Weathersfield Ltd v Sargent

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PILL,LORD JUSTICE SWINTON THOMAS,LORD JUSTICE BELDAM
Judgment Date10 December 1998
Judgment citation (vLex)[1998] EWCA Civ J1210-9
Docket NumberEATRF 97/1635/3

[1998] EWCA Civ J1210-9

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

Before:

Lord Justice Beldam

Lord Justice Swinton Thomas

Lord Justice Pill

EATRF 97/1635/3

Weathersfield Ltd (T/a Van & Truck Rentals)
Appellant
and
Sargent
Respondent

MR D READE (Instructed by Messrs Beachcroft Stanleys, London EC4A 1BN, London Agents for: Robert Davies Partnership, Gwent, NP5 1LU) appeared on behalf of the Appellant

MR M PANESAR [Ms Y Adedeji—for judgment] (Instructed by Commission for Racial Equality, Birmingham B1 1TT) appeared on behalf of the Respondent

1

Thursday, 10 December 1998

LORD JUSTICE PILL
2

The Facts

3

Weathersfield Ltd ("the employers") appeal against a decision of the Employment Appeal Tribunal made on 6 June 1997 whereby the employers' appeal from the decision of an industrial tribunal was dismissed. The Industrial Tribunal sitting at Cardiff held that Mrs Sargent had suffered unlawful discrimination within the provisions of the Race Discrimination Act 1976 ("the 1976 Act"). The sum to be paid in the event of such a finding had been agreed at £5,000.

4

The employers run a car and van rental business. Mrs Sargent responded to an advertisement in a local job centre and began work for them on 11 April 1996 as a receptionist. She was briefed by Mrs Clewer as to the work she was required to do and there was an issue of fact as to what she was told.

5

The Industrial Tribunal accepted, without reservation, the evidence of Mrs Sargent. She said that she was told: "We do have a special policy regarding coloured and Asians. We have got to be careful who we hire the vehicles to. If you get a telephone call from any coloured or Asians you can usually tell them by the sound of their voice. You have to tell them that there are no vehicles available". An appropriate excuse, if she had to think of one quickly, was suggested to her.

6

The applicant was stunned but made no protest at that stage. On the following day, a Friday, Mrs Sargent met Mr Paul Cavalli, a director, who asked whether "the policy" had been explained to Mrs Sargent. Mrs Clewer agreed that it had and added that she had been informed about taking calls from coloured and Asians.

7

Mrs Sargent remained in work that day but was so upset by the policy she was required to apply that she decided over the weekend that she could not continue in the job. On the following Monday she telephoned Mr Cavalli and told him, without at that stage giving the reason. She felt a little guilty about resigning so soon without making a go of it. Following a visit to the job centre and taking advice, she wrote to the employers on 18 April explaining in full why she had resigned. The letter is not with the papers but it is common ground that the employers' racialist policy was given as the reason. The employers did not reply to the letter.

8

The findings

9

The Tribunal found that in the course of her employment Mrs Sargent was asked to carry out a policy which involved unlawful discrimination against blacks and Asians. She was instructed so to do and as a result of that instruction she felt unable to continue with the work and resigned. Though the expression is not used, that appears to me, as it did to the Employment Appeal Tribunal, to be a finding of constructive dismissal.

10

The Tribunal found racial discrimination under section 1(1)(a) of the 1976 Act. That provides:

"(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."

11

Section 4(2)(c) of the Act provides:

"(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—

(c) by dismissing or subjecting him to any other detriment."

12

That finding was upheld by the Employment Appeal Tribunal.

13

The issues

14

The central submissions of Mr Reade, on behalf of the employers, are first that Mrs Sargent was not dismissed within the meaning of section 4(2)(c) and second that, if there was less favourable treatment, it was not an "racial grounds" within the meaning of section 1(1)(a). Like Mr Reade, I deal with the second point first so that the alleged dismissal can be considered in its proper context. It is submitted that for the treatment to be on racial grounds it must be related to the race of the complainant and not the race of a third party, such as the prospective customers in this case. In support of that submission, Mr Reade relies upon the equivalent section in the Sex Discrimination Act 1975, section 1(1)(a), where the language is very similar save that instead of the expression "on racial grounds", there appears the expression "on the ground of her sex". It is beyond doubt that it is the sex of the complainant which is the material consideration and, it is submitted, section 1(1)(a) of the 1976 Act should be construed in the same way.

15

Reliance is also placed upon section 1(1)(b) of the 1976 Act. That deals with indirect discrimination and provides that a person discriminates against another if "he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but"—and the criteria are set out. Section 1(1)(b) is concerned with the racial group of "that other" and, it is submitted, section 1(1)(a) should be construed in the same way.

16

I do not consider either of those submissions to be decisive. The expression "on racial grounds" must be construed on its own merits in the context of the statute. The mischief with which section 1(1)(b) deals is of a different nature. Moreover, Mr Reade concedes, and rightly concedes in my view, that a white person refused entry to a restaurant on the ground that he has a black spouse with him, or a black person because he has a white spouse, would be refused entry on "racial grounds" notwithstanding that it is the colour of the third party which led to the decision (see, in a different context, Race Relations Board v Applin [1975] AC 259 at 289). Mr Reade submits that, if there was less favourable treatment of Mrs Sargent, that treatment could be said to be no more than connected or associated with race. It arose out of instructions to her concerning the race of third parties with whom the employers were unwilling to deal. To hold that treatment of her was on "racial grounds" was to attribute to the expression a meaning it was not capable of bearing.

17

Mr Reade also relies on the fact that the public would not be without remedy for racialist instructions such as these. Section 30 of the 1976 Act provides inter alia that it is unlawful for a person who has authority over another person to instruct him to do any act which is unlawful by virtue of Parts II or III of the Act. (Part II deals with discrimination in the employment field and Part III with other unlawful acts). That section does not however give an individual a right of complaint to an industrial tribunal. Mr Reade also raises the possibility of a victimisation claim under section 2 of the 1976 Act if Mrs Sargent had been dismissed for failing to carry out an unlawful instruction.

18

Submissions were made as to whether section 1 or section 4 should be read first. I see no value in giving one priority over the other. Mrs Sargent had to establish that by the dismissal (if there was one) the employer discriminated against her (section 4(2)). She also had to establish that such discrimination was on racial grounds under section 1(1)(a). Mrs Sargent claimed that she was constructively dismissed, that she was less favourably treated than an employee who would have carried out the unlawful instruction and that such less favourable treatment was "on racial grounds". This leads back to the meaning of "racial grounds", upon which this part of the case turns.

19

Showboat and racial grounds

20

In Showboat Entertainment Centre Ltd v Owens [1984] ICR 65 a white manager of an entertainment centre was dismissed for refusing to obey an instruction to exclude all black customers from the centre. Reliance was placed upon the same paragraphs in the 1976 Act as the Tribunal applied in the present case. Giving the judgment of the EAT, Browne-Wilkinson J, as he then was, stated, p 70B, that "the words 'on racial grounds' are perfectly capable in their ordinary sense of covering any reason or action based on race, whether it be the race of the person affected by the action or others". He added, p 71C: "We therefore see nothing in the wording of the Act which makes it clear that the words 'on racial grounds' cover only the race of the complainant. … We find it impossible to believe that Parliament intended that a person dismissed for refusing to obey an unlawful discriminatory instruction should be without a remedy. It places an employee in an impossible position if he has to choose between being party to an illegality and losing his job. It seems to us that Parliament must have intended such an employee to be protected so far as possible from the consequences of doing his lawful duty by refusing to obey such an instruction … Nor do we think the existence of the Commission for Racial Equality's right to enforce section 30 affects our view: there is no reason why the individual's right to complain of the wrong done to him and the Commission's right to stop unlawful acts generally by injunction should not co-exist. We therefore conclude that section 1(1)(a) covers all cases of discrimination on racial grounds whether the...

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