Martins v Marks and Spencer Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY |
| Judgment Date | 17 December 1998 |
| Judgment citation (vLex) | [1997] EWCA Civ J1219-30 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 1998 |
| Docket Number | EATRF 96/1612/B |
[1997] EWCA Civ J1219-30
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Beldam
Lord Justice Hutchison
Lord Justice Mummery
EATRF 96/1612/B
MR I MACDONALD QC with MR B WILTSHIRE (Instructed by Messrs Bindman & Partners, London WC1X 8QF) appeared on behalf of the Appellant
MR E TABACHNIK QC with MR C SHELDON (Instructed by Messrs F J Kiernan, London W1A 1DN) appeared on behalf of the Respondent
Friday, 19 December 1997
Judgment of the Court
Introduction
On 28 January 1992 the appellant, Adell Martins, was interviewed for a job as a Trainee Manager with the respondents, Marks & Spencer plc. Ms Martins is of Afro-Caribbean origin. On 29 January 1992 she was informed that her application was unsuccessful. On 23 April 1992 she lodged an application with the Industrial Tribunal, stating her complaint on the IT1 in these words:
"I have been discriminated against contrary to the Race Relations Act 1976."
On a separate sheet she provided details of allegations about her treatment at the interview.
Marks & Spencer contested the complaint, stating in their notice of appearance (IT 3) that they denied that
"the Applicant was discriminated against contrary to the Race Relations Act 1976".
This straightforward, simple, serious complaint was heard by the Industrial Tribunal sitting at London South over a period of 7 days spaced out between 22 April 1994 and 6 April 1995. Both sides were legally represented. It appears that only 1 day was originally set aside for the hearing and that the subsequent adjourned hearings were also of too short duration to allow the case to be completed without the need for yet further adjournments. In Extended Reasons sent to the parties on 31 May 1995 the Industrial Tribunal unanimously decided that the complaint of racial discrimination should succeed. Compensation of £3,000 for injury to feelings was awarded and the case was adjourned generally, with leave to either side to apply upon the question of further compensation.
By Notice of Appeal dated 28 June 1995 Marks & Spencer appealed to the Employment Appeal Tribunal, contending that the Industrial Tribunal had misdirected itself in law. The appeal was heard by the Employment Appeal Tribunal on 26 March 1996. Judgment was given on 14 May 1996. The majority of the tribunal decided to allow the appeal, quash the decision and dismiss the complaint.
It was now the turn of Ms Martins to appeal. Pursuant to leave granted on 18 November 1996 she served a Notice of Appeal dated 19 November 1996, contending that the decision of the Industrial Tribunal should be upheld and that the majority of the Employment Appeal Tribunal reached wrong conclusions.
This court is now faced, in December 1997, with a case about an act committed almost 6 years ago; one side says the appeal should be allowed; the other says that the appeal should be dismissed; the only proper course may be to remit this matter for re-hearing by a different Industrial Tribunal (a course which both parties oppose for obvious reasons). This is indeed a sorry state of affairs. The system, which provides a speedy, informal, inexpensive solution for most complaints of this kind, has failed these parties. This is not the fault of any particular individual or institution. But there are certainly some lessons to be learned.
The Law
It is common ground that the relevant provisions of the Race Relations Act 1976 (the 1976 Act) pose two questions for decision in this case:
(1) Was Ms Martins treated less favourably than Marks & Spencer treated or would treat other persons in the same circumstances? (the treatment issue). If so,
(2) Was that less favourable treatment "on racial grounds"?
(the causation issue).
Although the Tribunal did not, in its decision, refer expressly to any provisions of the 1976 Act, it is necessary, for the purpose of disposing of the rival arguments on this appeal, to examine carefully the language of the following sections:
"1 (1) 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;
3 (1) In this Act, unless the context otherwise requires—
"racial grounds" means any of the following grounds, namely colour, race nationality or ethnic or national origins;
"racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.
(3) In this Act—
(a) references to discrimination refer to any discrimination falling within section 1 or 2……
(4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
4(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another—
(c) by refusing or deliberately omitting to offer him that employment.
32(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.
(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.
54(1) A complaint by a person ("the complainant") that another person ("the respondent")—
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant,
may be presented to an industrial tribunal."
The Decision of the Industrial Tribunal
The overall conclusion of the Industrial Tribunal is stated in paragraph 22 of the Extended Reasons:
"Our conclusion, therefore, is that the Applicant was denied an opportunity of employment as a Trainee Manager with the Respondent by reason of the effects of a discriminatory attitude prevailing in the organisation. The Respondent totally failed adequately to inquire when this result was challenged. In general, the Respondent's extensive efforts to pursue its equal opportunities policy, however unsuccessful they may be, would not permit us to say that the Respondent had failed to take reasonable steps to eliminate discrimination. In this particular instance, however, the Respondent has failed to take reasonable steps to inquire into this allegation to ascertain whether it has a foundation and, if it appears to have a foundation, to rectify the position. The Respondent is, therefore, vicariously liable for what happened in the interview with the Applicant on 28 January 1992."
In order to understand how the tribunal arrived at this unanimous conclusion, an attempt must be made to ascertain the findings of fact by the tribunal on the two crucial issues of less favourable treatment and causation. The Employment Appeal Tribunal did not find this an easy task and made the following comment (p.3):
"Having regard to the history of the hearing set out above, it may well be that drafting the Reasons posed problems: reviewing in April 1995 the issues and the evidence cannot have been forensically easy. That said, the Reasons as drafted have posed problems for all concerned in this Appeal: the whole is long, ill-organised and often rhetorical rather than judgmental in style. Crucial findings of fact have to be mined from separate not readily reconcilable passages and non sequiturs hinder comprehension."
The tribunal commented that, in addition, there had been "failure to make findings specific to the relevant provisions of the Race Relations Act 1976, indeed the Reasons do not include any specific reference to the Act or its terms."
We regret to say that these strictures are justified. We are all aware, as former judges of the Employment Appeal Tribunal, of the difficulties faced by Industrial Tribunals in lengthy contested race discrimination cases. The difficulties of the tribunal in this case are unfortunately encountered in some other race and sex discrimination cases. The Industrial Tribunals have an enormous, ever-increasing case load. If a case overruns the estimated length and cannot be finished within the time initially allotted to it, there are unavoidable problems in fixing the dates of the adjourned hearing to suit all three members of the tribunal, as well as the parties, their representatives and their witnesses. There is an added difficulty in cases of race and sex discrimination, as explained by Lord Browne-Wilkinson in Strathclyde Regional Council v Zafar (House of Lords-27 November 1997):
"Claims brought under the Act of 1976 and the Sex Discrimination Act 1975 present special problems of proof for complainants since those who discriminate on grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them. Over the years since 1975 the courts have sought to give guidance to...
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