TNT Express Worldwide (UK) Ltd v Brown
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE MANTELL |
| Judgment Date | 04 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0404-27 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2000 |
| Docket Number | Case No: EATRF/1999/0252/A1 |
[2000] EWCA Civ J0404-27
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Employment Appeal Tribunal
Lord Justice Peter Gibson
Lord Justice Mantell and
Mr. Justice Sumner
Case No: EATRF/1999/0252/A1
Mr. Paul Nicholls (instructed by Messrs. Hewitson Becke and Shaw of Cambridge for the Appellant)
Mr. Clive Sheldon (instructed by Messrs. Ironsides of Leicester for the Respondent)
This appeal arises out of a claim by an employee of racial discrimination by victimisation by the employer. The central issue is the characteristics of the comparators, often called "the control group", than whom the person victimised has been less favourably treated. After the conclusion of the hearing on 24 February we were informed by counsel that another constitution of this court had that day delivered judgment on that point. Our decision was therefore deferred until counsel had had the opportunity to put in further written submissions in writing and we had considered them. This has now been done.
The appeal is brought by the employer, TNT Express Worldwide (UK) Ltd. ("TNT"), from the decision on 19 January 1999 of the Employment Appeal Tribunal ("the EAT") dismissing TNT's appeal from the decision, promulgated on 7 October 1997 of an Employment Tribunal ("the Tribunal") sitting at Bedford and Bury St Edmunds. The Tribunal upheld the complaints of the employee, Victor Brown, of victimisation and unfair dismissal.
It is convenient to refer at the outset to the relevant provisions of the Race Relations Act 1976 "(the Act").
S. 1(1) provides that a person discriminates against another in any circumstances relevant for the purpose of any provision of the Act if
"(a) on racial grounds he treats the other less favourably than he treats or would treat other persons".
That is direct discrimination, in contrast to indirect discrimination the subject of para (b).
S. 2 deals with discrimination by way of victimisation:
"(1) 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 -
(a) brought proceedings against the discriminator or any other person under this Act; or
(b) ….. or
(c) ….. or
(d) …..
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do any of them."
The matters referred to in the lettered subparagraphs are often called "the protected acts".
S. 3(4) provides:
"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."
It is to be noted that this provision only applies to s. 1(1), and is not expressed to apply to s.2.
Part II of the Act relates to discrimination in the employment field, making particular types of discrimination unlawful. By s. 4(2):
"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
(a)…., or
(b) …., or
(c) by dismissing him, or subjecting him to any other detriment."
By s. 32(1) anything done by a person in the course of his employment is to be treated for the purposes of the Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
The facts
TNT carries on business in the U.K. on a very substantial scale, providing services to businesses in collecting and delivering parcels and packets. Mr. Brown, who is black, worked for TNT at its Northampton depot as a local pick-up and delivery van driver from October 1994 until he was dismissed on 21 February 1997. Earlier Mr. Brown had presented a complaint to the Tribunal, alleging racial discrimination, "unreasonable harassment" and "tampering with wages not notified to myself". The complaint was made against TNT alone, although three individuals, Mr. King and Mr. Dodds (who were TNT managers at the Northampton depot) and Mr. Gardner (who was a sub-contractor of TNT) were mentioned and were subsequently added as respondents. All the four respondents opposed the complaint. TNT had before then taken disciplinary proceedings against Mr. Brown on two occasions. On 5 February 1996 Mr. Brown was given a verbal warning and on 5 February 1997 further disciplinary proceedings, in relation to what was called "the Braitrim incident", were commenced against Mr. Brown, but adjourned.
Mr. Brown was being assisted in the presentation of his complaint to the Tribunal by the Northampton office of the Racial Equality Council. The hearing of that complaint was due on Monday 10 February 1997 and Mr. Brown arranged to see an adviser in the Council during his lunch-break on 5 February. On arrival for the appointment Mr. Brown discovered that the adviser was unable to keep it. Mr. Brown later that day asked Mr. Hobbs, who had recently been appointed Depot Operating Manager, for leave of absence from work on Friday, 7 February, for the purpose of pursuing his consultation with that adviser. Mr. Hobbs indicated that so far as he was concerned Mr. Brown could take the afternoon off but Mr. Hobbs said that he would need to refer to "personnel" for confirmation. Mr. Hobbs as Mr. Brown's line manager saw no operational reason for denying Mr. Brown's request and would have granted it if the decision had been solely his. In general TNT employees who gave at least 24 hours' notice were as a matter of custom and practice given any short leave of absence requested for domestic reasons without particularly close enquiry as to the quality of the reasons.
Mr. Hobbs (incorrectly referred to several times in subpara. (k) of para. 6 containing the Tribunal's findings of fact as Mr. Dodds) consulted his line manager, Mr. Matthews, about Mr. Brown's request for leave. The Tribunal found that Mr. Matthews decided, "apparently because [Mr. Brown] had no holiday entitlement left", that leave should be refused. Mr. Hobbs told Mr. Brown of that decision on the evening of 6 February 1997, but Mr. Brown indicated that he would have to keep his appointment with his adviser in any event. Mr. Brown worked on the morning of 7 February. At lunchtime that day Mr. Hobbs handed him a letter drafted by TNT's Employment Relations Officer, Mr. Jamieson, but signed by Mr. Hobbs confirming the decision to refuse him leave of absence that afternoon. The letter stated that Mr. Brown had already taken 20 days of his holiday entitlement of 22 days for that year. Thus Mr. Brown did have some holiday entitlement left. Mr. Brown was expressly reminded that breach of the instruction not to take leave would lead to disciplinary action which could result in summary dismissal. Despite that letter, Mr. Brown left TNT's premises at 1pm to keep his appointment. Mr. Hobbs had no operational difficulty in covering Mr. Brown's duties that afternoon.
The Tribunal hearing took place on 10 and 11 February, when the hearing was adjourned to 13 March. On 12 February Mr. Brown returned to work. He was called to meet Mr. Jamieson who discussed with Mr. Brown his absence from work on 7 February as well as the Braitrim incident and then suspended him from work.
On 21 February the outstanding disciplinary hearing which had commenced on 5 February resumed before Mr. Matthews. Both the Braitrim incident and the issues arising from his absence without leave were thoroughly considered. Mr. Matthews gave Mr. Brown a final written warning in respect of the Braitrim incident and summarily dismissed him for his absence without leave. That decision was confirmed by letter to Mr. Brown on 24 February. Mr. Brown appealed under TNT's internal appeals procedure. The appeal was heard on 7 March by Mr. Bedborough, TNT's Midland Area General Manager. The Tribunal described the appeal as "a very full rehearing of both the relevant issues." Mr. Bedborough dismissed the appeal subject only to the substitution of dismissal on notice instead of summary dismissal for Mr. Brown's absence without leave.
On 13 March at the adjourned Tribunal hearing Mr. Brown, then acting in person, obtained leave to amend his complaint to include unfair dismissal and victimisation under the Act. The hearing continued on 14 March and on four days in July and on yet a further day in August 1997. In the decision promulgated on 7 October 1997 the Tribunal dismissed all Mr. Brown's complaints against the individual respondents and some of the complaints against TNT. As none of those decisions was the subject of appeal by Mr. Brown, I need say nothing further about them. But the Tribunal decided that TNT had discriminated against Mr. Brown contrary to the Act by refusing him time off work to consult and take advice about his complaint to the Tribunal of racial discrimination and by dismissing him. It also found that his dismissal was unfair. It said that the refusal by TNT to accede to Mr. Brown's request for leave of absence amounted to discrimination by way of victimisation which was unlawful under s. 4(2)(c) of the Act in subjecting him to a detriment. The Tribunal referred to its findings, the relevant parts of which I have...
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