HIS HONOUR JUDGE McMULLEN QC
1.
This case is about race discrimination in its direct sense, and in its
sense relating to harassment. It also concerns the compromise of proceedings
in an Employment Tribunal. It is the Judgment of the court to which all
members, appointed by statute for their diverse specialist experience, have
contributed. We will refer to the parties as the Claimant and the Respondents,
except where more detailed reference is made.
2.
Visible Changes Limited is the corporate Respondent. It is now in
liquidation. Mr David Wood, the Second Respondent, is the leading
light. Ms Susan Ward is an employee but she was, by case management
orders before this appeal, excused on the Claimant seeking no remedy against
her.
Introduction
3.
It is an appeal by the Claimant in those proceedings, against the Judgment
of an Employment Tribunal chaired by Employment Judge Hobson, sitting
at Watford over four days and sent to the parties on
21 January 2011. Mr Peter Ward and
Mr Kevin McNerney, both of counsel, appeared respectively for the
Claimant and the Respondents throughout. So far as is relevant to the appeal,
the Claimant made claims of race discrimination arising out of four events and
of sex discrimination out of one (the fourth of those). She succeeded in
respect of claims under the third and fourth events, but failed on the first
two.
4.
The Tribunal rejected a contention that the first, second, third and
fourth events were all a continuing act of race discrimination and therefore
were in time, for the Tribunal held that claims in respect of the first two events
were out of time and discretion would not be exercised to enlarge time. The
Claimant therefore substantially succeeded at the Tribunal although, it has to
be said, her claims were wider than that.
5.
The issues before the Employment Tribunal were set out in a CMD conducted
by Employment Judge Ryan as follow:
“4. Whether the respondent did some or all of the following:
(a) in April 2009 Dave Wood refer to
a complainant as a ‘fucking immigrant’;
(b) in May 2009 heated conversations
took place in the office in which employees referred to ‘all fucking illegal
immigrants’ coming into the UK and claiming benefits for the families;
(d) in June 2009 Dave Wood asked why
white girls like black men, and laughed;
(g) on 14 July 2009 Dave Wood
truthfully claims to the claimant that ‘we often joked about why black men big
cocks’; and
5. Did some or all of the acts alleged comprise an event act
extending over a period or, if not, whether it would be just and equitable for
the tribunal to extend time to have jurisdiction to determine any such
allegations as are out of time.
6. Did such acts as the tribunal may find occurred amounts to
less favourable treatment of the claimant on the grounds of race and/or
unwanted conduct amounting to harassment on grounds of race?
[…]
8. If proven, was the allegation at (g) unwanted conduct
amounting to harassment on grounds of sex?”
6.
The Employment Tribunal decided in the Claimant’s favour in respect of
the third and fourth events. The parties came to terms after the Judgment was
announced, which were not disclosed to the Employment Tribunal. They are
embodied in a manuscript note, signed by both counsel. It is common ground
that this is not a compromise contract, sufficient to restrict the Claimant’s
rights under the Race Relations Act, for it lacks certain
statutory particulars. The gist of it was that the Claimant would be paid
£10,000 and take the matter no further.
7.
The Claimant appeals against the unfavourable parts of the Judgment.
There is no cross-appeal.
8.
There is, however, a Respondent’s answer, contending that the agreement
is sufficient to debar the Claimant from enforcing any rights in the EAT.
Mr McNerney accepts that she is not precluded by this agreement from
pursuing claims for remedy in the Employment Tribunal, notwithstanding the fact
the Tribunal noted that there was a settlement. That is because of the failure
to meet the technical specifications set out in s.72(1) and s.72(3) of the Race Relations Act
1976, and s.4A, relating to compromise contracts. His position is that
while the Claimant does have access to the Employment Tribunal, effectively for
a remedy, notwithstanding the terms of the settlement, she is debarred by
ordinary contract terms, from pursuing an appeal in the EAT.
9.
On the substance, the Respondent contends that the Tribunal reached a conclusion
which was open to it on continuing act, although Mr McNerney accepts that there
are errors of law in three places in the Judgment to which we will turn.
The legislation
10.
The relevant provisions of the legislation are not in dispute. The gist
of them is set out by Judge Ryan in his order. The Employment Tribunal
did not set out the relevant statutes but noted that it had been referred to
the detailed submissions in writing by both experienced counsel.
11.
The legislation, as it was at the time, provides that it is unlawful to
give less favourable treatment to a person on the grounds of race (see s.11A).
Harassment is unwanted conduct on the grounds of race, which has the purpose or
effect of violating her dignity of creating an intimidating, hostile,
degrading, humiliating or offensive environment. It should be regarded as
having that effect only if, having regard to all the circumstances,
particularly including the Claimant’s perception, it should be reasonably
considered as having that effect (see s.3A). Identical provisions apply in
respect of the Sex Discrimination Act 1975 but, as noted
above, the claim for direct sex discrimination is not available in this case
but only of harassment.
12.
Procedurally, the matters as to compromise of a race discrimination
claim are set out in s.72 of the 1976 Act which says this:
“(1) A term of a contract is void where-
[...]
(b) it is included in furtherance of an act rendered unlawful
by this Act; or
[...]
(3) A term in a contract which purports to exclude or limit any
provision of this Act is unenforceable by any person in whose favour the term
would operate apart from this subsection.”
13.
Section 4A deals with compromise, and it is necessary to say no more about
it, since it is common ground the agreement fails to meet the test. Thus, any
terms within it would be void.
The facts
14.
As can be seen from Judge Ryan’s clear directions, there are now on
appeal four relevant issues, two of which are live as appeal grounds. She was
born in the United Kingdom in 1968. Both her parents are from Jamaica. Her ancestry is mixed racially, and she regards herself as Afro-Caribbean. She
was employed by this small business on 8 September 2008 as an office
manager.
15.
The Respondent is a limited company where both the Second Respondent,
Mr Wood, and his wife worked. Its main activity is building playgrounds
for children. There are 20 to 25 employees. There was an employee handbook.
Nobody knew anything about it. It was kept in people’s drawers. Nobody
received any awareness training or equal opportunity training.
16.
What we will call the four index events occurred in April, May, June and
July 2009. The Tribunal described them as follows:
“2.13 In
evidence, the Claimant alleges that in April 2009, when she was contacted
on the telephone by a man who complained that employees of the First Respondent
had shouted racial abuse at him, she informed the Second Respondent,
Mr Wood, of this on his mobile, to which he said “I know, I have dealt
with it. The man is a fucking immigrant”. Mr Wood denies this but the
Employment Tribunal accepts the Claimant’s evidence that it did occur.
2.14 The
Claimant then complains that in May 2009 colleagues in the office,
including Tanya Wilson and the Third Respondent were saying things like
“All fucking illegal immigrants come here to claim from the government and
sponge from the system”. When cross examined, Susan Ward, the Third
Respondent, whilst denying that she had ever said “fucking illegal immigrants”,
confirmed that she could remember a conversation when Tanya Wilson had
used strong language and that she and others had agreed with the proposition
expressed about illegal immigrants.
2.16. The
Employment Tribunal finds that in June 2009 the Second Respondent,
Mr Wood, in the Claimant’s presence at the office, made the remark “Why is
it that white girls like black men?”. He laughed. The Tribunal accepts that
the Claimant found this extremely offensive and upsetting and that the remark
was made by Mr Wood.
2.23 The
Employment Tribunal find that paragraph 2 of page 62bd does reflect accurately
what occurred and that at the meeting, the Second Respondent, Mr Wood, did
make a comment to the claimant. “Yeah, I often joked about why do black men have
big cocks”. Susan Ward heard this remark and, as she agreed in answer to
questions from the Tribunal, she accepted and agreed that Mr Wood had said
things that were not relevant to the discussion about redundancy, but which
were “a more personal discussion”. Mrs Ward told the Tribunal that
Mr Wood could have said that he had “brain farts” as is recorded in the
note, but added that she would have recalled if Mr Wood had mentioned “big
cocks”.”
17.
The Tribunal came to conclusions in respect of those events, and we will
reproduce them in full because they have been the subject of intense discussion
before us.
“4(a) The
statement by the Second Respondent, Mr Wood, about a complainant who was a
target for racial abuse - “the man is a fucking immigrant” - the judgment of
the Employment Tribunal is that the Claimant’s claim of race discrimination
fails. Mr Wood did not refer to the Claimant, albeit that he used
insulting and inappropriate language about immigrants. The Employment Tribunal
finds that the comment by Mr Wood shows a mindset of Mr Wood
regarding immigrants as being inferior and not really worthy of respect and
also an ability by Mr Wood to make very poor choice of words. However, he
did not discriminate or harass the Claimant on the ground of her race. She is
not an immigrant. The Claimant was undoubtedly offended by what was said. In
any event the judgment of the Tribunal is that this claim is out of time and
there are no grounds to extend time on the basis of it being just and
equitable.
4(b) The
discussion in the office which took place - Tanya Wilson and probably
other staff including the Third Respondent, did express strong views about
“fucking immigrants” but again this was not race discrimination or harassment
of the Claimant. The claim fails and is dismissed. In any event the claim is
out of time and again there are no grounds to extend time on the basis of it
being just and equitable.
4(d) June 2009
concerning the remark by Mr Ward “Why is it that white girls like black
men?” and laughed - it is the unanimous judgment of the Employment Tribunal
that this was a highly offensive racist remark in the presence of the Claimant
and amounts to harassment. The remark by the Second Respondent, Mr Wood,
goes to the core of his attitude and his complete failure to observe any of his
own procedures and equal opportunities policies. The Employment Tribunal has
accepted the Claimant’s evidence. The claims against the First and Second
Respondents of race discrimination by harassment are upheld. Regarding the
question of whether the claim is in time, evidence is that this incident
occurred in June 2009. If the incident was after 6 June 2009 it
is within the three month time limit. In any event, if the incident was prior
to 6 June, the unanimous judgment of the Employment Tribunal is that it is
just and equitable to extend the time limit to give the Tribunal jurisdiction.
The incident was part of a sequence of events. The act is linked with and
reflects a continuous state of affairs so far as the Second Respondent,
Mr Wood, is concerned in relation to remarks that he made to and in the
presence of the Claimant.
4(g) The
Claimant’s claims of discrimination and racial and sexual harassment against
the First and Second Respondent are upheld. As in the case of the allegations
under paragraph 4(d) above, the conduct of Mr Wood during the meeting on
14 July was, undoubtedly, unwanted by the Claimant. Mr Woods’
conduct as complained of was on the grounds of the Claimant’s race and ethnic
origin and on the grounds of her sex. The denial by the Second Respondent is
rejected. The conduct of the Second Respondent did have the purpose of
violating the claimant’s dignity or of creating an intimidating, hostile,
degrading, humiliating or offensive environment for the Claimant. It is the
unanimous judgment of the Employment Tribunal that the Claimant’s claims of
racial and sexual harassment against the First and Second Respondents are
upheld.”
18.
Indirectly relevant is a reference to a further claim which was dismissed,
where the Tribunal says there was no discrimination against the Claimant on the
ground of her race (see paragraph 4(e)).
The Claimant’s case
19.
What the Claimant seeks in this case is to bolt on the two unsuccessful
index events to the two successful ones, so that she may go back to the
Employment Tribunal, the Tribunal knowing now, of course, that £10,000 has been
paid, and seek an increase above that figure. That is the purpose of today’s
appeal.
20.
The Claimant contends that the Tribunal did not make findings on
continuing act as prescribed by Judge Ryan’s order, but only on what is
just and equitable. For the purposes of the appeal, she does not contest the
finding that it was not just and equitable to extend time in her favour. What
she does contend is that events 1 to 4 are part of a continuing act.
21.
The time for bringing a claim under the statute is three months, unless
an act continues over a period of time, in which case it is three months from
the last relevant event, if there is a series of events or from the ending of
the regime in question. In this case, the mindset of Mr Ward, and the
failure of the corporate Respondent to carry out and implement its equal
opportunities policy, was a continuing act at all times in place. Support is
to be found in the Judgment in favour of the Claimant in respect of index event
3, the June event.
22.
Mr Ward contends that the Tribunal erred in failing to take the
broad approach to claims under the Race Relations Act. It is
often forgotten that this is broader than simply protecting a person on the
grounds of her race. For the purposes of a claim, the actual race of any
person is irrelevant if it is made in the broader sense. If the Claimant’s
case succeeds, Mr Ward contends that there is sufficient material here for
the EAT to make a decision without it being necessary to send it back to the
Employment Tribunal.
The Respondent’s case
23.
On behalf of the Respondents, Mr McNerney contends that the
Tribunal made the correct decision and that it did not overlook the findings as
to continuing act. He contends that the first two index events are not
race-specific, yet he concedes that being an immigrant is a racial group within
the Act. He concedes that this was offensive abuse, but it is not by reference
to the Act.
24.
He contends that if we are against him, the only place this can be
determined is before the Employment Tribunal again. The Tribunal was referred
in detail to the statutory provisions in the written submissions of both counsel
and insofar as it may be said that the Tribunal did not cite the law, it did so
by incorporating by reference the submissions of counsel.
The legal principles
25.
The legal principles to be applied in this case fall into two parts. As
to the substantive law, it is plain that a series of Judgments of the Court of
Appeal indicate that on racial grounds is wider than on the grounds
of his race (see for example Redfearn v Serco Ltd [2006] IRLR 623, Weathersfield Ltd v Sargeant
[1999] IRLR 94 and Thomas and Others v Robinson
[2003] IRLR 7).
26.
The law on harassment, applying both to sex and race claims, is as we
have summarised above, by reference to the statute. As to the procedural
matters, s.72 deals with the compromise of claims to Tribunals. Appeals from
an Employment Tribunal lie to the EAT under s.21(1) of the Employment Tribunals Act,
which covers both decisions of, and any matters arising in, an Employment
Tribunal.
27.
The Employment Tribunals Act 1996 also
provides the procedural mechanism for the adjudication of rights arising under
the Race Relations Act. The doorway is opened by the latter
Act for a complaint to be made to an Employment Tribunal under the former, and
the trial of the case is at the Employment Tribunal.
Discussion and conclusions
28.
We prefer the submissions of Mr Ward. We will start in reverse
order, because this is uncontroversial. The July event is accepted to be both
race discrimination and race and sex harassment. There is no challenge to the
fact that the use of the words in front of the Claimant constitute all three of
those statutory torts. The Tribunal uses, on three occasions in this Judgment,
the phrase “on the grounds of the Claimant’s race”. In our judgement that is,
first, to fail to carry out the task Judge Ryan set for it and, secondly,
is wrong, because it is plain that the race of the Claimant was not the central
element in this case but the comments of Mr Wood which are of a racist
nature.
29.
It does not matter what racial group the Claimant comes from, for she is
entitled to be offended and to bring claims where she suffers as a result of any
discriminatory language and conduct. Given the Tribunal found unimpeachably in
favour of the Claimant on those matters, which started with the language used
by Mr Wood, why does that not apply further back? In the Judgment itself,
it is plain that this is a reflection of Mr Wood’s ongoing approach to
race.
30.
The finding on event 3, the June event, is also a reflection on what is
at the core of Mr Woods’ attitude on any of these matters and, again, the
Tribunal found in favour of the Claimant. This is a race discrimination claim,
and a claim for harassment. Again, the racial group of the Claimant was
irrelevant.
31.
As we will show, when we look at index event 1, the Tribunal was
inconsistent. The words used by Mr Wood “why is it that white girls like
black men?” in index event 3 and, in similar terms, in index event 4, were held
to be race discrimination notwithstanding that the Claimant is not a white
girl. That may be obvious, since the statute protects a person against
discrimination on the grounds of race, and not on the grounds of her race. The
Tribunal came to the conclusion that this was completion of the statutory torts
of race discrimination and racial harassment, in respect of event 3.
32.
The Tribunal looked at whether it was in time. It decided that if this event
3 in June had occurred prior to 6 June it would, of itself, be out of time
but it was just and equitable to extend time. No point is taken by the
Respondents against that finding. What is important is that the Tribunal went
on to say that the incident was part of a sequence of events, linked to a
continuous state of affairs. These were remarks Mr Wood made to and in
the presence of the Claimant. Here the Tribunal had no difficulty in applying
the continuing act jurisdiction.
33.
Its presentation of the law in paragraph 4.1 refers to extension of time
being just and equitable, and Mr McNerney contends that that shows the Tribunal
being alert to the jurisdiction on continuing acts. If that is so, the
Tribunal has made a finding on this and so, at the very least, there is a
continuing act as between the June and July events.
34.
We turn then to the subject of the appeal which is the April event.
Here, the Tribunal committed the same error. It uses the phrase “on the ground
of her race”. That is to misconstrue the tramlines of Judge Ryan and to
make no finding on the wider ground of her claim. It may be for that reason
that it makes the obvious solecism. It says “she is not an immigrant”. She does
not have to be an immigrant to complain of language used of a customer that he
is a “fucking immigrant”. The Tribunal failed to apply the correct statutory
test.
35.
Given Mr McNerney’s concession that being an immigrant is in a
racial group, this is plainly language of a racial nature which is
discriminatory as against immigrants. The Tribunal had no difficulty in fixing
Mr Wood with the view that immigrants are inferior and unworthy of
respect, and that comment upset the Claimant.
36.
This, therefore, is a straightforward claim under the Weathersfield v Sargeant jurisdiction, and the Tribunal was wrong not to apply
the broader approach to racial grounds. The Tribunal ought then to have
considered whether this was a continuing act to be bolted on, on this footing
to the in-time continuing act spanning the June and July events. The
Tribunal did not make a finding on that either. It simply said the claim was
out of time.
37.
In our judgement, this was a simple answer for the Tribunal to give.
Having decided that Mr Wood made those remarks to or in the presence of
the Claimant, which were events of race discrimination and racial harassment in
June and July, it is hard to see why it would not consider the April event to
be part of that regime. We accept Mr Ward’s point that, at least in
respect of these three matters, they are all the same. They are all of language
demonstrating the contempt Mr Wood had for people of different racial
groups, said in the presence of the Claimant.
38.
They are also illustrations of the failure by the Respondent, and by
Mr Wood, to pay any attention to the equal opportunities policy which it
said it had. This is indeed, to use Mummery LJ’s language in Hendricks v Commissioner of Police for the Metropolis [1996] IRLR 96, a continuing state of affairs.
39.
Then we turn to the second index event, of May. Given that
Mr McNerney does not challenge the view that immigrants are a racial
group, the fact that they are now “fucking illegal immigrants” goes no way to
take the sting out of the remark. The difficulty for Mr McNerney is that
the findings which we have cited above at 4(b), are de jure and can only
be understood by reading paragraph 4(a). Since we are against him on paragraph
4(a), and have found error in the Tribunal Judgment, it follows that we do the
same in respect of 4(b).
40.
It is to be noted that the original formulation of index event 2 was as
to a conversation about “fucking illegal immigrants who come here to claim from
the government and sponge from the system” but what survives is the finding
that staff, including the Third Respondent, expressed strong views about
“fucking immigrants”. That is precisely the same language as was found to have
been uttered by Mr Wood and so, faithful to Mr McNerney’s adoption of
4(a) in support of 4(b), it must sink with it. These, then, are errors. We
hold that the Tribunal failed to carry out its duties and has made errors of
law.
The agreement
41.
We turn then to the adjectival criticism of this case. Has it been
stopped in its tracks by the agreement reached? The simple proposition
advanced by Mr Ward is that the term in the agreement, which precludes the
Claimant pressing on with her race discrimination claim, is void.
Mr McNerney accepts that it is, insofar as the Claimant may now still go
to an Employment Tribunal. Why can she not come here on appeal?
42.
Mr Ward’s point is that the appeal is brought under the Race Relations Act.
A term in the agreement seeks to preclude the Claimant taking any further steps
under the Race Relations Act which includes an appeal under
s.21 of the Employment Tribunals Act. Mr McNerney, on
the other hand, says that the Act is specific. The appeal to the EAT is under
the ETA 1996 and not under the RRA 1976.
43.
Some assistance is drawn from the Judgment of the EAT in Courage Take Home Trade Ltd v Keys [1986] IRLR 427, where the existence of a void
agreement did not prevent an appeal being raised by the Claimant in that case.
This has to be a term by term approach, since the whole agreement is not void.
It is only a term which seeks to preclude the enforcement of rights under the Race Relations Act.
44.
The correct approach is to distinguish the substantive from the
adjectival law. Claims are brought under the substantive law, in this case the
Race Relations Act, and the Sex Discrimination Act.
The mechanism for enforcing those rights is in the statutory Tribunals. These
are set up by the Employment Tribunals Act. At the same time
as there is provision for first instance, so there is for second instance, the
ET and EAT both appearing there. In the ordinary sense, we are hearing today a
case brought under the Race Relations Act. We are hearing an
appeal from proceedings arising in an Employment Tribunal and a decision of an
Employment Tribunal made under the Race Relations Act.
45.
It would be extraordinary that since the Claimant is not precluded from
enforcing her rights in the Tribunal, she should be precluded from enforcing
those rights by way of an appeal. This makes no sense at all. Parliament
plainly intended the separation of the substantive from the procedural. This hearing
is in every sense the hearing of proceedings under the Race Relations Act.
If it is necessary to say something about the Sex Discrimination Act,
then the same is true of that. And so, in our judgement, there is no bar to
our hearing the case today.
Disposal
46.
Having identified errors, we canvassed with the advocates what the
outcome would be, and we accept Mr Ward’s submission that this case can be
decided by us. As to continuing act, we have no doubt as to what the
Tribunal’s approach would be, certainly as between index events 1, 3 and 4.
There is no need for us to look in a crystal ball, for there it is in the book.
The Tribunal bolted together the remarks of Mr Wood for the purposes of
the June and July events. It is a continuing act.
47.
We can see no other solution than that the April event is part of that
mindset. He did not change his mind between April and June. There is no
utility in sending this matter back. The only result is clear. We have paid
careful attention to the features in Sinclair Roche & Temperley v Heard [2004] IRLR 763 and Mindimaxnox UKEAT/0225/10.
This is a very simple matter, and the same goes for 4(b). This is not actually
Mr Wood’s speech, but it is his language. We have no doubt that, in this
close community, the language used by the group of people on that occasion is
signally reinforcing Mr Wood’s attitude in the April event.
48.
The Tribunal has got the law right in respect of its decision on the
July event, that effectively the racial group of the Claimant is not relevant. The
same must be read across to the April and May events. Just as the Claimant was
not an immigrant nor was she a white girl and so, applying what we hold to be
uncontroversially the correct approach as to the fourth event to the first and
second event, the inevitable result of a remission of this case to the
Employment Tribunal would be that there were acts of race discrimination and
racial harassment in the April and May events.
49.
The appeal is allowed.
