Sidhu v Aerospace Composite Technology Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE BROOKE,LORD JUSTICE ROBERT WALKER |
| Judgment Date | 26 May 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0526-20 |
| Date | 26 May 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: EATRF/1999/0571/A1 |
[2000] EWCA Civ J0526-20
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Brooke and
Lord Justice Robert Walker
Case No: EATRF/1999/0571/A1
Mr. Manjit Gill Q.C. and Mr. Manjit Panesar (instructed by the Commission for Racial Equality of London for the Respondent)
Mr. Simon Cheves (instructed by Messrs Machins of Luton for the Appellant)
Aerospace Composite Technology Ltd. ("ACT") appeals from the order of the Employment Appeal Tribunal ("the EAT") on 18 March 1999 with the leave of the EAT. By that order the EAT allowed the appeal of Harbhanjan Singh Sidhu from that part of the decision promulgated on 12 March 1998 of an Employment Tribunal sitting in Bedford which by a majority dismissed Mr. Sidhu's allegation against ACT of discrimination contrary to the Race Relations Act 1976 ("the Act"). The EAT substituted a finding that Mr. Sidhu was subject to race discrimination and remitted the matter to a differently constituted Tribunal. The decision of the EAT is now reported ( [1999] IRLR 683).
Mr. Sidhu is a Sikh. He commenced employment with ACT in October 1979. Prior to the events which led to his dismissal on 6 September 1996, he had been a good worker with no serious disciplinary matters recorded against him. ACT about the time of Mr. Sidhu's dismissal was an independent company employing 330 employees at its works at Luton Airport.
For 6 consecutive years ACT organised a family day out to which employees, their families and friends were invited and Mr. Sidhu and his wife and children had attended them all without incident prior to August 1996. The family day out on that day was at Thorpe Park. A new employee, Kevin Smith, also attended with his girlfriend, her father, two friends and some children.
An argument broke out among the children which was centred on the fact that the Sidhu's son, being a Sikh, had long hair. Mrs. Sidhu intervened, was subjected to abuse and when she told Mr. Sidhu, he asked Mr. Smith if it was his children who had been teasing Mr. Sidhu's son. A fracas developed. Mr. and Mrs. Sidhu were subjected to violence and racial insults. Mr. Sidhu was set upon by Mr. Smith and two other white men. As the tribunal found, the Sidhus were the subject of a racial attack.
After being physically attacked, Mr. Sidhu picked up a plastic chair. He claimed, with the support of some witnesses, that he did so in self-defence. Some witnesses said that he wielded the chair in an aggressive manner. But at no time did Mr. Sidhu make physical contact with anyone whilst holding the chair.
ACT's management heard of the incident the next day. Following complaints from the unions about ACT's previously inconsistent methods of dealing with complaints of violence, ACT's disciplinary code provided that "violence against a fellow employee" or "violent or abusive language" amounted to gross misconduct which could lead to summary dismissal or a lesser penalty as appropriate. Mr. Sidhu and Mr. Smith were suspended pending an investigation.
On 19 and 21 August disciplinary hearings took place before a disciplinary committee chaired by ACT's Human Resources Manager, Mr. Kelly. The committee found that each of Mr. Sidhu and Mr. Smith had been guilty of violent behaviour towards a fellow employee and of using foul and abusive language and that they should be summarily dismissed.
Mr. Sidhu and Mr. Smith appealed to an appeal committee consisting of ACT's Financial Controller, Jeremy Chiappe, as chairman and two other members. The appeal committee heard evidence afresh. It rejected Mr. Smith's appeal. It was satisfied that Mr. Sidhu had used the chair in a threatening manner, but did not think that this amounted to violent behaviour in the absence of the chair making physical contact with anybody. Mr. Chiappe took the view that the determining factors were Mr. Sidhu's long service and the fact that he had clearly been provoked. The appeal committee decided to allow the appeal. But when Mr. Chiappe informed Mr. Kelly, he arranged for the committee to see ACT's Chief Executive, Mr. Barrington, who expressed surprise at their decision in a way in which the committee felt his disapproval. The question was raised whether the appeal committee had seen all the witnesses, and it was decided that further witnesses should be called. The appeal committee also saw ACT's solicitor who advised against too legalistic an approach, but said that the committee members should ascribe to the word "violence" the meaning they felt appropriate. The appeal committee received evidence from three witnesses (including one who had not been seen before), each of whom gave some evidence in support of the view that Mr. Sidhu had held the chair in an aggressive manner. That evidence was received without Mr. Sidhu or his representative being informed. Mr. Chiappe adhered to his view that Mr. Sidhu should not be dismissed. The other two members changed their view on the basis that holding the chair in an aggressive manner amounted to violence. Accordingly by a majority the decision to dismiss was upheld.
On 28 November 1996 Mr. Sidhu applied to the Tribunal, initially complaining only of unfair dismissal but subsequently adding complaints of racial discrimination and breach of health and safety regulations. The racial discrimination alleged was that of Mr. Smith and also that of ACT in investigating the incident on 4 August 1996 and in dismissing Mr. Sidhu. The Tribunal in its reserved decision dismissed the alleged breach of health and safety regulations. In respect of the racial discrimination complaint, although the incident on 4 August 1996 occurred more than 3 months before Mr. Sidhu's application, the Tribunal took the view that that and the subsequent events leading up to dismissal were part of a series of continuing acts and that in any event it would be just and equitable (under s. 68 (6) of the Act) for all those incidents to be considered by the Tribunal.
The Tribunal then considered whether ACT was vicariously liable for the acts of Mr. Smith under s. 32 (1) of the Act. It referred to the decision of the EAT in Jones v Tower Boot Co. Ltd. [1997] ICR 254 and the narrow view taken by the EAT of the statutory words "in the course of his employment", and to the correction of that view by this court on appeal ( [1997] IRLR 168). It also referred to the decision of this court in Waters v Metropolitan Police Commissioner [1997] IRLR 589, in which on the particular facts of that case the vicarious liability of the employer was not established.
The Tribunal then continued:
"14. If the events on the 4th August were outside the scope of Mr. Sidhu's employment, then [ACT] could not be vicariously liable for them, however unpleasant those acts might have been. It follows, equally, that if those events were within the course of Mr. Sidhu's employment, [ACT is] potentially vicariously liable, if the Tribunal is satisfied that that act, even though occurring more than three months from the date of presentation from the application, was either part of a series of continuing acts which culminated in an act which was in time, or that it was "just and equitable" so to extend the jurisdiction.
….
As to jurisdiction, the majority view is that the events on the 4th August were outside the scope of Mr. Sidhu's employment. The events took place at a public Theme Park. Despite the fact that it had been the employers who had organised the event and invited the participants everyone was there in their own time, and it seems likely that the majority of the participants were friends and family rather than employees. Accordingly the majority find that these events were not in the course of Mr. Sidhu's employment: but that finding does not inhibit [ACT] from proceeding to discipline either Mr. Smith or Mr. Sidhu in respect of those events, because of their obvious connection with the employment."
The Tribunal then turned to whether ACT itself had discriminated against Mr. Sidhu. It considered three authorities on discrimination. First, it referred to King v Great Britain-China Centre [1991] IRLR 513 as authority for the proposition that a Tribunal can draw inferences where an employer has committed a discriminatory act, when there is a clear case of detriment and of a difference in race and no satisfactory explanation has been offered by the employer. Second, it referred to Strathclyde Regional Council v Zafar [1998] IRLR 36 as spelling out that the Tribunal was not bound to draw such an inference and that unfair conduct was not necessarily discriminatory conduct. Third, it referred to Fire Brigades Union v Fraser [1997] IRLR 671, where it was pointed out that even in circumstances redolent of discrimination it was necessary to establish the nexus between the detrimental conduct and the causative element of sex or race discrimination.
The Tribunal said that it was clear that the case was redolent of race discrimination. But the majority found it impossible to identify evidence that ACT itself was acting in a discriminatory manner during the investigatory, disciplinary and appeal processes. The majority said this:
" …. The majority find that [ACT] set out to judge both Mr. Smith and Mr. Sidhu separately, against the test of gross misconduct. The fact that both were dismissed does not suggest discrimination, but simply that [ACT] found that in each case there had been gross misconduct. The severity of [ACT's]...
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