Glasgow City Council v Zafar (No.2)
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1996 |
| Docket Number | No 55 |
| Date | 12 July 1996 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
EmploymentDismissalUnfair dismissalRace discriminationWhether respondent discriminated against on racial groundsWhether respondent treated less favourably than othersAppropriate testRace Relations Act 1976 (cap 74), sec 1(1)1
Section 1(1) of the Race Relations Act 1976 provides, inter alia, that: 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.
A UK citizen of Asian origin was employed by a council as a social worker. He was dismissed from office and took the council to an industrial tribunal claiming unfair dismissal and discrimination in breach of sec 1(1) of the 1976 Act. The industrial tribunal upheld both grounds. The conduct held to constitute discrimination was the same as that in respect of which the industrial tribunal concluded that the dismissal was unfair. Those comprised, inter alia, delay in dealing with allegations of the applicant's sexual impropriety, for which he was dismissed. The tribunal found that the treatment accorded to the applicant by the council fell far below the standards of a reasonable employer. They found that to treat someone in a way which fell far below the standard of the reasonable employer gave rise to a presumption that the person had been treated in a way different from the way in which others had been, or would be, treated. They also found that such a departure from normal or reasonable standard constitute (sic) less favourable treatment, so that the evidence discloses that the [council] have treated the applicant less favourably than they have treated or would treat others. The Employment Appeal Tribunal refused the council's appeal. The council then appealed to the Court of Session only against the finding of discrimination.
Held, (1) that the onus was on the applicant to demonstrate to the industrial tribunal firstly that he had been treated less favourably than the council treated or would have treated other persons, and secondly that the treatment accorded to him had been racial grounds; (2) that the requirement necessary to establish less favourable treatment under sec 1(1) of the Act was not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances and it could not be inferred, let alone presumed, only from the fact that an employer had acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances; (3) that the industrial tribunal's findings did not disclose that there would have been any less unreasonable treatment by the council of an employee other than the applicant against whom the same allegations of misconduct had been made; (4) that as there was no material other than the comparison with the reasonable employer on which the industrial tribunal proceeded which might justify the inference that the council treated the applicant less favourably than they would have treated anyone else in the same circumstances, the applicant had failed to prove what he required to prove in this connection; (5) that a finding of a difference in race would often point to the possibility of racial discrimination and the lack of explanation or adequate explanation from the employer would make it both legitimate and a matter of common sense for the tribunal to infer
that the discrimination was on racial grounds, but there was no compulsitor for the tribunal to do so as they retained a discretion in the matter; (6) that the industrial tribunal had accordingly erred in holding that they had to find that discrimination was based upon racial grounds; (7) that no such discrimination had been made out as the inequality of treatment had been erroneously inferred only from the fact that the council acted unreasonably in relation to the dismissal proceedings for, unlike unequal treatment, unfair treatment in such proceedings could easily occur as a result of incompetence or for other reasons totally unconnected with race and; and (8) that as, in particular, there was evidence that there was no racial bias by any employee of the council against the applicant, it could not be inferred from the industrial tribunal's findings that the unfair treatment accorded to the applicant was accorded to him on racial grounds; and appeal allowedKing v The Great Britain China CentreUNK [1991] IRLR 513;Noone v North West Thames Regional Health AuthorityUNK[1988] IRLR 195 applied.
Abdur Rashid Zafar applied to an industrial tribunal for a finding that he was unfairly dismissed from his employment with Strathclyde Regional Council and that he was discriminated against on grounds of race in breach of sec 1(1) of the Race Relations Act 1976. Glasgow City Council, the statutory successors to Strathclyde Regional Council were brought into the case in room and place of the latter council.
The industrial tribunal found both grounds to be made out.
The council appealed to the employment Appeal Tribunal.
The Employment Appeal Tribunal refused the appeal.
The council appealed to the Court of Session.
Cases referred to:
Baker v Cornwall County CouncilUNK [1990] IRLR 194
Chattopadhyay v Headmaster of Holloway SchoolUNK [1982] IRLR 487
King v The Great Britain China CentreUNK [1991] IRLR 513
Noone v North West Thames Regional Health AuthorityUNK[1988] IRLR 195
Qureshi v London Borough of NewhamUNK [1991] IRLR 264
The cause came before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord McCluskey and Lord Morison for a hearing.
At advising, on 12 July 1996, the opinion of the court was delivered by Lord Morison.
Opinion of the CourtThis is an appeal by Glasgow City Council as successors of Strathclyde Regional Council (hereinafter referred to as the appellants) against an order of the Employment Appeal Tribunal dated 24 November 1995 dismissing an appeal by the appellants against a decision of an industrial tribunal dated 12 April 1995 which determined a number of applications made by Abdur Rashid Zafar (hereinafter referred to as the respondent).
The respondent is a United Kingdom citizen of Asian origin who was employed by the appellants as a social worker from 1969 until he was dismissed by them on 10 March 1989. In his applications to the industrial tribunal the respondent made claims against the appellants in relation to his failure to secure promotion and also...
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