Tower Boot Co. Ltd. v Jones Waters v Commissioner of Police of the Metropolis
| Date | 01 December 1996 |
| Published date | 01 December 1996 |
| DOI | 10.1177/135822919600200209 |
| Author | Richard Townshend-Smith |
137
lyses the judgment.
It
concludes that the E.C.J. has only condemned
the special feature
of
the Bremen law 'which consists
in
the automa-
ticity
of
the measure, giving women an absolute and unconditional
right to appointment or promotion. Therefore, the Commission takes
the position that the only type
of
quota system which is unlawful is
one which is completely rigid and does not leave any possibility
of
taking account
of
individual circumstances. Member states and
employers are thus free to have recourse to all other forms
of
posit-
ive action including flexible quotas'.
The Commission is also putting forward an amendment to Art-
icle 2(4)
of
Directive 76/207 which would make Kalanke type meas-
ures definitively lawful.
Tower Boot
Co.
Ltd. v Jones
[1995]
I.R.L.R.
529,
Vera Sacks
Reader in Law
Kingston University
Waters v Commissioner
of
Police
of
the
Metropolis
[1995]
I.R.L.R.
531
When the Sex Discrimination Act and the Race Relations Act were
passed in the mid-1970s, the issues
of
sexual and racial harassment
had hardly surfaced.
It
was therefore not perceived that the act
against which the victim would complain could be the act
of
anyone
other than the employer. The Sex Discrimination Act 1975, s.41 and
the Race Relations Act 1976, s.32 simply stated the tort rule that an
employer was liable 'for anything done by a person in the course
of
his employment.' This ensured that, for example, where a manager
operated a recruitment policy in a discriminatory fashion, such action
could be attributed to the employer.
It
is hard to perceive how per-
sonnel decisions could be taken other than in the course
of
employ-
ment, even such bizarre behaviour as an employer's advertising
vacancies where none exist.
The assumed equation
of
vicarious liability under these statutes
with the tort approach to the issue was seen as unproblematic. That
it was also legally correct was indirectly confirmed by cases on com-
pensation holding that breach
of
the anti-discrimination legislation
was, in effect, a statutory tort. The undesirable consequences
of
this
way
of
thinking have gradually become apparent in the contexts
of
racial and sexual harassment, beginning with Irving v The Post Office
[ 1987] I.R.L.R. 289 and thrown into sharpest relief by the recent
decision in Tower
Boot
Co. v Jones.
The facts
of
this case were horrific but essentially simple. The
victim, 16 at the time, complained that fellow-employees subjected
To continue reading
Request your trial