession below. Reliance was placed on recent Court of Appeal decisions in Jones v Burdett Coutts School [1999] ICR 38, see particularly Robert Walker LJ at 44B and Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719, particularly Laws LJ at paragraph 18, for the proposition that even where no further factual enquiry by the Employment Tribunal is necessary, and even where a point not taken or conceded below goes to jurisdiction, it will only be in exceptional circumstances that the party will be allowed to take the new point on appeal or not be held to his concession below. This is so, see Jones, even if the result is to uphold an Employment Tribunal's decision which is itself wrong in law.
29. Those were cases involving new points or concessions by appellants before the Employment Appeal Tribunal. The principle applies equally to respondents before the Employment Appeal Tribunal, see Hellier Bros Ltd v MacLeod [1987] IRLR 232.
30. We must accept and apply those principles in this case. What are the exceptional circumstances here? We can find none. Examples might include where a party has been misled by his opponent. Nothing of that sort is alleged in this case. Furthermore, unusually we think that the balance of prejudice is in favour of the appellant, who will remain a party if the concession may be withdrawn, whereas the applicant will not lose her cause of action altogether, but can maintain it against the employer as being vicariously liable for the alleged discriminatory acts of Miss Khan. It goes without saying that we make no comment on the merits of that claim. For the purpose of a strike out application we are required to assume that the facts advanced by the applicant are correct. Further, this is not a case, so far as we can see, where any additional compensation would be awarded against Miss Khan over and above that awarded against the employer for the particular nature of the discrimination alleged, cf. Armitage v Johnson [1997] IRLR 62. Although, if Miss Khan is dropped from the proceedings, as a party, the applicant will be unable to obtain a declaration against her personally, if the claim succeeds against the employer the effect of that declaration will be the same as a declaration against Miss Khan personally in so far as the employer is held to be vicariously liable for the discriminatory acts of Miss Khan.
31. In these circumstances we shall not allow Mr Newton to withdraw his concession. The Employment Tribunal decision shows an error of law on its face. They have misconstrued s.32 of the Act. Without reliance on s.33 the claim against Miss Khan is wholly misconceived. Accordingly we shall allow this appeal and strike out that claim under Rule 13(2)(d).
32. We should make it absolutely clear that but for the concession below as to the applicability of s.33 in this case we would have upheld the Employment Tribunal's decision on the basis that s.33(2) completed the applicant's alleged cause of action against Miss Khan personally.

Further appeals

33. Thus far we have dealt only with the principal appeal. There are two further appeals before us as follows:

(1) EAT/1114/00, an appeal by Miss Khan against a decision or order of a chairman, Mr N W Garside, dated 29th June 2000, declining to strike out the Originating Application against her under Rule 4(7) for the applicant's failure to comply with an order for further particulars and

(2) EAT/1115/00, an appeal against the decision by that chairman dismissing an application for a review of his earlier decision by letter dated 24th July 2000.

34. It is common ground before us that having allowed the principal appeal and struck out the claim against Miss Khan under Rule 13(20(d) it is not necessary for us to adjudicate on these two further appeals. Accordingly we make no order in those appeals.