United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr D Onifade, Consultant Of- Intra Vires Ltd 13 Guthrie Street EDINBURGH EH1 1JG
For the Respondent	Mr D B Stevenson, Solicitor Of- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT

SUMMARY
RACE DISCRIMINATION

Victimisation

A remark of "you Pakistanis are all the same" to a Pakistani in the context of "you Muslims are all troublemakers" is capable of being race discrimination. The Employment Tribunal's finding of victimisation for having complained of this remark was upheld.


 


HIS HONOUR JUDGE McMULLEN QC:

1. This case is about victimisation under the Race Relations Act 1976. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal sitting over five days at Glasgow, Chairman, Mr Roy MacIver, registered with reasons on 29 October 2004, four and a half months after the close of the oral hearing. No explanation has been given for this delay, which was chased up by the Respondent and which is beyond the three and a half months which is acceptable. However, no point is taken on this since the issue before us is one of construction.
3. The Claimant was represented there by an officer of Unison and today has the advantage to be represented by Mr Stevenson, solicitor. The Respondent (Ethnic Minorities Participating On Wider Economic Responsibilities) was represented there and here by Mr Onifade, consultant. The Claimant made a number of claims which were dismissed but surviving on appeal is that he was victimised unlawfully. The Respondent contended that the act relied upon for establishing victimisation is not a protected act within the legislation. The essential issue on appeal, therefore, is the construction of section 2(1) and 4(2) of the Race Relations Act 1976 which provide so far is as relevant:-

"2 Discrimination by way of victimisation

(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-

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act"

and

"4 …Applicants and employees

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-

(c) by dismissing him, or subjecting him to any other detriment."

The Tribunal decided that the claim fell within the sections and awarded the Claimant £11,673 in compensation, including injury to feelings. That in itself is not appealed, subject of course to liability.

4. The Respondent does appeal against liability based upon the construction of the sections and the application of those sections to the facts found. Lord Johnston had directed that no action be taken on the original Notice of Appeal. Directions sending this appeal to a full hearing were given in Chambers by Mr Justice Burton, President, following a fresh Notice of Appeal sent by the Respondent pursuant to Rule 3.
5. The Employment Tribunal directed itself by reference to the relevant provisions of the Act and what we hold to be the leading authorities which are cited in its judgment and to which we will return.

The facts

6. The Tribunal summarised the position of the parties as follows:-

"4. The respondents (Ethnic Minorities Participating On Wider Economic Responsibilities) were established in 2003 as an "umbrella" body to co-ordinate the work of a number of bodies which were active in promoting equal opportunities for people from ethnic minorities in employment. Each of these bodies focussed on different areas of employment and different groups of people, and they perceived a need to ensure that their work did not overlap, and that work was done in areas which were not covered by them. Each of these bodies was represented on the respondents' board. The respondents' activities were financed primarily by grant from the European Social Fund.

5. The staff comprised two full time employees, the Project Co-ordinator and the Development Assistant, and a Financial Co-ordinator who was responsible for the finances of the participating bodies and who therefore only worked in the respondents' offices on a part-time basis. Mr Singh, who was appointed as the Project Co-ordinator, had been born in India to Sikh parents, had come to the United Kingdom at the age of 5 and been brought up in Birmingham; he had been working in the Glasgow area for a number of years on project in the field of race relations. The claimant had been born in Glasgow to parents of Pakistani origin and brought up as a Muslim. He had obtained a qualification in Community Work from Glasgow University. He describes himself as having an active commitment to the Islamic faith."

7. The principal actors in this drama, apart from the Claimant and Mr Singh, who all gave evidence before the Tribunal were Mr Tesfu Gessesse, the Chairman of the Board, Mr Ian Reid, the Finance Consultant and two members of the committee which considered the Claimant's grievances. The employment of the two staff began on 3 February 2003 and in the Claimant's case ended on 31 July when he was dismissed with one month's pay in lieu of notice.
8. The Tribunal heard evidence relating to a number of complaints made by the Claimant about the reason for his dismissal and his treatment by the Respondent. As can be seen from the careful treatment given by the Tribunal to all of these allegations, the issue was not free of complication, but on appeal an issue has been narrowed. The Claimant made allegations against Mr Singh and in a grievance letter dated 6 May 2003 to the Chair of the group he said as follows:-

"The following are serious concerns that I would like to bring to your attention.

                      Always boasting about Indians and achievements of the Indian Government i.e. placing Indian flags in the EMPOWER offices

                      Making sweeping statements and derogatory remarks against Pakistanis and Muslins in general.

I came to work in this new organisation with an open mind and with real commitment to work as part of a team. I have never wished to create any conflict with Mr Prem Singh but due to his antagonistic behaviour I have been forced to stand up for myself. I truly believe that everyone has the right to be able to work in a climate of respect, free from intimidating, offensive, hostile, insulting or humiliating treatment.

The consequences of such behaviour from someone with preconceived and prejudicial opinions can have serious consequences for the project

As an equal opportunities organization we are not following our own EMPOWER Development Partnership, Equal Opportunities Policy - "The Equal Theme B Development Partnership, EMPOWER, is positively and pro-actively committed to the implementation of equal opportunities. It would work to bring the elimination of discrimination experienced by people on grounds of race."

9. That grievance letter also dwelled upon the events of 2 May 2003 when Mr Singh, the Claimant, and Mr Reid went to a pub. The Claimant does not drink, the others did. The accounts of what occurred differ. It is fair to say that in the grievance letter the Claimant did not mention any criticism of himself as being Pakistani.
10. In due course, the Personnel Sub-Group of three people considered on 10 June the Claimant's grievance and further material was given, plainly referring to the Claimant's grievance letter. There is this in the Respondent's notes:-

"Shaheen asked Akhter [the Claimant] to give the Sub group examples of Prem [Singh]'s 'racist' and intimidating behaviour towards Akhter, other than the imposition of Indian flags in the office. He gave example of Prem's anti-Pakistani and Muslim sweeping statements such as ' you Pakistani's are all the same' and 'you Muslims are all troublemakers'."

The result of the grievance was, as far as the Claimant was concerned, unsatisfactory and he was in due course dismissed.

11. The Tribunal made findings in respect of the events on 2 May and presumably the consideration of that grievance by the Respondent up to and including 10 June and leading to his dismissal. The Tribunal dismissed a substantial number of the Claimant's concerns. Broadly speaking, his concerns about what had been said by Mr Singh about the Claimant being a Muslim or Muslims in general, were rejected by the Tribunal as being outside its jurisdiction. This is because the Regulations dealing with discrimination on grounds of religion were not introduced at the time of these proceedings nor was the regulation amending and introducing section 3(a) including harassment which did not come into effect until 19 July 2003, which followed Mr Singh's alleged treatment of the Claimant.
12. The Tribunal noted that there was very little dispute that the dismissal of the Claimant was a response to the action of the Claimant in complaining over Mr Singh's conduct to him. In paragraph 39 the conclusion of the Tribunal is as follows:-

"39. It is our view that the claimant was treated less favourably and suffered the ultimate detriment of loss of his employment because he had alleged that Mr Singh had committed acts which would amount to a contravention of the Act. The claimant had complained of comments and statements made to him by Mr Singh which amounted to verbal abuse of him as a person of Pakistani national origin and as a Muslim. Many of the allegations were of comments offensive to Muslims, and as we have taken the view that these are not covered by the provisions of the Act, following the rationale of Waters v Commissioner of Police of the Metropolis [19971 IRLR 58 where the Court of Appeal held under the parallel provisions of the Sex Discrimination Act, that "while the allegation relied on need not state explicitly that an act of discrimination has occurred. All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer." (Waite LJ at p597).

Finally the Tribunal indicated that it rejected the Respondent's defence based on section 4(2) before it found that the allegations were substantiated and there was no evidence to indicate lack of good faith. None of those matters is pursued on appeal.

The Respondent's case

13. The Respondent submitted the Tribunal had erred in law in that the words in the grievance did not constitute a protected act. Mr Onifade, to whose submissions we pay tribute, submitted that as a matter of construction the language of the grievance was not capable of constituting a breach. The test is: if the Claimant brought proceedings on the basis of direct discrimination rather than on victimisation, would he have succeeded? To this, Mr Onifade gives the answer "No." He accepted that the correct construction of the relevant part of the grievance letter is "making derogatory remarks against Pakistanis" and that this is the operative part which would trigger a claim under the Race Relations Act if at all. He accepted that if the remark was otherwise within the statute, a non-Pakistani could make a complaint of a derogatory remark against Pakistanis.
14. In accepting that construction, there is a distinction between derogatory remarks made against Muslims in general on the one hand, and, specifically, Pakistanis on the other. Mr Onifade accepted that 90% of Pakistanis are Muslim and no objection was taken by Mr Stevenson to that essentially evidential matter.
15. It was contended that in the material before the Tribunal the Claimant did not allege that he was the target of abuse or harassment by Mr Singh or that he was distressed. The elaboration of his complaint to which attention was drawn by Mr Onifade was at the Personnel Sub-Group. It is not in itself an allegation of a derogatory comment against a Pakistani. It was acceptethat context is important and some remarks seen in context may or may not be discriminatory. It was accepted also that the Claimant himself being a Pakistani, remarks against Pakistanis of a derogatory nature might cause distress but this is subjective and an objective test must be adopted, Mr Onifade contended.
16. Even if Mr Singh could be accused of stereo-typing he did not abuse the Claimant himself and stereo-typing is not an unlawful act under the legislation. The words were not directed at the Claimant himself. Further the Respondent ought to know clearly whether an allegation is being made against it and what it was and there was no way of knowing what the allegation was either race discrimination or victimisation. No higher standard should be imposed upon this organisation which undoubtedly is committed to the highest standards of behaviour and conduct in the minority ethnic communities. The test is whether the Claimant could himself sue in respect of the words used by Mr Singh.

The Claimant's case

17. On behalf of the Claimant, Mr Stevenson drew other inferences. Putting together the language of the grievance and the Respondent's note of the grievance hearing, there was abuse. It was based upon an allegation that the Claimant was Pakistani and derogatory remarks were made against Pakistanis and this caused distress as the letter itself says. The Tribunal has found as a fact that there was abuse directed to the Claimant as to what is described as the notice point. This employer in particular could have had no doubt that a claim was being made of racism and indeed that word is used albeit in speech marks in the notes.

The legal principles

18. The legal principles which were considered by the Employment Tribunal which we accept to be correct mention the following authorities. In Thomas v Robinson [2003] IRLR 7 the EAT, His Honour Judge Reid QC, and members said this in respect of certain words used against persons of the black African-Caribbean minority who had come to Britain.

"The words complained of should never have been used. Comsoft recognized this and disciplined Miss Thomas promptly for her remarks. The words were not directed at Ms Robinson, born and raised in Coventry, but they could have been taken as being aimed at her parents. It does not matter whether the words reflected Miss Thomas's own views or merely purported to relay the effect of a television programme."

19. That case however was disposed of on the grounds that there had been an irregularity at the hearing. A single remark is capable of being racial abuse, if detriment is proved. It is sufficient for our purposes to note that it appears to be the finding that words were not directed at the Claimant but at persons of her parent's generation. Nevertheless it does appear that there needs to be some direction of the remark. In Waters v the Commissioner of the Metropolis of Police [1997] IRLR 589 Lord Justice Waite giving the principal judgment of the Court of Appeal said this:-

"That submission fails in my judgment for this reason. True it is that the legislation must be construed in a sense favourable to its important public purpose. But there is another principle involved - also essential to that same purpose. Charges of race or sex discrimination are hurtful and damaging and not always easy to refute. In justice therefore to those against whom they are brought it is vital that discrimination (including victimisation should be defined in language sufficiently precise to enable people to know where they stand before the law. Precision of language is also necessary to prevent the valuable purpose of combating discrimination from becoming frustrated or brought into disrepute through the use of language which encourages unscrupulous or vexatious recourse to the machinery provided by the Discrimination Acts. The interpretation proposed by Mr Allen would involve an imprecision of language leaving employers in a state of uncertainty as to how they should respond to a particular complaint and would place the machinery of the Acts at serious risk of abuse. It is better, and safer, to give the words of the subsection their clear and literal meaning. The allegation relied on need not state explicitly that an act of discrimination has occurred - that is clear from the words in brackets in s.4(1)(d). All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer within the terms of s.6(2)(b). The facts alleged by the complaint in this case were incapable in law of amounting to an act of discrimination by the Commissioner because they were not done by him, and they cannot (because the alleged perpetrator was not acting in the course of his employment) be treated as done by him for the purposes of s.4(1)."

20. From that, allegations of race discrimination must be made seriously and are plainly taken seriously by those against whom they are made. It is important in our case because both the Respondent and the Claimant were engaged in a field of activity in which the fight against race discrimination is regarded as very important, something which we too agree with.
21. In Westminster Victim Support Scheme v Keyani EAT/329/02 in a judgment delivered on behalf of the EAT by Mr Justice Rimer, a claimant of Persian origin, who had lived in the United Kingdom since she was twelve, made five allegations relating to comments made at her workplace. The Employment Tribunal upheld all five complaints. On appeal, only one was upheld. One was dealt with in great detail which appears to apply to all the other three which were dismissed. The judgment of the EAT indicates that there needs to be some targeting of the abuse if it is to sound as a claim of race discrimination.

Conclusions

22. We prefer the arguments of Mr Stevenson on the construction point. The approach to this case has to be essentially one of fact. No issue arises as to allegations of abuse of Muslims, for the Tribunal plainly focussed on what was within and without the statute. To fit within section 2(1)(d), the allegation made by the Claimant needs to indicate that the grievance contained a derogatory remark against Pakistanis. Of course being Pakistani is within the statute as a racial group by reference to national origin The fact that the Claimant was Pakistani obviously sharpens the focus, although, as is accepted, it is not a condition of such an allegation that the Claimant belong to the racial group abused.
23. We were asked by both parties to consider the context. After all, as Lord Steyn said "in law context is everything": R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 at paragraph 28. Once the context is seen in which the allegations are made, in our judgment the Tribunal's finding of fact that there was abuse directed to the Claimant is properly made out. The phrases "You Pakistanis are all the same" and "You Muslims are all troublemakers" obviously are related since they form part of the Claimant's grievance and are illustrations of his complaint of derogatory remarks against Pakistanis. Given that 90% of Pakistanis are Muslims and given that the maker of the statement considers that all Muslims are troublemakers, it follows that a Pakistani who is a Muslim is a troublemaker. That is abuse, it is derogatory and it owes its basis to the racial group of those of Pakistani national origin.
24. The Claimant was found to have had the abuse directed to him, plainly correct in view of the vocative case of both of the illustrations, addressing him as "you". There can be no doubt that the Claimant suffered distress - he said so in his letter of grievance, indicating that he had been subject to hostile, insulting or humiliating treatment. There could be no doubt that the Respondent knew that a claim was being made of race discrimination, for there is express reference invoking the Respondent's own procedure for handling such matters. The elements of the Act are made out and the test suggested by Mr Onifade (para 13 above) is met.
25. The findings by the Tribunal indicate, therefore, a sound basis for its finding that there was abuse of the Claimant as a person of Pakistani national origin. That there may have been religious abuse which could be the subject of a complaint if it occurred today, does not diminish the force of the finding, which was specifically in relation to Pakistani national origin. The Tribunal has correctly applied the law to a finding which it was permissible for it to make. All of the essential elements for a claim of victimisation were, therefore, made out.
26. We would also like to thank Mr Stevenson for his helpful written and oral submissions in addition to the thanks we have given to Mr Onifade. We will dismiss the appeal.