Newham London Borough Council v Conwell
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1999 |
| Date | 1999 |
| Court | Employment Tribunal |
Local authority – Child in care – Racial discrimination – Unlawful to discriminate on racial grounds against person seeking facilities or services – Whether local authority providing facilities or services for children being looked after by them – Whether local authority’s refusal to allow black child to go on holiday with white family unlawful racial discrimination – Race Relations Act 1976, s 20 – Children Act 1989, s 22(1).
The applicant was a social worker employed by the local authority. As a result of certain events he brought claims before an employment tribunal which found that he had been unfairly dismissed and had been discriminated against on grounds of his race and sex by the local authority and he was awarded compensation. In addition, the applicant claimed that he had been victimised contrary to s 2(1)(d) of the Race Relations Act 1976 because of a complaint he had made about the local authority’s refusal to allow a black child in care to go on holiday with a white family. That amounted to an allegation that the local authority had acted in breach of s 20 of the 1976 Act, which provided that it was unlawful for any person providing facilities or services to discriminate on racial grounds against a person seeking those facilities or services by refusing or deliberately omitting to provide him with any of them. The tribunal found that the local authority’s decision not to allow the child to go on holiday with a white family was not an act of unlawful discrimination within the scope of s 20 and, therefore, that the applicant had not been victimised contrary to s 2(1)(d). The applicant appealed from the finding that the local authority’s decision did not fall within s 20. The local authority submitted that if a care order had not been made and they were accommodating the child under Pt III of the Children Act 1989, s 20 of the 1976 Act would apply as they did not have parental responsibility for the child; whereas if a care order had been made under Pt IV of the 1989 Act, they would have parental responsibility and consequently could not be said to be providing goods or services within s 20 of the 1976 Act.
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a Section 2(1) of the 1976 Act, so far as material, provides: ‘A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has ... (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act ...’
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Held – By virtue of the terms of s 22(1) of the 1989 Act the general duty of a local authority in relation to children looked after by them applied not only to children in care but also to children being accommodated by them and was not dependent upon the local authority having parental responsibility. Therefore, the issue of whether or not the local authority had parental responsibility did not determine the application of s 20 of the 1976 Act. By s 17 of the 1989 Act a local authority were required to provide services appropriate to children in need and by s 105(1) of that Act ‘service’ included ‘any facility’. Giving the words of s 20 of the 1976 Act their normal meaning and having regard to their context and the purpose of the Act, they covered the activities of a local authority in respect of a child being looked after by them. It followed that when a local authority were looking after children they were persons concerned with the provision of goods, facilities or services within s 20 of that Act. Accordingly, the appeal would be allowed.
Cases referred to in judgment of the tribunalAmin, Re [1983] 2 AC 818; sub nom Amin v Entry Clearance Officer, Bombay [1983] 2 All ER 864, [1983] 3 WLR 258, HL; affg [1983] 2 All ER 864, CA.
Applin v Race Relations Board [1975] AC 259, [1974] 2 All ER 73, [1974] 2 WLR 541, HL.
Charter v Race Relations Board [1973] AC 868, [1973] 1 All ER 512, [1973] 2 WLR 299, HL.
Farah v Commr of Police of the Metropolis [1998] QB 65, [1997] 1 All ER 289, [1997] 2 WLR 824, CA.
Kassam v Immigration Appeal Tribunal [1980] 2 All ER 330; sub nom R v Immigration Appeal Tribunal, ex p Kassam [1980] 1 WLR 1037, CA.
Nagarajan v London Regional Transport [1998] IRLR 73, CA; rvsd [1999] 4 All ER 65, [1999] 3 WLR 425, HL.
Savjani v IRC [1981] QB 458, [1981] 1 All ER 1121, [1981] 2 WLR 636, CA.
Telephone Information Services Ltd v Wilkinson [1991] IRLR 148, EAT.
Waters v Commr of Police of the Metropolis [1997] ICR 1073, CA.
AppealThe applicant appealed from a decision of an employment tribunal that a decision of his employer, a local authority, not to allow a black child in care to go on holiday with a white family was not in breach of s 20 of the Race Relations Act 1976, under which it was unlawful for any person providing facilities or services to discriminate on racial grounds against any person seeking those facilities by refusing or deliberately omitting to provide him with any of them. The facts are set out in the judgment of the tribunal.
Martin Griffiths (instructed by Magrath & Co) for the applicant.
David Daly (instructed by the local authority solicitor) for the local authority.
Cur adv vult
8 July 1999. The following judgment of the tribunal was delivered.
CHARLES J(giving the judgment of the tribunal).
This is an appeal by Mr Conwell against a part of the decision of an industrial tribunal (now an employment tribunal, and we shall refer to it as such) which sat on one day in October 1997 and four days in May 1998. The employment tribunal found that Mr Conwell had been unfairly dismissed and that he had been discriminated against on grounds of his race and sex by the respondents, the London Borough of Newham.
1. The employment tribunal awarded Mr Conwell compensation and its extended reasons were sent to the parties on 13 July 1998.
2. We are grateful to the employment tribunal for their full and clear reasons. Their findings of fact show that Mr Conwell was treated poorly and unlawfully by the London Borough of Newham through some of their employees.
3. In addition to the claims on which he succeeded before the employment tribunal Mr Conwell brought a claim that he had been victimised contrary to s 2(1)(d) of the Race Relations Act 1976 because of the complaint that he made about the refusal to allow a black child in care (P) to go on holiday with a white family, the B family.
4. It is this claim that is the subject of this appeal.
Background facts5. We set these out by quoting part of the findings of fact set out in para 4 of the extended reasons, namely:
‘4. The Tribunal made the following findings of fact, based upon the oral and documentary evidence placed before it.
(a) The Applicant commenced employment with the Respondent in January 1990, as a social worker. He worked part time. The Respondent had a large Social Services Department, and had statutory responsibility for children in need within its area. The Applicant had no disciplinary record, or history of complaints about him from service users or other staff or his managers.
(b) In 1993, the Applicant was employed as a social worker in the children’s permanent placements team. In the summer of 1993 a decision was made by Ms Whittle-Sayers, the Applicant’s Team Manager, that one of the children for whom the Applicant was responsible (a teenage boy, named [P], who was in care) would not be permitted to go to Butlins for a 4 day holiday with his schoolfriend and his family, the [B] family.
(c) The reason given in the Notice of Appearance for the decision was that the police checks on the family had not been completed in time. However it was conceded at the hearing that this was not true. The Tribunal found that the principal reason for the decision was that [P] was black (he was Nigerian) and the [B] family was white (Italian/English) and Ms Whittle-Sayers believed it was culturally inappropriate for him to holiday with a white family. She thought he should be concentrating on building his racial
identity as a black person, mixing with black people, with a view to being fostered by a black family. She added, for the first time at the Tribunal, that a white family would not protect him adequately from any racial abuse or threats he might receive while on holiday.
(d) There was no other objection to the [B] family, apart from their colour. The requisite home visit and report had been done; the necessary police checks had been completed; and [P] had previously been given permission by the Respondent to attend a youth club holiday led by the father of the [B] family. Following this incident, the [B] family was subsequently approved for the purpose of visits by [P].
(e) Ms Mitchell and Ms Senior, two members of staff at [P]’s Children’s Home, also objected to the holiday. Ms Mitchell said to the Applicant “You are not black, you don’t know what it is like to be black. This young man has a hard life ahead of him and having little treats now will not help him to come to terms with reality.”
(f) The Tribunal found that if the family had been a black family, Ms Whittle-Sayers would have allowed [P] to go on the holiday. If [P] had been white, Ms Whittle-Sayers would have allowed [P] to go on the holiday.
(g) The Applicant was notified of the decision on 9 August 1993 when he returned from holiday and objected strongly to it, believing that it was professionally wrong and that [P] was being treated unfairly and being discriminated against on the grounds of race.
(h) The guidance from the Department of Health was to encourage young people to make friends outside the care system, for example in schools or youth clubs (Children Act 1989 Guidance and Regulations: Vol 4; Residential Care, para 7.46). He felt...
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