United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CEDRIC de LISSER (of Counsel) Instructed by: Messrs Rae & Co Solicitors 2c Trinity Street London SE1 1DB
For the Respondent	MR PAUL ROSE (One of Her Majesty's Counsel) Instructed by: Messrs Blake Lapthorn Tarlo Lyons Solicitors Kings Court 21 Brunswick Place Southampton Hampshire SO15 2AQ


 


SUMMARY

Race discrimination

The burden of proof in section 54A of the Race Relations Act 1976 does not apply to cases of direct discrimination on the grounds of nationality or colour. In such cases the less stringent burden of proof set out in King v Great Britain - China Centre [1992] ICR 516 and Anya v University of Oxford [2001] ICR 847 applies.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting at London (Central) in August and September 2006. The Judgment and Reasons were sent to the parties and entered in the Register on 10 October 2006. The Chairman was Mr C A Carstairs and the members were Mrs A D Hills and Miss M A E Ebenezer.
2. The Employment Tribunal unanimously dismissed the Claimant's complaints of direct race discrimination, unpaid wages, unpaid holiday pay and notice pay.
3. The Appellant was represented by Mr Cedric de Lisser and the Respondent by Mr Paul Rose QC. We are grateful to both of them for their oral and written submissions.

History

4. By a claim form received at the London (Central) Employment Tribunal on 13 March 2006 Mr Okonu made the claim set out above. The form ET1 is at EAT bundle pages 37-48. The claims were contested. The form ET3 is at EAT bundle pages 49-56.
5. At a preliminary hearing before a different panel of the EAT on 19 April 2007 the Notice of Appeal was amended. The extant grounds of appeal are now (a) paragraphs 51-56 of the original Notice of Appeal: EAT bundle pages 34-35 together with a single ground of appeal (the "fragmentation" ground of appeal) which is at EAT bundle page 36. That latter ground of appeal was in substitution for grounds 12-50 of the original Notice of Appeal. All other grounds of appeal were dismissed.

The Employment Tribunal's Reasons

6. The Employment Tribunal Judgment and Reasons is in conventional form. Paragraphs 1.1-1.7 sets out the issues and paragraphs 1.8-1.9 deal with the way in which the Employment Tribunal proceeded with the hearing. Paragraphs 2.1-2.9 deal with the documentary evidence and the witnesses heard by the Tribunal and makes findings on credibility. Paragraphs 3.1-3.52 make findings of fact. Paragraphs 4.1-4.9 set out the relevant law and paragraphs 5.1-5.32 set out the Employment Tribunal's conclusions.
7. The findings of fact are incorporated into this judgment. The Appellant does not argue that the Employment Tribunal made findings of fact in the absence of evidence.

The grounds of appeal

8. Mr de Lisser helpfully made his submissions under three grounds of appeal, we take each in turn.

Ground 1: Classification of race discrimination alleged by Claimant

9. This ground of appeal is set out in paragraphs 55-56 of the original grounds of appeal: EAT bundle pages 34-35. Mr de Lisser submits that the Employment Tribunal were in error in considering the Appellant's complaints of direct race discrimination only on grounds of (a) ethnic and national origin, as a black African and of Nigerian origin respectively and (b) of colour.
10. The Employment Tribunal separated out the two issues paragraph 5.1 of its Reasons and then first dealt with the alleged ground of discrimination being ethnic and national origin in paragraph 5.2 of its Reasons. Its rejected this head of discrimination in that paragraph and it said this:

"5.2 The Tribunal considered the issue first on the basis of the alleged ground for discrimination being ethnic and national origin. The Claimant would have to show that he had been treated less favourably than a real or hypothetical comparator of a different ethnic or national origin to the Claimant. It would be for the Claimant to prove such matters from which the Tribunal could conclude that the treatment was on the grounds of his ethnic or national origin. However, this does not appear to have been the basis on which the Claimant believed he had been treated. He has been clear in his grievance letters and in what he said at meetings that he believed that the "shabby treatment" to which he had been subjected was because of his colour. There was no evidence before the Tribunal to suggest that the treatment had anything to do with his ethnic or national origin. Accordingly, the Tribunal has concluded that the Claimant has not proved facts from which the Tribunal could conclude that the treatment was on either of those grounds."

11. The Employment Tribunal then went on to consider the complaint of race discrimination with reference to the alleged ground of discrimination being colour: Reasons paragraph 5.3. It then went through the allegations of discrimination on the grounds of colour in paragraphs 5.5-5.30 of its Reasons and rejected each one in turn: EAT bundle pages 18-23.
12. The Employment Tribunal considered a variation of ground 1 in paragraph 5.4 of its Reasons which says this:

"5.4 Before going further, the Tribunal should note that it considered Weathersfield. Mr de Lisser had submitted that Weathersfield was authority for the proposition that there was no need to establish an exact race in respect of a comparator. The Tribunal does not understand the judgment of the Court of Appeal to be to that effect. The issue in Weathersfield was that the claimant had been instructed to tell "any coloureds or Asians" who wished to hire a rental vehicle that there were no vehicles available. It was held that the employee was being required to carry out a racially discriminatory trading policy so that any treatment on that basis amounted to treatment of her on racial grounds."

Ground 2 appears to us to be wider than the submission made to the Employment Tribunal as recorded by it but we consider it on the merits. In essence Mr de Lisser submits that there is a lacuna in the case law. He asks the question:

"How is a claimant to classify which category of race discrimination he or she falls under?"

He says that it is irrelevant that the Claimant thinks he is being discriminated against on a particular ground because a reading of section 1(1)(a) and section 3(1) of the Race Relations Act 1976 does not require the Claimant to specify which of six racial grounds named in section 3(1) of the 1976 Act in order to prove direct discrimination on racial grounds under section 1(1)(a) of that Act. He further submits that in these circumstances a Respondent will not be at a disadvantage.

13. Mr Rose submits that this is wrong for a variety of reasons: see his skeleton argument paragraphs 10-17.

Employment Tribunal decision

14. We agree with Mr Rose. In our judgment it is essential that the Employment Tribunal hearing a direct discrimination case (or any employment case) must be able to identify the issues which it has to hear. It is common for an Employment Tribunal to do this either at a pre-hearing review or at a directions hearing or at the beginning of the substantive hearing. It must do so for the following reasons:

(a) Colour as opposed to national origin are different, Colour may be white or black or brown while national origin may be African, Afro-Caribbean, Indian etc, Mr Rose helpfully gave the instance of a Sikh. Such a person may be discriminated against on grounds of (1) colour (2) nationality (India or Pakistan) (3) ethnic origin or (4) religion. It is essential that the Tribunal is able to identify the category at the beginning of the substantive hearing if not before;

(b) The category into which a person who claims direct race discrimination falls under informs the definition of the comparator. The existence of an actual or hypothetical comparator is essential for a claim for direct race discrimination: Race Relations Act 1976 section 1(1)(a);

(c) The Respondent needs to know the case it has to meet;

(d) If the Claimant is not clearly or entirely aware of any particular ground upon which he has been discriminated against then he can plead all or most of the categories in section 3(1)(a) of the 1996 Act. The matter will (as it did in this case) then become clear as the evidence progresses;

(e) We agree with the Employment Tribunal in paragraph 5.4 of its reasons that Weathersfield Ltd v Sargent [1999] ICR 425 does not support Mr de Lisser's submissions. That case concerns an instruction to a white employee of the Appellant who refused to rent vehicles to "any coloureds or Asians". She resigned and claimed constructive dismissal. Her complaint of unlawful discrimination on the grounds of race pursuant to sections 1(1)(a) and 4(2)(c) of the 1976 Act was upheld by the Court of Appeal. The Appellant's argument in that case essentially was that the 1976 Act did not apply to the Respondent because she was white: that argument was rejected on the construction of the relevant part of the statute. The issue flagged up in this ground of appeal by Mr de Lisser was not argued in that case.

15. Finally, we note that Mr Okonu's case was direct discrimination on the grounds of Nigerian national/ethnic origin and/or the colour of his skin: see Mr de Lisser's skeleton argument before the Tribunal paragraph 9 EAT bundle page 66.

Ground 2: Section 54A of the Race Relations Act 1976

16. The Employment Tribunal dealt with this in the following passages:

"5.1 Having regard to the provisions of section 54A of the Relations Act 1976, it is apparent that the new provisions relating to the formal transfer of the burden of proof apply only, so far as is relevant, to complaints involving discrimination on the grounds of race or ethnic or national origin. The Claimant's complaint falls into two parts so far as the racial grounds are concerned, on the one hand ethnic and national origin, as a black African and of Nigerian origin respectively, and on the other hand colour.

…

5.3 The Tribunal therefore went on to consider the complaint of race discrimination with reference to the alleged ground of discrimination being his colour. As indicated above, the Tribunal had regard to the guidance provided in King as tempered by the guidance in Anya."

17. The references are of course to the well known cases of King v Great Britain-China Centre [1992] ICR 516 and Anya v University of Oxford [2001] ICR 847. It is clear that the Employment Tribunal itself referred the parties to those two cases: reasons paragraph 4.9.
18. Mr de Lisser submits that as section 54A of the 1976 Act was introduced into law in order to implement Council Directive 2000/43/EC then it should be purposefully interpreted so as to cover each of the separate racial grounds contained in section 3(1) of the 1976 Act and not restricted to race or ethnic or national origins alone.
19. Section 54A of the Race Relations Act 1976 was inserted by the Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003 No.1626, Regulation 41 as from 19 July 2003). Section 54A provides as follows:

"(1) This section applies where a complaint is presented under section 54 and the complaint is that the Respondent -

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a),(e) or (f), or Part IV in its application to those provisions, or

(b) has committed an act of harassment.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this section, conclude in the absence of an adequate explanation that the Respondent-

(a) has committed such an act of discrimination or harassment against the complainant, or

(b) is by virtue of section 3(2) or 3(3) to be treated as having committed such an act of discrimination or harassment against the complainant,

The Tribunal shall uphold the complaint unless the Respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

20. This section shifts the burden of proof in certain discrimination claims and there is clear guidance as to its application in Igen Ltd v Wong [2005] IRLR 258; Laing v Manchester City Council [2006] IRLR 748; Madarassy v Nomura International Plc [2007] IRLR 246 and Brown v London Borough of Croydon and Another [2007] IRLR 259.
21. Mr de Lisser refers us to paragraphs 3, 9, 14 and 20 of the Preamble to the Directive as well as to Articles 1, 8 and 16. He submits that these provisions indicate a broad application of the principle of equal rights. He further submits that there is no distinction in EU jurisprudence between in racial or ethnic origin on the one hand and colour on the other. In this case the Employment Tribunal made an error of law by drawing such a distinction and not applying section 54A of the 1976 Act to the claim of direct discrimination on the grounds of colour and it follows that it was a further error of law to only apply the King and Anya line of authorities.
22. Mr Rose submits that the answer to ground 2 is twofold. First, he submits that this point was not in fact argued before the Employment Tribunal at all and should not therefore be raised here in the EAT. Second, he submits that the answer in any event lies in the correct construction of section 54A on normal principles of statutory interpretation: the words mean what they say they mean.

EAT decision

23. We agree with Mr Rose for the following reasons:

(a) It is now quite clear that there is a two tier system in place for proof in race discrimination cases. The first is that found in section 54A of the Race Relations Act 1976 in cases of race or ethnic or national origin: see section 54A(1)(a). Second, there is the less stringent standard for proof set out in King and Anya. In cases of direct discrimination this applies to cases of nationality or colour discrimination. That is the construction argument;

(b) The reason for this is found in the domestic legislation itself. Parliament decided to implement Council Directive 2000/43/EC by statutory instrument rather than primary legislation. As we have indicated in the case of the new section 54A of the Race Relations Act 1976 the amendment was inserted by the Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003 No.1626, Regulation 41). Unlike primary legislation a statutory instrument made under the European Communities Act 1972 can go no further than is required by the EU legislation which it is intended to implement. Thus the 2003 Regulations could not, and do not, cover race discrimination complaints brought on grounds of colour or nationality. This means that the new definitions of indirect discrimination and harassment, the shift in the burden of proof and the new provisions relating to the genuine occupational requirement exception will apply only to discrimination on the grounds of race, ethnic or national origin and not to colour or nationalities. Whether that is desirable is not for this Tribunal to say. We note that the same view is taken by the Editors of Harvey on Industrial Relations and Employment Law volume 2 at paragraph 1138 and by the Editor of the Industrial Relations Law Reports in an Article in Equal Opportunities Review: EOR No.119/July 2003 page 20;

(c) That was quite clearly the view of the Government during the debate on the 2003 Regulation in the House of Lords: Hansard House of Lords 11 June 2003 in a passage cited in Mr Rose's skeleton argument;

(d) Council Directive 2000/43/EC cannot be of direct effect in this case because the Respondent is not an emanation of the State. If the Directive is an interpretive aid only then it cannot assist the Appellant in this case. The language of section 54A(1)(a) is crystal clear. No amount of purposive construction can override the clear words used in section 54A(1)(a) and insert the words "colour" and "nationality" in that paragraph;

(e) Furthermore, the Employment Tribunal did examine each ground and conclude that the Claimant had not proved his case of direct discrimination on the grounds of colour. At the beginning of the hearing the Chairman wanted the Claimant to identify the grounds of his claim. He did so on the sole grounds of colour and/or nationality or ethnic origin: see Reasons paragraph 2.7; 5.2 and Mr de Lisser's skeleton argument for the Employment Tribunal paragraph 9: EAT bundle page 66. The Employment Tribunal found that there was no evidence given by the Claimant himself which suggested direct discrimination on the grounds of ethnic or national origin and therefore ruled it out: Reasons paragraph 5.2. It therefore quite correctly concentrated on direct discrimination on the grounds of colour and proceeded to deal with that in great detail: Reasons paragraph 5.5-5.30;

(f) Finally, we accept Mr Rose's submission that even if he was wrong about the burden of proof (which we have found him not to be) then on the facts it would have made no difference. In other words the Tribunal was entitled to ask itself the "why question": why was the Claimant treated in the manner complained about. See Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 paragraphs 7-12 per Lord Nicholls; Laing v Manchester City Council [2006] IRLR 748 at paragraph 74-77 per Elias P and Brown v London Borough of Croydon [2007] IRLR 259 at paragraphs 36-41 per Mummery LJ.

24. Mr Rose helpfully analysed each of the complaints made by the Claimant before the Tribunal and convincingly explained why each of them was properly dealt with: see his skeleton argument paragraphs 26-33. We adopt it.

Ground 3: the fragmentation approach

25. Mr de Lisser submits that the Employment Tribunal failed to have regard to the evidence and its findings as a whole but adopted a fragmented approach to the evidence by examining each allegation in isolation. Had it considered the evidence and findings as a whole it would have found for the Claimant: EAT bundle page 36.
26. Mr de Lisser relies upon the decision of this Tribunal in Qureshi v Victoria University of Manchester [2001] ICR 863 and especially at 873C-876B per Mummery J.
27. In essence Mr de Lisser's submission was that there was a failure by the Employment Tribunal to look at the background facts which it had found in its fact finding and it should have referred to those in its conclusions and not just to the pleaded examples of discrimination which it did deal with in paragraphs 5.5-5.30 of its reasons. Mr Rose submitted the contrary.

EAT decision

28. The Employment Tribunal approach is set out in paragraphs 1.8-1.9 of its Reasons where it says this:

"1.8 In Mr de Lisser's supplementary skeleton document, Mr de Lisser suggested that "to limit consideration of the complaint of race discrimination solely to the secondary issues, as specifically pleaded in the ET1, would be an over-formalistic approach, inappropriate to the Employment Tribunals". The Tribunal has noted that the issues were originally set out in the Claim Form; they were subsequently agreed at a Case Management Discussion; there were amendments permitted at the start of the hearing of this claim and a list of the issues and the amendments was provided to the parties. Mr de Lisser does not appear to be making a further application for an amendment and certainly did not do so in his oral submissions to the Tribunal.

1.9 The Tribunal can take all relevant evidence into account; however, matters which are not strictly speaking within the issues will only be taken into account by way of background to assist the Tribunal in drawing any inferences that it is proper for the Tribunal to draw. The Tribunal disagrees with Mr de Lisser's characterisation of this process as being an "over-formalistic approach". The purpose of the Claim Form is to inform the Respondent and the Tribunal what complaints are being made. It does not have to be written in a legal manner, in the same way as pleadings in the High Court for example, but it is essential that it is clear what complaints are being made. Such complaints can be varied by amendment. However, once the matter comes before the Tribunal and after any amendment applications are dealt with, the Respondent is entitled to know precisely what complaints it is defending; this is essential for the purposes of achieving a fair trial in accordance with Article 6 of the European Convention on Human Rights. In addition, Regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 provides that the overriding objective of the Tribunal's rules is to enable Tribunals to deal with cases justly and there is an express obligation placed on the parties by Regulation 3(4) that they shall assist the Tribunal to further the overriding objective. Accordingly, once the issues are clear and agreed, the Tribunal cannot simply extend the scope of the case beyond what the Respondent is expecting to defend."

29. However, the matter does not end there. In our judgment Mr de Lisser has misunderstood what the Employment Tribunal actually then did. The facts found by the Employment Tribunal in paragraphs 3.1-3.52 of its Reasons are either neutral as to direct race discrimination on the grounds of colour or (b) the Respondent has given an explanation for treating the Appellant in the way that it did. There are therefore no adverse findings of fact against the Respondent in those paragraphs of the Reasons. Mr de Lisser's second skeleton argument pages 15-16 purport to set out a number of facts found by the Tribunal which should have led the Employment Tribunal to draw an inference of direct discrimination on the grounds of colour. As Mr Rose pointed several of those examples are not a full citation of the actual finding of fact made by the Employment Tribunal or alternatively that they were properly discounted by the Employment Tribunal as either fact neutral and not requiring an explanation from the Respondent or the explanation given by the Respondent was a reasonable one and was accepted by the Employment Tribunal. We agree with Mr Rose and find nothing in the findings of fact set out by Mr de Lisser pages 15-16 of his skeleton argument which show that the Employment Tribunal made an error of law in not drawing an inference of direct race discrimination on the grounds of colour against the Respondent.
30. In short the Employment Tribunal did not apply a fragmented approach. It set out its approach in paragraphs 1.8-1.9 of its Reasons, made all necessary findings of fact and finally formed its conclusions upon the specific allegations of direct discrimination on the grounds of colour made by the Claimant in the case. These are clearly set out in paragraph 1.2-1.37 of the Reasons.

Conclusion

31. For these reasons the appeal is dismissed.