Jones v Tower Boot Company Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE MCCOWAN,LORD JUSTICE WAITE,LORD JUSTICE POTTER
Judgment Date11 December 1996
Judgment citation (vLex)[1996] EWCA Civ J1211-7
Docket NumberEATRF 95/1596/B
Date11 December 1996

[1996] EWCA Civ J1211-7

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(MR JUSTICE BUCKLEY)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Mccowan

Lord Justice Waite

Lord Justice Potter

EATRF 95/1596/B

EATRF 95/1553/B

Tower Boot Company Limited
Appellant
and
Raymondo Jones
Respondent

MR SIMON BUCKHAVEN & MR PHILLIP GALLOWAY-COOPER (Instructed by Messrs Smith Chamberlain, Wellingborough, NN8 4JL) appeared on behalf of the Appellant

MR ROBIN ALLEN QC, MR JOHN WHITMORE & MR THOMAS KIBLING (Instructed by The Principal Legal Officer, Commissioner for Racial Equality, Elliott House, London, SW1E 5EH) appeared on behalf of the Respondent

LORD JUSTICE MCCOWAN
1

Pursuant to leave granted by the Employment Appeal Tribunal the employee, Raymondo Jones, appeals against a decision of the Employment Appeal Tribunal (Buckley J. presiding) dated 13th June 1995 whereby it was ordered that the appeal of the employers from the decision dated 30th November 1993 of an Industrial Tribunal be allowed.

2

The employee worked for the employers from 16th April to 22nd May 1992, when he resigned, as a last operative. He was aged 16 and of mixed race and he had not previously been in employment.

3

He brought his claim against his employers under sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976. Section 1(1)(a) reads:

"a person discriminates against another in any circumstances relevant for the purpose 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 ………..".

4

Section 4(2)(c) reads:

"It is unlawful for a person in relation to employment on establishment in Great Britain, to discriminate against that employee ……….. by dismissing him or subjecting him to any other detriment".

5

Mr Robin Allen Q.C. appearing for the employee made plain at the beginning of the hearing before this Court that in …….. this appeal he has been supported by the Commission for Racial Equality and all the other similar Commissions. They attach great importance to it because of its effect on the purpose of the act which is the eradication of racial discrimination.

6

Much has turned in this case on the ………… interpretation of section 32 of the Race Relations Act, 1976, so I go straight to that section, which reads:

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) ……………

(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.

7

The employee gave evidence of ill-treatment, both physical and verbal, by two fellow last operatives called Clements and Cotter. The physical incidents consisted of: burning his arm with a hot screwdriver; whipping him on the legs with a piece of welt; throwing metal bolts at him; and trying to put his arm in a lasting machine. The verbal incidents consisted of calling him "chimp", "monkey" and "baboon". The employee reported the burning incident to his supervisor, Mr Ablett, who moved him to another part of the factory but there was a further incident in which somebody stuck a notice on his back bearing the words "Chipmonks are go". All this led the employee to decide to work elsewhere and he gave notice to his employers.

8

The Industrial Tribunal was satisfied "that Mr Jones was treated less favourably than other employees in the employers' employment. "We must be satisfied", they said, "that this less favourable treatment was given to him on racial grounds. Mr Ablett said in evidence that he had heard from the shop floor that Mr Jones's father was black. This leads us to draw the inference that Mr Jones's treatment by Mr Clements and Mr Cotter, in particular, was given on racial grounds … Mr Jones says that he was never referred to in any other way. These terms are, in fact, terms of racial abuse".

9

The Tribunal continued "Mr Buckhaven contends that whatever may have been the liability of Mr Clements and Mr Cotter, their employers are not liable, since the acts they committed are not done within the scope of their employment and therefore they do not come within the scope of section 32(1) of the Act … We do not think that we can take the same view. It seems to us that Mr Clements was authorised to use the screwdriver and was simply using it in an unauthorised manner. The same goes for the other acts complained of, including the racial taunts. It seems to us that if we were to accept the breadth of Mr Buckhaven's submission we would be reduced to accepting that no act carried out by an employee can become the liability of the employer unless it was expressly authorised by the employer. It seems to us that the respondents are quite adequately protected by section 32(3) of the Act. Although Mr Ablett said that he gave some sort of verbal warning to Mr Clements, this is not recorded anywhere. In the circumstances, Mr Ablett's action in our view was wholly inadequate….". They continued: "We do not accept that the respondents were unaware that what Mr Jones complained of (that is the burning) might be racially motivated. Mr Ablett accepted that he knew from shop floor sources that Mr Jones's father was black. … We are not satisfied that the employers took such steps as were reasonably practicable to prevent Mr Clements from carrying out the act of burning or acts of the description. As to the other acts now complained of, had the employers been more fully aware on racial matters, they would have perceived the nature of the names that Mr Jones was being called".

10

The Tribunal went on to say that they accepted that it was because he was so upset that Mr Jones left the employment and that it was difficult to envisage treatment calculated to cause greater injury to his feelings. They awarded him £5,000.

11

The employers appealed to the Employment Appeal Tribunal contending that the reference in section 32(1) of the Race Relations Act 1976 to "in the course of his employment" must be subject to the same principles as apply to the establishment of vicarious liability of an employer at common law and that at common law a master is liable for acts which he has not authorised provided they are so connected with acts which he has authorised that it may rightly be regarded as a mode, albeit an improper mode, of doing them.

12

The employers submitted to the E.A.T. that no employee of the employers in doing any of the acts complained of could possibly be described as acting in the course of his employment and that none of the acts complained of could possibly be described as modes of doing the job they were employed to do.

13

The majority of the E.A.T. accepted these contentions and allowed the employers' appeal but ordered that the matter be remitted to a differently constituted Industrial Tribunal to investigate whether the employers' failure to take action in respect of the treatment of the employee by his fellow employees was on grounds of race, inferentially or otherwise.

14

The employers argue that it is only necessary to consider Mr Clements's action in burning the employee's arm with the screwdriver for it to be apparent that it is absurd to suggest that the actions of his fellow employees were merely modes of doing their work. Mr Allen for the employee responds, however, that it is a mistake to start consideration of vicarious liability at the worst end. Starting at the other end there is, he submits, nothing absurd in contemplating the adoption of racial abuse as a mode of carrying out their duties within the scope of their employment.

15

Mr Allen's basic point, however, is that when considering the question of vicarious liability under section 32(1) of the Act it is not subject to the same principles as apply to the establishment of vicarious liability of an employer for the tortious acts of his employees at common law.

16

In the first place, Mr Allen points out that the common law doctrine is explained in these words in the 20th Ed. of Salmond and Heuston on torts p.457:

"a master, as opposed to the employer of an independent contractor is liable for acts which he has not authorised, provided they are so connected with acts that he has authorised that they can rightly be regarded as modes, although improper modes of doing them".

17

So, argues Mr Allen, for the common law doctrine to apply two conditions must exist: first, the relationship of master and servant must exist between the defendant and the person committing the wrong complained, and, second, in committing the wrong the servant must have been acting in the course of his employment, whereas the Act goes wider then the master and servant relationship—see the definition of employment in Section 78 of the Act where it includes persons "under a contract personally to execute any work or labour".

18

Mr Allen also focused on the words in section 32(1) "whether or not it was done with the employer's knowledge or approval". "Approval" he argued is very little different in the context from "authority". This, he submitted, is a clear departure from the common law doctrine.

19

Mr Buckhaven on the other hand argued that these words add nothing and their inclusion in the Act is totally pointless. This is a view I cannot accept. It makes no sense to me that an act...

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