United Kingdom Employment Appeal Tribunal

APPEARANCES

UKEAT/0622/03/DM

 

For the Appellant	MR S SOOR (of Counsel) Instructed By: Messrs Davenport Lyons Solicitors 1 Old Burlington Street London W1S 3NL
UKEAT/0812/03/DM For the Appellant	MS N SIVANANDAN IN PERSON


 


MR JUSTICE BURTON (PRESIDENT):

1. This has been the preliminary hearing of an appeal and a cross-appeal, in respect of the unanimous conclusions of the Employment Tribunal sitting at Stratford, as a result of a lengthy hearing, in a detailed Reserved Decision handed down on 4 August 2003, in respect of a claim by Ms Sivanandan, against a number of Respondents and, in particular, the Seventh Respondent, the London Borough of Hackney.
2. The Employment Tribunal dismissed the First Respondent, the Executive Committee of Hackney Action for Racial Equality ("HARE") from the proceedings, on the basis that it was satisfied that the Executive Committee was not Ms Sivanandan's employer, and that her employer was HARE, described in the title of the action as "a company limited by guarantee", and about whom the Tribunal made findings of fact, in paragraph 18.2, that it was both a company limited by guarantee and a registered charity. With that exception, it made findings that the Applicant's claims of victimisation under both the Race Relations Act 1976 and the Sex Discrimination Act 1975, against all the other Respondents, were well founded, and it adjourned the question of remedy.
3. The basis upon which the Seventh Respondent was found liable was as employer of Ms White, the Eighth Respondent, and the appeal that has been considered before us today at this preliminary hearing has been the appeal of the London Borough of Hackney, the Seventh Respondent, together with those parts of Ms Sivanandan's cross-appeal which have related to seeking to support, on different grounds, the conclusions of the Tribunal.
4. We should mention at this stage that her cross-appeal / appeal also included a case that the Tribunal was wrong to dismiss the Executive Committee of HARE from the proceedings and ought to have found that she was employed by the Executive Committee, rather than by HARE itself. That is a difficult argument for her to pursue (for various reasons with which we do not need to deal in this judgment) and, in any event, it became clear that the First Respondent, the Executive Committee, albeit notified by Ms Sivanandan herself of the existence of this appeal, and in particular of this hearing, has not been sufficiently enjoined in these proceedings, and has certainly not been made the subject matter of any Order in relation to the preliminary hearing, as would normally be the case, giving it the opportunity to put in written submissions in opposition to the appeal by Ms Sivanandan. The prime purpose, it seems to us, of her case that she was employed not by HARE but by the Executive Committee, was to achieve a solvent Respondent, although it is far from clear that the individual members of the Executive Committee would begin to be a sufficiently sensible alternative source of the compensation, if it is not paid by the other Respondents in this case, because HARE itself, her employer on the findings of the Tribunal, has unfortunately no funds.
5. In those circumstances it was sensible to deal first with the appeal by the London Borough of Hackney, who on any basis would be a solvent Respondent, and in the light of the finding that we have made, which we have already announced, namely that we propose to dismiss Hackney's appeal on this preliminary hearing, that gives Ms Sivanandan a solvent Respondent against whom her remedy hearing can proceed; so that it may be for that reason, together with any other difficulties there are, that she will conclude that she does not propose to proceed with her appeal in respect of the First Respondent.
6. The point of law in respect of which this appeal is brought is a very short one, as well articulated by Mr Soor of Counsel, on the Council's behalf, as he did below. The cross-appeal of Ms Sivanandan, with which we have not dealt, would have ranged far more widely and we do not mention any of the matters upon which she would have sought to rely, because in the event they do not arise.
7. The central conclusions of the Tribunal, so far as the Council is concerned, appear at the end of the Tribunal's Decision, and we read them in full:

"39 London Borough of Hackney

Finally the Applicant complains against the London Borough of Hackney. She has alleged that they should, in their own right, be considered as agents of HARE in allowing Ms White to attend the interview. We have found that the invitation was not issued to the London Borough of Hackney specifically but to individual officers of that council. Ms White was permitted by her manager to attend. There is no evidence in this situation to show that the London Borough of Hackney was to be involved, merely that they loaned the use of one of their officers. We are unable to find therefore that in these circumstances the London Borough of Hackney was an agent. They have no responsibility to the Applicant on this basis."

It was, in part, that paragraph against which the Applicant would have sought to cross-appeal in front of us.

"40 However by virtue of sections 41(1) and 32(1) of the respective Acts the London Borough of Hackney is liable for the acts of Ms White. It has not been suggested that Ms White attended the interviews other than as an employee of Hackney. Whilst not acting in the discharge of her official duties, she attended with the approval of her manager. We therefore find that the Applicant's complaint against the Seventh Respondent is to that extent well founded."

8. Because the two acts are materially identical, we propose to concentrate wholly on the Race Relations Act 1976 in the course of this judgment, as indeed we did during the course of submissions. Section 32(1) of the Act reads as follows:

"(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."

9. There is a saving under subparagraph (3) of section 32, which gives what is often called "the statutory defence" to such an employer, if he can show that he took such steps as were reasonably practicable to prevent the employee from committing the impugned act, but no such statutory defence was sought to be run by the Council in this case, so it did not arise for consideration by the Tribunal.
10. The liability of the Council was thus found to be wholly vicarious under section 32(1) for the act of Ms White, and we should therefore turn to consider her position.
11. It was accepted by Mr Soor, in the course of submissions, that the other Respondents were all found by the Tribunal, on its findings of fact, to be liable for acts of victimisation including, of course, HARE, Ms Sivanandan's employer on the Tribunal's findings. There were thus acts of victimisation, and a finding of the necessary protected acts, over a period bringing those Respondents within section 2(1) of the 1976 Act, which reads in material part, as follows:

(1) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -... ."

And then a number of the examples of protected acts are set out in the balance of the section.

12. What is therefore required of a discriminator, in order to be liable for victimisation, is treating a victimised person less favourably by reason of the protected acts.
13. The involvement of Ms White, so far as her liability was concerned, was in her attending on a HARE panel which considered the position of the Applicant. It was conceded below in the submissions which Mr Soor put before the Tribunal, as follows, in paragraph 5 E of his skeleton under the heading "Liability as a secondary party":

"The Eighth Respondent is liable for "anything done by [the Seventh Respondent] in the course of [her] employment" (see Section 32(1) of the Race Relations Act 1976 ... ). It is conceded on behalf of the Eighth Respondent that the Seventh Respondent's involvement with both sets of interviews about which the Applicant complains was within the course of her employment with the Eighth Respondent."

14. The relevant paragraphs, so far as Ms White are concerned, which rendered the Council vicariously liable on the basis of that concession, and in the light of the findings of the Tribunal to which we have referred, are as follows:

"35 Ms Helen White

We next turn to the position of the Eighth Respondent, Ms White. Mr Soor points out that, as the interviews were in relation to employment by HARE, there is no direct case against Ms White. Section 6(1) of the 1975 Act and Section 4(1) of the 1976 Act make identical provisions as follows:

'It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against ... '.

As Mr Soor points out, the essence of this provision is that the employment in respect of which the discrimination takes places must be that of the discriminator. Ms White was not employed by HARE and the jobs with which we are concerned were not with her employer, Hackney. She, therefore, cannot be directly liable. Ms White's liability, if any, must lie within ... Sections 32 and 33 of the 1976 Act. ... Section 33 imposes liability on a person who 'knowingly aids another person' to do an unlawful act. Mr Soor asked us to consider whether Ms White's contribution to the events could be considered to have been done knowingly.

36 The Tribunal find that Ms White must be considered to be an agent of HARE because she was requested by them to attend and sit on the panel. She had authority to undertake that task. Section ... 33(2) ... imposes liability on an agent or an employee for whom a principal is vicariously liable. Interestingly this section provides that the agent shall be 'deemed' to aid the doing of the act and does not contain the word 'knowingly'."

15. In the following two paragraphs the Tribunal then addresses the facts as follows:

"37 The approach which we must adopt is to find, first of all, whether Ms White was guilty of victimising the Applicant. In the first interview she ... took no action with regard to Mr Atkinsanmi's comments. She also failed to enter into any discussion with the other panel members about the scores, did not set out full details and comments and left Ms Howell to sort out the details after the event. Ms White told us that she had undertaken equal opportunities training yet despite this she was happy to leave matters in this unsatisfactory state. Further she amended the Applicant's scores and could offer no explanation as to why she did so. At the second interview she again failed to take action with regard to Mr Atkinsanmi's conduct which she defined to us as being hostile to the Applicant. Again she took no action when Mr Atkinsanmi made an inappropriate intervention with regard to the first question. She accepted his view that the Applicant had not answered the question when she clearly had. She gave the Applicant no marks for 1a and low marks for 1b. She has not suggested that she was entitled to follow Mr Atkinsanmi in his unreasonable view and does not appear to have exercised her own judgment. At the end of the interview she failed to suggest that the panel members discussed the score or to take any steps to remedy the general inadequacies of the whole arrangements. We have further found that she has been untruthful to us in claiming to have made detailed notes of the interviews.

38 She was of course aware from the application forms and from remarks made by the Applicant at the commencement of each interview, that there were other proceedings in place against HARE and against the London Borough of Hackney. Whilst we have found that she was not aware of the proceedings against Hackney, previously, she was certainly aware from that moment onwards. She was also aware that the Applicant attacked the constitution of the panel although she denied this when giving evidence. It is surprising, in view of that challenge, that she did not check the position before the second interview to see whether the Applicant was right or not. Having considered these facts, and the other evidence which Ms White has given us, the Tribunal is drawn to the conclusion that she consciously treated the Applicant less favourably than the other candidates. This is most obvious from the marking of questions 1a and 1b. Even if she felt it appropriate to follow the lead given by Mr Atkinsanmi, she had to mark the same question for the other candidates and would have been able, on reflection, to compare their answers and the marks she gave them, in relation to the information given by the Applicant. Ms White did not therefore merely go along with the flow. Her conduct was also less favourable to the Applicant. It is difficult for the Tribunal to understand why she should have behaved in this way to the Applicant. There were no personal difficulties between them. Prior to these interviews she had not met the Applicant or had knowledge of her. The only inference that the Tribunal is able to draw is that she was influenced by the general attitude within HARE which was entirely antagonistic to the Applicant. Her explanation was not satisfactory. To questions on the detail of her markings, she repeatedly replied that she no longer had any recollection. She claimed to be handicapped by the lack of her detailed notes, which had been mislaid by HARE. A careful consideration of the evidence lead us to find that these notes had never existed. We had other concerns about her evidence which we have referred to. In those circumstances the Tribunal find that her less favourable treatment of the Applicant was carried out knowingly in the sense that she understood the implications of her marking of the Applicant and intended, as did the other committee members, that the Applicant should not obtain either post. The position is very clear from the second interview and we find ourselves entitled to deduce from this that her attitude was no different at the first interview. At neither interview did Ms White, or any panel member, show the slightest interest in the result. The Tribunal have decided that this can only lead to the finding that the result was a foregone conclusion, and this would inevitably mean that the Applicant would fail. Ms White was as much affected by that view as the other panel members."

There is then a subparagraph dealing first with the Sex Discrimination Act, and then with the Race Relations Act.

16. Mr Soor has submitted that what here occurred is that Ms White was only found to be liable on the basis that she was a principal discriminator or victimiser. In those circumstances she would not otherwise have been found liable, because under the Act an individual cannot be liable as a victimiser, but for section 33(2). Section 33 reads as follows:

"(1) A person who knowingly aids 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 of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3)) shall be deemed to aid the doing of the act by the employer or principal."

17. Mr Soor submits that since Ms White was thus found liable only on the basis that she was a principal victimiser who was deemed to be aiding and abetting, by virtue of section 33(2), in those circumstances it is wrong, and inappropriate, under the Act, as a matter of policy and construction of the Act, that someone who was a principal victimiser should render liable both her principal, as a result of the deeming provisions of section 33(2), and her employer, as a result of the express provisions of section 32(1) which we have set out.
18. We address Mr Soor's submissions on two bases. His first submission was that the Tribunal found that Ms White was only liable as victimiser, and as deemed to be aiding and abetting her principal, HARE, so as to become herself liable as an aider and abetter under section 33(2). On that assumption Mr Soor submits that she cannot also render her employer liable.
19. In paragraph 36 of the Tribunal's Decision it is clear that the Tribunal found that Ms White must be considered to be an agent of HARE, and that, consequently, liability was imposed on her under section 33(2), because HARE was the employer of Ms Sivanandan. As we have cited from paragraph 36, the Tribunal pointed out, as a matter of interest, that section 33(2) provided that the agent should be deemed to aid the doing of the act, and did not contain the word "knowingly".
20. On the assumption that the Tribunal only found that Ms Sivanandan was liable for aiding and abetting victimisation on the basis of a deemed aiding and abetting under section 33(2), we still do not accept the force of Mr Soor's argument.
21. It is clear to us that section 32(1) is a very straightforward section. If someone is liable under the Act, and, it appears to us, liable under the Act on any basis, either as principal, but deemed to be an aider and abetter under section 33(2), or as a knowing aider and abetter under section 33(1), in such case she has done an act for which her employer is liable, if that act was done in the course of her employment. We can see no difficulty with that proposition, just as might be the case if, for example, an employee of company A were seconded to company B and then did an act while agent, but not employee, of company B, for which under some statute, such as the Trade Descriptions Act, liability would fall both on principal and agent in respect of the same act. If there were in such circumstances a statute which says, as this one does, that that person's employer (always subject to the statutory defence) was also liable, we see no difficulty in a finding both that the principal was rendered liable under section 33(2) and the employer (if different) rendered liable under section 32(1). It is always worth emphasising that the employer would have the statutory defence available, although not in this case.
22. We see no point of law worth considering in relation to this point. The matter is, in our judgment, entirely clear.
23. However, we are not at all sure that the matter even arises in relation to this case. It is apparent that the question that Mr Soor raised, firmly and well, for the Tribunal to answer under paragraph 35, in pointing out that Ms White could not be, as the Tribunal put it, "directly liable", and that her liability, if any, must lie under sections 32 and 33 of the 1976 Act, emphasised to the Tribunal that its job was to consider whether Ms White's contribution to the events could have been considered to have been done knowingly, a word which the Tribunal, in paragraph 36, pointed out was absent from section 33(2).
24. It is right to say that the Tribunal made the finding of deemed aiding and abetting, which in our judgment is sufficient, in paragraph 36, but it then turned to its findings of fact in paragraphs 37 and 38. It is right that the Tribunal addressed the question in terms at the outset of paragraph 37, as to whether Ms White was guilty of victimising the Applicant, rather than using the words "aiding and abetting" the victimisation of the Applicant, although it was clear from the findings the Tribunal made elsewhere in the Decision that there was victimisation by the other Respondents; and when it turns to a more detailed consideration of the facts, which we have already quoted in paragraph 38, it is plain that what it was addressing is a conclusion that Ms White was not the initiator of the victimisation, but that, having been drawn in to take part in the panel, she "went along with the flow".
25. Mr Soor has submitted that what the Tribunal was doing, in addressing the facts, was concluding whether there had been unfavourable treatment by Ms White; but it is plain that that is not all the Tribunal was doing, because it very quickly concludes that there was unfavourable treatment in the passage which we have cited, and proceeds to consider the question as to whether that less favourable treatment was "knowing".
26. It may be that the Tribunal was addressing the question of knowing conduct by Ms White on what was, in its view, perhaps unnecessary, namely the basis that a deemed aiding and abetting under section 33(2) might still, by virtue of the cross reference to section 33(1), require a finding of such conduct being knowing. The Tribunal does not explain that in terms, and it may be that that is what it was doing. But what it was also doing, on any basis, was making findings of fact that the conduct was knowing, which was directly and clearly relevant to the issue to which Mr Soor had referred in paragraph 35, namely that under section 33(1) it was, on any basis, clear that any aiding and abetting would have to be knowing.
27. It is obvious from the passage which we have cited that the way in which the Tribunal expressed itself was not a model of clarity, and it is certainly right that it does not conclude paragraph 38 by saying "In the alternative therefore we are satisfied that, quite apart from any deemed aiding and abetting under section 33(2), there was here actual knowing aiding and abetting under section 33(1); but in the light of the findings of fact that they were making, and did make, that conclusion is inevitable.
28. In those circumstances, therefore, if the position were, and Mr Soor was really driven to accept this towards the end of his submissions, that in terms the Tribunal had made a simple finding that, on their findings of fact, Ms White under section 33(1) knowingly aided and abetted the victimisation by HARE and the other Respondents, and thus, under section 32(1) the Council was vicariously liable for her, there could have been no challenge to their findings and Mr Soor's argument would not have got off the ground, or even to the starting post. We are satisfied that that is what the Tribunal was doing, as an alternative to its finding that there was deemed aiding and abetting; but if that is not right then it is quite clear that the Tribunal made more than sufficient findings of fact such that, if asked now the question whether there was knowing aiding and abetting on the Tribunal's findings of fact, the answer would be inevitable.
29. We are therefore satisfied that, if Mr Soor's primary submission be right that the Tribunal only found deemed aiding and abetting, the Council would still be vicariously liable under section 32(1) of the Act, as the Tribunal found. Even if that be wrong, however, and it were necessary in order for the Council to be found vicariously liable under section 32(1) for there to have been actual knowing aiding and abetting by Ms White under section 33(1), either the Tribunal did so find, or it is inevitable that, if the matter was sent back to the Tribunal, they would so find, on the basis of the findings of fact they have made.
30. In those circumstances it is quite clear to us that this point raised by Mr Soor is unarguable and leads nowhere, and consequently that this appeal should be dismissed.