Dhatt v McDonalds Hamburgers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE STOCKER,LORD JUSTICE STAUGHTON |
| Judgment Date | 08 November 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1108-11 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/1085 |
| Date | 08 November 1990 |
[1990] EWCA Civ J1108-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WOOD, PRESIDENT)
Royal Courts Of Justice
Lord Justice Neill
Lord Justice Stocker
and
Lord Justice Staughton
90/1085
EST 693 86
MR. N. BLAKE (instructed by the Hounslow Law Centre Ltd., Hounslow, Middlesex, TW3 1JG) appeared on behalf of the Appellant.
MR. R. GRIFFITHS (instructed by Messrs. Barlow Lyde & Gilbert, Solicitors, London, EC2M) appeared on behalf of the Respondent.
The appellant, Mr. Kalvinder Dhatt, was born in India on 20th September 1966. He is now aged 24. He came to the United Kingdom in March 1973 and was given indefinite leave to enter under the Immigration Act 1971. His passport bears the stamp "Given leave to enter the United Kingdom for an indefinite period." The effect of that stamp and that leave is that there is no restriction on the length of Mr. Dhatt's stay in the United Kingdom, that he is not subject to any alien registration requirements and that he is not subject to any restrictions with regard to employment. This means that Mr. Dhatt does not need a work permit in order to obtain work in this country.
On 11th November 1985 Mr. Dhatt, who was then aged 19, applied to McDonalds Hamburgers Limited ("the employers") for a job at their restaurant in High Street, Hounslow. A form had to be filled in. He stated that his nationality was Indian. He gave his National Insurance number which he had obtained from his previous employment. The form also contained a question worded as follows:
WORK PERMIT: If you are not a British citizen or from the EEC, do you have a permit to work in Britain? YES/NO
If yes, please provide evidence."
Mr. Dhatt answered this question "YES" and struck out the word "NO".
The next day, 12th November, Mr. Dhatt was interviewed for the job. He was seen by a trainee manager who referred to the fact that he had said in the form that he was an Indian national and asked for proof of his right to work. Mr. Dhatt said that he did not need a work permit and pointed to the fact that he had a National Insurance number and that this showed that he could work. An assistant manager then arrived. It seems that he was satisfied with the position and the employment was approved.
On 17th November Mr. Dhatt attended for a familiarisation course for the job. On this occasion he was spoken to by another assistant manager. He asked Mr. Dhatt to provide evidence that he had a right to work. Mr. Dhatt again explained that he did not need such a document. At the assistant manager's request Mr. Dhatt amended the form which he had signed on 11th November by striking out the word "YES" and writing instead "Does not need a work permit."
On 18th November 1985 Mr. Dhatt started work. Two or three days later, however, he was suspended from work until he provided proof of his right to work. This suspension was brought about on the orders of the store manager who had looked at the file and had seen no documentary proof that Mr. Dhatt had the right to work. Some time later Mr. Dhatt brought his passport to the restaurant at Hounslow and showed it to an assistant manager, but the passport was not accepted as evidence of his right to work. Mr. Dhatt was then dismissed.
On 16th February 1986 Mr. Dhatt submitted an application for a finding that he had been unlawfully discriminated against on 21st November 1985. The employers filed an answer denying discrimination. They gave as the reason for dismissal "Failure to provide evidence of ability to work." They said in the form, "The applicant was asked to produce a photocopy of his passport: he has never done so."
The application was heard by the Industrial Tribunal on 28th April, 10th June and 3rd July 1986. A written decision was sent to the parties on 12th August 1986. The decision covered a similar application by Mr. Dhatt's brother. The Industrial Tribunal summarised their findings of fact as follows:
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"12 In summary our findings of facts so far as each applicant was concerned can be stated thus:
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(i) Mr. K.S. Dhatt applied for a job on 12th November 1985, having said when the matter was raised that he, although of Indian nationality, required no work permit. The job was given to him and he began work; he was suspended by the manager who wanted documentary proof of the applicant's right to work. We accepted that the applicant produced his passport concerned who did not know the significance of the stamp therein and who sent him away again. We did not accept that the applicant made any further attempt to satisfy the demand for production of proof of entitlement to work.
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(iii) Both applicants who are of Indian nationality did not in fact need a permit to work with the respondent or any other company in this country."
The Industrial Tribunal considered the relevant provisions of the Race Relations Act 1976 (the 1976 Act) but concluded that the application by the appellant and the application by his brother should be dismissed. They added this rider in paragraph 19 of the decision:
"It would not be correct, in our view, if we left this case without commenting that although we do not see it as unlawful racial discrimination, the respondent company could and should do a great deal more to train their staff to avoid causing unnecessary problems and embarrassment for those non-EEC nationals who apply to them for work. They should, at the least, instruct their employees—and perhaps have examples in all their shops—of the meaning of the obscure stamp used by the Immigration Officials which we saw in this case. It was clear that that stamp itself conferred a right to work; as it does not so indicate, then at least the respondent company should ensure that its staff knows what to look for when they ask for proof of a prospective employee's right to work."
The appellant and his brother appealed to the Employment Appeal Tribunal. The hearing of the appeal took place as long ago as 24th March 1988. Judgment was delivered on 28th April 1988. The appeal was dismissed.
On 4th August 1988 leave to appeal was granted by a single Lord Justice.
The complaint to the Industrial Tribunal was brought in accordance with s.54 of the 1976 Act which provides:
may be presented to an Industrial Tribunal."
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"(1) A complaint by any person ('the complainant') that another person ('the respondent')—
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(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II
Part II of the 1976 Act is concerned with discrimination in the employment field. Some of the provisions of s.4 are relevant in this case. Thus s.4, so far as is material, provides:
" Discrimination against applicants and employees
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(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another—
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(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or
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(b) in the terms on which he offers him that employment; or
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(c) by refusing or deliberately omitting to offer him that employment.
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(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—
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(a) in the terms of employment which he affords him; or
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(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
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(c) by dismissing him, or subjecting him to any other detriment."
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It will be seen that s.4(l) is concerned with the stage at which someone is seeking employment, and that s.4(2) is concerned with the stage after the employment has begun. In the present case reliance was placed in particular on s.4(l)(a) and s.4(2)(c).
By s.3(3) of the 1976 Act it is provided that "references to discrimination refer to any discrimination falling within s.l or 2." In the present case we are concerned with what is called direct discrimination and therefore with s.1(1)(a) of the 1976 Act, This section, so far as is material, provides:
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"(1) A person discriminates against another in any circumstances relevant for the purposes of any provisions of this Act if—
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(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;……..
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It is provided in s.3(l) of the 1976 Act that the expression "racial grounds" means, unless the context otherwise requires, "any of the following grounds, namely colour, race, nationality or ethnic or national origins."
Finally, it is necessary to refer to s.3(4) of the 1976 Act because it will be seen that the phrase in s.1(l)(a) "treats that other less favourably than he treats or would treat other persons" contemplates that a comparison is to be made between the treatment afforded to the complainant and the treatment of other persons. Section 3(4) therefore makes provision for how these comparators are to be chosen. S.3(4) is in these terms:
"A comparison of the case of a person of a particular racial group with that of a person not of that group under s.1(l) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
It may be noted that s.3(4) of the 1976 Act is in similar terms to s.5(3) of the Sex Discrimination Act 1975 which provides that a comparison of the cases of persons of different sex or marital status "must be such that the relevant...
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