Glasgow City Council v Zafar (No.2)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWNE-WILKINSON
Judgment Date27 Nov 1997
Judgment citation (vLex)[1997] UKHL J1127-5
Docket NumberNo 2

[1997] UKHL J1127-5

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Slynn of Hadley

Lord Lloyd of Berwick

Lord Hope of Craighead

Lord Clyde

Strathclyde Regional Council
(Respondents)
and
Zafar
(Appellant)(Scotland)
LORD BROWNE-WILKINSON

My Lords,

1

The appellant is a United Kingdom citizen of Asian origin. He was employed for some ten years by the Strathclyde Regional Council ("the local authority") as a social worker. He was dismissed on 10 March 1989, the reason for his dismissal being given as sexual harassment of clients of the Social Welfare Department of the local authority and of fellow employees.

2

The appellant brought, in all, six sets of proceedings in the Industrial Tribunal, some before and some after his dismissal. In very general terms, those proceedings alleged that, prior to his dismissal, the local authority had discriminated against him and victimised him on racial grounds in not appointing him to certain posts, that there was a long term conspiracy against him, that his dismissal was unfair within the meaning of section 57(3) of the Employment Protection (Consolidation) Act 1978 in that there was no substantial ground for his dismissal and also that the dismissal was carried out in an unfair manner. The appellant further claimed that his dismissal constituted racial discrimination within section 1 of the Race Relations Act 1976.

3

After a very long and complicated hearing, the Industrial Tribunal dismissed all the appellant's allegations save those hereafter mentioned. In particular, the Industrial Tribunal held that the appellant's complaints of racial discrimination and victimisation relating to his failure to obtain certain appointments were groundless, that there was no long term conspiracy against him, that there was no direct evidence of ill-will or malice against him on grounds of his race or otherwise. In general, with one exception, the Industrial Tribunal exonerated the local authority and its employees from the charges made against them. The one exception was that the Industrial Tribunal held that the dismissal of the appellant was unfair and racially discriminatory. It is the reasoning of the Industrial Tribunal on those two issues which is the subject matter of this appeal.

4

The Industrial Tribunal found the dismissal to be unfair, not on the grounds that no reasonable employer could have reasonably decided to dismiss the appellant, but on the grounds that the manner in which his dismissal was conducted was unfair. The Tribunal found that the local authority had been guilty of unreasonable delay and had failed to investigate some allegations at the appropriate time, to issue appropriate warnings and to advise the appellant of the matters in relation to which his conduct was under investigation. On those grounds the Tribunal found the dismissal to be unfair for the purposes of the Act of 1978.

5

The Industrial Tribunal then turned to the claim based on racial discrimination under the Act of 1976, section 1(1) of which provides:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;"

6

The Tribunal held that the local authority had treated the appellant less favourably than it would have treated others and that it had done so on the grounds of his race. It expressed its reasons for reaching those conclusions in the following words:

"It will be clear from the Tribunal's earlier comments that they are satisfied that the treatment accorded to the applicant by the respondents fell far below the standards of a reasonable employer …

"To treat someone in a way which falls far below the standards of the reasonable employer gives rise to a presumption that that person has been treated in a way different from the way in which others have been, or would be, treated.

"It is also clear that such departure from normal or reasonable standards constitute less favourable treatment, so that the evidence discloses that the respondents have treated the applicant less favourably than they have treated or would treat others.

"The applicant is, of course, a United Kingdom citizen of Asian origin. The Tribunal then considered whether they should infer that the less favourable treatment accorded to the applicant was accorded to him 'on racial grounds'. The Tribunal examined the case law on the subject. It appears to the Tribunal from the decided case law that, once an applicant has demonstrated that (1) he is a member of a minority racial group, and (2) he has been less favourably treated than others have been treated, or would be treated, there is an onus on the employer to give an innocent explanation for the treatment accorded to the complainant (innocent, in this context, meaning an explanation not involving racist considerations). If no such explanation is offered, the Industrial Tribunal should draw an inference of race discrimination. [It is certainly true that the case of King v. Great Britain-China Centre [1991] I.R.L.R. 513, merely suggests that it is legitimate for the Industrial Tribunal to draw an inference of racial discrimination in such circumstances, which implies that an industrial tribunal retains some discretion concerning whether or not the inference should be drawn. Other authorities, however, particularly Chattopadhyay v. Headmaster of Holloway School [1981] I.R.L.R. 487 (especially at 490, para. 18), suggest that, in some circumstances, the Tribunal should draw an inference of discrimination. Much the same attitude was adopted in Baker v. Cornwall County Council [1990] I.R.L.R. 194 (especially at 198 para 30)].

"In these circumstances, the Tribunal has no choice but to draw an inference adverse to the respondents and find that the applicant has been discriminated against by the respondents within the meaning of section 1(1), because no satisfactory explanation justifying the treatment accorded to the applicant has been accepted by them."

7

The local authority appealed to the Employment Appeal Tribunal against the Industrial Tribunal decision both on unfair dismissal and on racial discrimination. The Employment Appeal Tribunal dismissed the appeal on both grounds. The local authority (being by this time Glasgow City Council, a successor of Strathclyde Regional Council) did not appeal further against the finding by...

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