Jones v Tower Boot Co. Ltd. [1997] IRLR 168 (CA) Burton and Rhule v De Vere Hotels [1996] IRLR 596 (EAT)
| Date | 01 March 1998 |
| DOI | 10.1177/135822919800300105 |
| Published date | 01 March 1998 |
| Author | Richard Townshend-Smith |
| Subject Matter | Case Notes |
International Journal of Discrimination and the Law, 1998, Vol
. 3, pp
. 65-77
1358-2291/98 $10
© 1998
A B Academic Publishers
. Printed
in Great Britain
CASE NOTES
Jones v Tower Boot Co
. Ltd
. [1997]
IRLR
168 (CA)
Burton and Rhule v De Vere Hotels [1996]
IRLR
596 (EAT)
In a previous
edition
of the journal (2 IJDL 137) I noted two
decisions-Tower
Boot Co
. Ltd
. v Jones
[1995] IRLR 529, and
Waters
v Commissioner of Police of the Metropolis
[1995] IRLR
531-which seriously limited the legal definition and hindered the
practical effectiveness of sexual and racial harassment law
. The
former decision has now been reversed by the Court of Appeal and,
taken in conjunction with the
Burton
decision, perhaps presage a
more sympathetic and creative judicial approach to the area
.
The reasoning of the EAT in
Jones
was quite straightforward
;
the employer was not liable for the deliberate and vicious acts of
racial harassment because such acts were, according to the traditional
tort test of vicarious liability, outside the scope of the harasser's
employment
.
The
policy
arguments in the Court of Appeal are equally
straightforward and are utterly decisive
. Waite LJ observed that
`it would be particularly wrong
to allow racial harassment on
the scale
suffered by the complainant
.
.
.
at the hands of his workmates
.
.
.
to
slip through the net
of employer responsibility
by applying to it a
common-law principle
evolved in another area
of law to deal with
vicarious responsibility
for wrongdoing of a wholly different kind
. To
do so would seriously undermine
the statutory scheme of the
Discrim-
ination Acts
and flout the
purposes which they were passed
to
achieve
.'
Furthermore, as was conceded by his counsel, a finding for the
employer would mean that the more heinous the act of discrimina-
tion, the less likely it will be that the employer would be liable
.
Given the clear policy message emanating from the Court of
Appeal and thus the strength of the case as an authority, the technical
arguments can be dealt with briefly
. First, it was held that the defini-
tion of `employment' in s
.78 as including persons `under a contract
personally to execute any work or labour'-a definition covering not
merely employees-showed that vicarious liability for the acts of
employees could not cover all situations envisaged by the legislation
.
Secondly, the Court of Appeal contrasted the traditional tort defini-
tion of vicarious liability with the statutory definition in s .32(1) of
the Race Relations Act
. The former refers to acts authorised by the
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