Derby Specialist Fabrication Ltd v Burton
| Jurisdiction | UK Non-devolved |
| Date | 2001 |
| Court | Employment Appeal Tribunal |
Discrimination - Race - Employment - Discriminatory act - Employee resigning following continuing racial abuse by foreman - Whether employer discriminating against employee by “dismissing” him - Whether “act extending over a period” - Award for injury to feelings - Injury varying in gravity at different times - Whether interest on award to run from start of discrimination -
From April 1996 the applicant, a welder, was subjected to racial abuse by his foreman. In 1998 a redundancy situation arose and the applicant, unlike the other welders, was not given a second interview for an alternative job because there was no record of his having done welding work, nor was he told that less skilled work with a protected salary might be available. On 1 May 1998 the applicant resigned, believing that the foreman would participate in the redundancy selection process and that he was unlikely to be fairly compared with other employees. On 31 July 1998 he presented a complaint that his employers had unlawfully discriminated against him on the ground of race, contrary to sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976F1. On a preliminary issue as to whether the complaint had been presented outside the three-month period prescribed by section 68(1) of the Act, the tribunal found that at all material times racial abuse was widespread, that the foreman's racial abuse was continuing and had had a direct impact on the applicant's decision to resign, and that, since the complaint had been presented within three months of his resignation, it was in time. The tribunal went on to find that the employers' conduct constituted repudiation of the contract and, accordingly, the applicant had been constructively dismissed, and that the dismissal amounted to unlawful direct discrimination on the ground of race contrary to section 4(2)(c). When assessing compensation, the tribunal found that the intensity of the applicant's suffering had varied, being most severe in May and June 1998, and awarded a sum for injury to feelings with interest thereon calculated from the first act of discrimination to the date of the tribunal hearing, in accordance with regulation 6(1)(a) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996F2.
On appeal by the employers—
Held, dismissing the appeal, (1) that “dismissing” in section 4(2)(c) of the Race Relations Act 1976 was not to be given a restricted meaning and was apt to include constructive dismissal, so that, where an employee's resignation resulted from discriminatory repudiatory conduct by the employer, the employer discriminated against the employee “by dismissing him” for the purposes of section 4(2)(c); that, in any event, where repudiation of a contract consisted of an accumulation of events over a period of time, it was wrong to isolate individual incidents, and the continuing failure of the employers to prevent racial abuse and discrimination constituted “other detriment” within section 4(2)(c), and such conduct, being an act extending over a period, was, by reason of section 68(7)(b), treated as done at the end of that period; and that, accordingly, the tribunal had been entitled to treat the complaint as being made in time under section 68 (post, pp 839G–H, 840G–H, 841C–E).
(2) That, in discrimination cases based on allegations of harassment, the tribunal should have regard to the totality of a number of successive incidents, because there might well be a cumulative effect, and, if looking at them overall they could be seen to be or inferred to be based on racial grounds, so that the employee would have been treated differently but for his race, then the repudiation by the employer of the contract of employment was to be treated as racially discriminatory; that, although the tribunal in the present case had not expressly said of each matter in turn that it was based on racial grounds, the reasons had to be read as a whole and the tribunal had recorded differences in the treatment of the applicant and noted no reference to any explanation being proffered for those differences; and that, accordingly, it was clearly open to the tribunal to infer that those differences arose from racial grounds (post, pp 842F–G, 843E–F).
(3) That it was clear that Parliament had intended that, unlike interest on other awards where the midpoint was to be taken, interest on an award for injury to feelings should normally be from the date of the discriminatory act, so that the mere fact that any such award reflected injury occurring over a period of time could not of itself justify a departure from the normal rule in regulation 6(1)(a) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996; that, had it stood alone, the tribunal's reference to the injury becoming more severe during May and June 1998 might have required the tribunal in its discretion under regulation 6(3) to depart from the normal rule because serious injustice would result from doing otherwise; but that the tribunal, having also found that the injury to feelings had diminished between then and its decision, was faced with a variation first up and then down in the gravity of the injury to the applicant's feelings; and that, in those circumstances, it was open to the tribunal to decline to find that serious injustice would be caused by adhering to the normal approach (post, pp 845G–846C).
Per curiam. It must be borne in mind that the extended reasons of an employment tribunal are directed towards parties who know in detail the arguments and issues in the case. The tribunal's reasons do not need to be spelt out in the detail required were they to be directed towards a stranger to this dispute (post, p 844D).
The following cases are referred to in the judgment:
Driskel v Peninsula Business Services Ltd [
Harrold v Wiltshire Healthcare NHS Trust (unreported), 16 March 1999,
Hutchison v Westward Television Ltd [
King v Great Britain-China Centre [
Owen & Briggs v James [
Qureshi v Victoria University of Manchester [
Sutcliffe v Hawker Siddeley Aviation Ltd [
Weathersfield Ltd v Sargent [
Western Excavating (ECC) Ltd v Sharp [
No additional cases were cited in argument.
APPEAL from an employment tribunal sitting at Nottingham
By an originating application dated 30 July 1998, the applicant, Joseph Burton, made a complaint of race discrimination against the respondent employers, Derby Specialist Fabrication Ltd. By a decision promulgated on 9 June 1999, the tribunal upheld the complaint. The employers appealed against both the decision on liability and the amount of compensation awarded on the grounds, inter alia, that (1) the tribunal had erred in law in holding that the applicant had been dismissed within the meaning of section 4(2)(c) of the Race Relations Act 1976 and in finding that it was just and equitable to extend time; (2) the tribunal had failed to make express findings that the allegations against the applicant were caused by race; and (3) the tribunal erred in awarding interest from the date the foreman subjected the applicant to a detriment in April 1996.
The facts are stated in the judgment.
Richard Clayton for the employers.
Heather Williams for the applicant.
28 September. The following judgment of the appeal tribunal was handed down.
KEENE J These are appeals first against a unanimous decision of an employment tribunal sitting at Nottingham that the applicant was unlawfully discriminated against, contrary to sections 1 and 4 of the Race Relations Act 1976, and secondly against the amount of compensation awarded. We shall deal with the liability appeal first.
1 The applicant, who is black, was employed by the appellant employers as a welder between 1989 and May 1998. At some stage he was transferred from site construction to the tube shop. The employment tribunal found as a fact that:
“At all material times racial abuse was widespread throughout the tube shop. No action was taken by the employers to check this. Indeed Mr Whalley, the personnel manager, did not appear to recognise the climate of racial abuse as a problem. He failed to understand that it might be offensive for a black worker to be likened to a monkey and for another to be described as a ‘black bastard’.”
2 The tribunal's findings also included the following:
“In or about April 1996 the applicant asked Mr Moore, then training school instructor, why he had failed a test. Mr Moore said, ‘I am not having a jungle bunny working in the welding shop.’ The applicant was offended and upset by this incident … In early 1998 the employers were faced with a redundancy situation. Welders, including the applicant, were interviewed by an agency with a view to a possible transfer to another company. The agency told the applicant that there was no record that he did any welding work. The applicant did not complain because he did not want to rock the boat. Unlike other welders, he did not get a second interview.”
3 In March 1998 there was a change of foreman. Mr Moore became the foreman. The tribunal found:
“The applicant reasonably believed that Mr Moore would participate in the redundancy selection process. On 1 May 1998 he resigned. If he had been told that he...
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