BBC Scotland v Souster
| Jurisdiction | Scotland |
| Judgment Date | 07 December 2000 |
| Docket Number | No 31 |
| Date | 07 December 2000 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
EmploymentRacial discriminationWhether Scots and English distinct racial groupsRace Relations Act 1976 (cap 74), sec 3(1)1
The Race Relations Act 1976 contains provisions against discrimination on racial grounds and in respect of the application of conditions not applying to persons not of the same racial group. By sec 3(1), racial grounds is defined as any of the following grounds, namely colour, race, nationality or ethnic or national origin. By sec 3(1) racial group is defined as a group of persons defined by reference to colour, race, nationality, or ethnic or national origins. Section 3(2) provides that the fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of the Act.
The respondent was employed by BBC Scotland between February 1995 and May 1997 as a television presenter. His contract was not renewed, and a Scottish woman was appointed in his place. The respondent complained to the Industrial Tribunal, which upheld the complaint. The appellants appealed to the Employment Appeal Tribunal which upheld the decision of the Industrial Tribunal. The appellants appealed to the Court of Session. The appellants argued (1) the phrase national origins referred to nationality in the legal sense alone and there could be no discrimination within Great Britain arising from Scots or English national origin, (2) the primary purpose of the Act and its predecessors had been to deal with a social background which did not comprehend discrimination within Great Britain based on historical and geographical concepts such as nationhoood as distinct from nationality in its legal sense and, (3) if the meaning of national origins extended beyond citizenship of a sovereign state, for employers to determine in advance how such racial groups should be constituted and recognised was an impossible task which Parliament could not have intended to place upon them.
Held (per Lord Cameron of Lochbroom and Lord Nimmo Smith) that (1) a racial group may be defined by reference to its communal origins and tradition, and the courts in the United Kingdom have consistently adopted a broad approach to the construction of the legislation (p 465C), and there was neither reason nor logic in the proposition that the phrase national origins meant no more than nationality in the legal sense acquired by an individual at birth (p 465EG); (2) the changes made to race discrimination legislation by the 1976 Act as compared to the original Act of 1968 did not overrule the decision in Ealing London Borough Council v Race Relations Board, and parliament deliberately did not define nationality exclusively by reference to citizenship (p 465I); (3) a person can be discriminated against on the grounds of his English nationality where that nationality has been acquired by adherence or adoption since his birth or because he has been perceived to have become a member of the racial group, the English (p 466DE); (4) there was no substance in the argument that the problems for identifying the existence of a racial group were such that Parliament did not intend that the legislation should extend to include them. Parliament provided suitable safeguards for the employer by way of allowing the employer to justify requirements, or excusing him from liability from damages where there was no intention to treat the claimant unfavourably (pp 467H468C); (5) neither the English nor the Scots as racial groups have the necessary distinctiveness or community by virtue of characteristics derived from their origins alone such that they
constituted an ethnic group separately from or additional to their being a racial group measured by their separate and distinct national origins (p 470B)(Per Lord Marnoch) (1) that the argument that there could not be racial discrimination in relation to persons coming from different parts of the United Kingdom could not get past the decision inEaling London Borough Council v Race Relations Board(p 470E471C); and (2) that the tribunal need not do more than satisfy, itself that an application fell within one or other branch of ethnic or national origins without deciding which branch was most apposite, which was in any event a matter of fact, and in the present case he would have been for allowing the case to proceed by reference to both national and ethnic origins (p 471D472D); and appeal refused and case remitted back to the Employment Tribunal.
Observed (per Lord Marnoch) that an extension of the law along the lines in Weathersfield Ltd v Sargentby allowing the test of unfavourable treatment on racial grounds to be satisfied where a person is discriminated against by virtue of a third party's, rather than his own, racial characteristicsmight create real difficulties for employers and consideration should be given to referring to Parliamentary materials before following that decision which was apparently taken without such assistance (p 472EG).
Ealing London Borough Council v Race Relations BoardELR[1972] AC 342 followed.
Weathersfield Ltd v SargentUNK [1999] IRLR 94 commented upon.
Mark Douglas Souster brought a complaint alleging racial discrimination on the part of BBC Scotland before an industrial tribunal. The Industrial Tribunal upheld the complaint. The employers appealed to the Employment Appeal Tribunal which upheld the complaint. The appellants appealed to the Court of Session.
Cases referred to:
Barras v Aberdeen Steam Trawling & Fishing Co LtdSC1993 SC (HL) 21
Boyce v British Airways (No 1) 31 July 1997 EAT unreported
Ealing London Borough Council v Race Relations BoardELR[1972] AC 342
King-Ansell v Police [1979] 2 NZLR 531
Mandla (Sewa Singh) v Dowell LeeELR [1983] 2 AC 548
Northern Joint Police Board v PowerUNK [1977] IRLR 610
Pepper v HartELR [1993] AC 593
Tejani v The Superintendent Registrar for the District of PeterboroughUNK [1986] IRLR 502
Weathersfield Ltd v SargentUNKICR [1999] IRLR 94; [1999] ICR 425
Textbooks etc referred to:
Bennion on Statutory Interpretation (3rd edn) pp 459460
Oppenheim, International Law (8th edn) vol I p 645
The case called before an Extra Division comprising Lord Cameron of Lochbroom, Lord Marnoch and Lord Nimmo Smith for a hearing on the summar roll on 25, 27 and 28 September 2000 and 3, 4, 5 and 6 October 2000 at the same time as British Airways Plc v BoyceSC 2001 SC 510.
At advising, on 7 December 2000, the following opinions were delivered
LORD CAMERONof Lochbroom[1] In this appeal the appellants, BBC Scotland, bring before this Court decisions by an Industrial Tribunal and subsequently by the Employment Appeal Tribunal which determined in principle that the respondent, who is a journalist, was entitled to bring a claim based on a complaint alleging racial discrimination on the part of the appellants, the claim proceeding on averments relating to the national origins of the respondent. In his application the respondent states that he is English. He was employed by BBC Scotland between February 1995 and May 1997 on successive contracts as a presenter of a programme entitled Rugby Special on BBC Television. The substance of his complaint relates to the refusal of the appellants to renew his contract as a presenter of that programme from November 1997. He states that the appointment made to that position in November 1997 was of a Scottish woman. He further states that he believes that a major factor in the decision of the appellants not to appoint him in November 1997 as a presenter was his national origin. He had been told, he says, that the appellants would prefer a Scot for the job. He goes on to state that he believes that the actions of the appellants were contrary to Part II of the Race Relations Act 1976 in that they have discriminated against me on grounds of my national origin in their decision not to offer me the employment in question.
[2] In their grounds of appeal the appellants recognise the respondent's complaint as being one that, because he had been denied appointment as a presenter of Rugby Special, the respondent has been treated less favourably on the grounds of his English national origins than the appellants treat or would treat other persons, particularly those of Scottish national origin and that he thereby has a relevant claim for race discrimination contrary to the Race Relations Act 1976. The respondent in his answers supplements this by indicating that he also seeks to rely upon such discrimination on the grounds of his English nationality (or not having Scottish nationality). The appellants then assert that the categories of English in comparison to Scottish are not distinct racial groups for the purposes of the Race Relations Act 1976 and therefore that comparisons as regards allegedly different treatment on the grounds of being either Scots or English are not covered by the Act. In so asserting, the appellants seek to bring under review the decision of the Employment Appeal Tribunal inNorthern Joint Police Board v Power.
[3] Before the Industrial Tribunal and again before the Employment Appeal Tribunal the appellants accepted that the tribunal was bound by the decision of the Employment Appeal Tribunal inPower. In that case a police authority had advertised the post of chief constable. The respondent had applied for the post but had not been short listed. He thereafter applied to an industrial tribunal for a finding that his treatment in that respect contravened the Race Relations Act 1976 on the basis of discrimination against him as an Englishman. The Industrial Tribunal was required to determine whether or not such discrimination was, as a matter of general law, relevant in terms of the legislation. It held as a matter of jurisdiction that the Act was habile to cover discrimination as between English and Scots persons on grounds of race. In their judgment, the Employment Appeal Tribunal correctly indicated that the...
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