Race discrimination 1: direct discrimination

(Similar substantive protection is now extended to Northern Ireland by virtue of the Race Relations (Northern Ireland) Order 1997².)

Having so defined what amounts to discrimination, the RRA goes on to say that discrimination of that kind, as manifested in certain separate fields, amounts to unlawful conduct. In relation to employment and recruitment for employment, the relevant provisions are contained in Part II of the Act (see part three of this series). But nothing in Part II can render anything unlawful, unless the acts alleged involved discrimination falling within Part I. Later parts of the Act deal with the constitution and powers of the CRE, enforcement of the Act and remedies.

In addition, the Act is supplemented in the employment context by the CRE Code of Practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment³. A failure on the part of any person to observe a provision of the Code does not in itself render him or her legally liable in any proceedings. But the Code is admissible in evidence in any proceeding under the RRA before an industrial tribunal, and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings "it shall be taken into account in determining that question" (s.47(10) of the RRA). Indeed, a failure so to do may render a tribunal decision open to appeal (see Berry v Bethem & Maudsley NHS Trust ).

Our series broadly follows the structure just outlined. This first article begins by introducing the concept of direct discrimination.

Definition of direct discrimination

Direct discrimination is defined in s.1 of the RRA as follows:

(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 ...

Segregating a person from other persons on racial grounds is deemed to be treating him or her less favourably than they are treated (s.1(2)). Accordingly, if an employer keeps a person apart from others on grounds of his or her race, that amounts to unlawful direct discrimination by the employer. If, however, the fact that all the workers in a section or on a shift at the employer's undertaking are of one particular racial group arises by the self-selecting acts of those employees themselves (for example, in insisting on word-of-mouth recruitment amongst friends and family), the failure of the employer to intervene and to insist on workers of other racial groups going into the section or onto the shift, contrary to the wishes of the employees therein, does not amount to segregation under s.1(2) (see Pel Ltd v Modgill)

More generally, the comparison of the case of a person of a particular racial group with that of a person not of that group under s.1(1)(a) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other (s.3(4)).

The s.1(1)(a) definition can usefully be broken down into three key elements. It must be demonstrated that:

LESS FAVOURABLE TREATMENT

Less favourable treatment for the purposes of the RRA generally involves the denial or narrowing of opportunities afforded to an individual, some deprivation of choice offered or some other differentiated and detrimental treatment.

In Jeremiah v Ministry of Defence, the Court of Appeal concluded (in the context of a case under the almost identically-worded provisions of the SDA) that the effect of a work practice relating to the employer's "colour bursting shop" was that an overtime volunteer would be periodically directed there if that person was a man, but not if that person was a woman. The colour bursting shop was not a nice place to work. The atmosphere was obnoxious. The man's treatment was therefore less favourable than a woman's, and he was therefore subjected to a detriment. Lord Justice Brightman nevertheless observed that the mere deprivation of choice for one sex, or some other differentiation in their treatment, is not necessarily unlawful discrimination. The deprivation of choice, or differentiation, in the sort of case the Court was considering, had to be associated with a detriment. It was possible to imagine a case where one sex has a choice but the other does not, yet there is nevertheless no detriment to the latter sex. "I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment. It may be said that, on this interpretation, both a male and female worker might complain about the same discrimination and that both may be right. I see no anomaly in such a result," Brightman LJ said [our emphasis].

In R v Birmingham City Council ex parte EOC (another SDA case), the House of Lords said that it was not necessary for the EOC to show that selective education was "better" than non-selective education: "It is enough that, by denying girls the same opportunity as the boys, the council is depriving them of a choice which is valued by them, or at least by their parents, and which (although others may take a different view) is a choice obviously valued, on reasonable grounds, by many others" (per Lord Goff).

But the mere fact that an employee honestly believes that he or she is being less favourably treated or is being demeaned does not of itself establish less favourable treatment under the RRA (or SDA). The EAT in Burrett v West Birmingham Health Authority said that there is no warrant for any such subjective interpretation of the Act's provisions. The question of what amounts to less favourable treatment is for industrial tribunals to decide. On the facts of Burrett, the EAT said that the tribunal had reached the "eminently sensible" conclusion that the fact that nurses' uniforms differed for men and for women did not amount to less favourable treatment because the applicant objected to one particular part of the uniform and was disciplined as a result. It was right, in the EAT's view, not to treat the applicant's honestly-held belief that wearing a nurse's cap was demeaning as determinative of the question of less favourable treatment. Conversely, the EAT accepted that the fact that a majority of female nurses had voted to retain caps did not of itself establish that the requirement to wear caps did not constitute less favourable treatment.

Margin of appreciation?

In appropriate circumstances, words or acts of discouragement to an employee or prospective employee can amount to "less favourable treatment" of the person discouraged. In Simon v Brimham Associates, the Court of Appeal nevertheless upheld an industrial tribunal's decision that the complainant was treated in exactly the same way as any other candidate for employment, whatever his or her race or religion might have been, which involved a finding that the specific words to which the applicant took exception - "if, for instance, you were of the Jewish faith, it might preclude your selection for the job" - were words which the interviewer in question would have used to explain the reason for the inclusion of a question about their religion to any applicant (for a job with an Arab employer) who had been offended by its being asked. On that finding of fact, the tribunal was perfectly entitled to find that those words of discouragement did not amount to discrimination in the sense of less favourable treatment.

That there seems to be a perhaps worrying margin of appreciation for tribunals in determining what amounts to less favourable treatment is further exemplified by the EAT's judgment in the SDA case of Stewart v Cleveland Guest (Engineering) Ltd. Mr Justice Mummery said that the industrial tribunal correctly directed itself on the relevant law, and identified the treatment in question as continuing to permit the display of pictures of nude and partially-clothed women and failing to deal with Ms Stewart's complaint about such pictures properly. The tribunal had asked whether that treatment was less favourable to Miss Stewart than it was or would have been to a man, and concluded that it was not. A man might well have found such a display as offensive as did Ms Stewart - albeit on moral, not sexual, grounds - and would have been treated in the same way had he complained.

The EAT emphasised that it is rare for a tribunal's decision to be overturned on the grounds of perversity: "The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no 'right answer'... We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the industrial tribunal. It heard evidence from the witnesses, saw the material which Miss Stewart found to be offensive and considered the detailed arguments on the law and the facts. There is, of course, room for disagreement among different groups of people, such as tribunals, as to what is or is not less favourable treatment and as to the extent to which women in the workplace are vulnerable to such treatment."

This decision must be regarded as at best dubious, and it must be extremely doubtful whether its reasoning could legitimately be translated to the display of arguably racist or racially demeaning material in an analogous case under the RRA (see part three of this series).

Unreasonable not less favourable

A further disquieting development has seen a fairly consistent line of authority asserting that "incompetence", bad management or unreasonable employer behaviour does not, without more, become discrimination merely because the person affected by it is from an ethnic minority.

That sentiment derives from the Court of Appeal's judgment in Qureshi v London Borough of Newham). The Court criticised the industrial tribunal's opinion that an employer's equal opportunities policy, including the policy relating to employee references, was intended to apply generally, and indeed equally. Therefore, the tribunal assumed that the policy would have been applied properly to a person of different racial origin from Mr Qureshi. The policy was not applied properly to him, therefore resulting in discrimination against Mr Qureshi. The defect in that process of reasoning, said Lord Justice Leggatt, was in the assumption that the policy would have been properly applied to persons of different racial origin from Mr Qureshi. The failures to which the industrial tribunal invited attention were, as it had found, not deliberate. There was, therefore, no jurisdiction for assuming, still less for inferring or finding as fact, that, because the policies were not applied to Mr Qureshi, the failure must have been due to discrimination. In the absence of any hint of prejudice on racial grounds, the more natural inference from a failure in relation to one person is that there would have been failure in relation to others, if not to all.

In Zafar v Glasgow City Council, Lord Browne-Wilkinson (delivering the opinion of the House of Lords), affirmed that: "The RRA requires it to be shown that the claimant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another. In deciding that issue, the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant in which case he would not have treated the complainant 'less favourably' for the purposes of the [RRA]. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee 'less favourably' for the purposes of the [RRA]."

His Lordship could not, he said, improve on the reasoning of Lord Morison in the Court of Session below, who had expressed the position as follows: "The requirement necessary to establish less favourable treatment which is laid down in the [RRA] is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the circumstances, but of less favourable treatment than that which would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another employee in the same circumstances."

The Zafar dictum was applied by the Court of Appeal in Martins v Marks & Spencer plc: "In a complaint under the 1976 Act the focus is not on whether the conduct of the employer or putative employer towards the complainant is biased or unreasonable or unfair", said Lord Justice Mummery. The Court concluded that a tribunal's finding - that the assessment by an interview panel that a job applicant of Afro-Caribbean origin was "inarticulate" was so perverse as to amount to "bias" - was not a meaningful finding for the purposes of the RRA. It could not of itself provide a sufficient basis for an inference of less favourable treatment. The tribunal had failed explicitly to compare the job applicant's treatment with that which was or would have been received by a comparable person of a different racial group. More generally, tribunals were warned that they should not substitute their own views of the impression which a complainant would have made on them for those of the employer (or in Martins, the interviewers): "Indeed, the tribunal did not simply substitute its overall impression of Ms Martins as a candidate in the hypothetical interview conducted by them: it combed through each of the criteria applied in the interview and explained the reasons why it disagreed with the assessments made by the actual interviewers of Ms Martins applying those criteria."

And this trend was continued by the EAT in Alexandra Healthcare NHS Trust and another v Effa. Again applying Zafar and Qureshi, His Honour Judge Peter Clark noted that the industrial tribunal had found that an Asian locum doctor had been badly treated in the manner of the summary termination of his appointment. It had found that locums were not treated with full professional respect because they did not fit into the "white career profile". But, said the EAT, that perception applied equally to black and white locums. There was no basis for the tribunal's assumption or inference that a comparable white doctor, who was similarly subject to a number of complaints about his professional competence, would have been treated any differently. "Unreasonable treatment does not, without more, become discrimination merely because the person affected by it is from an ethnic minority," Judge Clark concluded.

Differential impact

As a partial corrective to such developments, it now seems that - notwithstanding the comments in Burrett (above) on the weight to be attached to the subjective views of complainants - what appears to be a single act applicable to all employees may in certain circumstances be rendered less favourable treatment as a result of the different responses of particular employees.

In Weathersfield Ltd t/a Van & Truck Rentals v Sargent, the EAT identified the treatment in the case as imposing an unlawful condition in repudiatory breach of contract, in the form of an instruction not to hire out vehicles to coloured or Asian clients (contrary to s.30 of the RRA - see part three ). This was regarded by the complainant as putting her in an intolerable position, and caused her to resign her employment. It seemed to the EAT that although in one sense the employer had simply done a single act, in another sense it was an act which affected employees differentially, so that some, but not all, regarded themselves as the victims of mistreatment. Therefore, it is not just the act to which attention is drawn, but the differential impact that a single act may have upon different employees: "The actual or hypothetical comparator to be used under s.1 was somebody who was prepared to go along with the employer's unlawful instruction."

In those circumstances, the EAT concluded, it was not difficult to say that the complainant had been less favourably treated by comparison with such another person, because she, unlike the comparator, did not regard herself as being able to continue to work with an employer who operated such a policy, and did regard herself as being put in an intolerable position as an employee.

THE "BUT FOR" TEST

It is now well established that the application of s.1(1)(a) of the RRA does not require a subjective intention to discriminate on racial grounds, or a conscious discriminatory motive, on the part of the alleged discriminator.

Again addressing the analogous wording in the SDA, the House of Lords in R v Birmingham City Council ex parte EOC stated: "There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment [in this case, denial of the same opportunities for selective education] as the boys but for their sex. The intention or motive of the defendant to discriminate ... is not a necessary condition to liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did discriminate on the ground of sex" (per Lord Goff). Indeed, said Lord Goff, if a discriminatory motive or intention were required, it would be a good defence for an employer to show that it discriminated on grounds of sex [or, for present purposes, on racial grounds] not because it intended to do so, but because, for example, of customer preference, or to save money, or even to avoid controversy.

This approach was further entrenched by the seminal opinion of their Lordships in James v Eastleigh Borough Council. Again, in the context of a sex discrimination complaint (involving the application of differential age requirements, based on the state pension age of 65 for men and 60 for women, for free access to Council swimming facilities), Lord Bridge phrased the question thus: "Would the plaintiff, a man of 61, have received the same treatment but for his sex?" The subjective reason for the differential treatment was quite irrelevant, and the "purity of the discriminator's subjective motive, intention or reason for discriminating could not save the criterion applied from the objective taint of discrimination on the ground of sex".

Lord Goff observed that if it were necessary to identify the requisite intention of the alleged discriminator in direct discrimination cases, "that intention is simply to perform the relevant act of less favourable treatment". Whether or not the treatment is less favourable in the relevant sense - that is, on the ground of sex or on racial grounds - may derive either from the application of a gender-based or race-based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex or on racial grounds. In either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from a benign motive.

Cases of direct discrimination under s.1(1)(a) of the RRA can thus be considered by asking the question: Would the complainant have received the same treatment from the defendant but for racial considerations? This test possesses the double virtue that, on the one hand, it embraces both of the above possibilities, and "avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuse of those elusive terms ..." (per Lord Goff in James).

The irrelevance of an immediate or overt discriminatory intention or motive on the part of the alleged discriminator is amply illustrated in R v CRE ex parte Westminster City Council. There the Court of Appeal accepted there was material on which the CRE (in conducting a formal investigation ) could have been satisfied that the employer (through one of its managers) had discriminated against an employee in his application for transfer to a post as a refuse collector by bowing to the pressure of the other refuse collectors and by treating him in a way in which he would not have done had he been white. The appointment had been withdrawn not because the manager was afraid of industrial action based on an alleged breach of a collective procedure agreement relating to staffing, but because he was afraid of such action based on a racially-motivated objection to the employee's transfer by the other workmen. It was irrelevant that the manager who took the decision was not himself consciously racially motivated.

Race need not be sole cause

It is clear that racial grounds need not be the sole cause of the less favourable treatment alleged in order for direct discrimination to be established.

In Owen & Briggs v James, for example, the Court of Appeal upheld an industrial tribunal's decision that some of the grounds put forward by the employer for not employing the complainant (a coloured Englishwoman) as a shorthand-typist (in particular in relation to the complainant's allegedly "unfriendly demeanour" and inexperience, although one of the posts advertised required no experience) were not genuine. In addition, remarks made to the successful white candidate interviewed on the same afternoon (to the effect that the interviewer "could not understand why an English employer would want to take on a coloured girl when English girls are available") showed that colour was part of the employer's thinking in regard to its refusal to appoint the complainant and that it was an important factor in its failure to consider her further. The Court rejected any proposition that there can be no discrimination unless the racial factor is the sole reason for not employing an applicant for employment as being "quite unwarranted by the language of the Act". Lord Justice Stephenson approved the EAT's view that if a tribunal finds that a "substantial reason" for what has happened is because of the complainant's race, the tribunal is entitled to say that there has been a breach of the Act.

This view was implicitly underlined by the EAT in the victimisation case of Nagarajan v Agnew (see part two of this series), Mr Justice Knox commented: "Where an industrial tribunal finds that there are mixed motives for the doing of an act, one or some but not all of which constitute unlawful discrimination, it is highly desirable for there to be an assessment of the importance from the causative point of view of the unlawful motive or motives. If the industrial tribunal finds that the unlawful motive or motives were of sufficient weight in the decision-making process to be treated as a cause, not the sole cause but as a cause, of the act thus motivated, there will be unlawful discrimination. An important factor in the decision is clearly within that principle."

Similarly, in O'Neill v Governors of St Thomas More RCVA Upper School and another (another SDA decision), the EAT under Mr Justice Mummery more recently confirmed that the test to be applied in determining whether treatment is directly discriminatory on the grounds of sex or on racial grounds is not one of the subjective mental processes of the employer, ie as to its intentions, motives, beliefs or subjective purposes. Those considerations may be relevant to remedies for discrimination, but they are not relevant to liability - "consideration of motives is to be avoided." Following James v Eastleigh, said the EAT, the condition of liability in the expression "on the ground of her sex" (or, by analogy, "on racial grounds") is "an objective test of causation".

The basic question is, therefore, what, out of the whole complex of facts before the tribunal, is the "effective and predominant" or "real and efficient" cause of the act complained of? As a matter of common sense, not all the factors present in a situation are equally entitled to be treated as a cause of the crucial event for the purpose of attributing legal liability for consequences. The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of (though it must provide more than just the occasion for the result complained of).

Non-racial factors

By contrast, some other factor may legitimately be found to be the true, substantial and effective cause of the allegedly less favourable treatment of a complainant.

For example, in Instron Ltd v Denny, the EAT overturned a tribunal's finding of unlawful direct discrimination and concluded that misconduct (in the form of violence by the complainant towards a fellow employee) and not race was the true reason for dismissal. The tribunal had found 100% contributory fault, "and that could only be found on the basis that conduct was in effect the sole cause of the decision to dismiss". Any inference of direct discrimination was here not justified on the tribunal's clear findings of primary fact.

In Barclays Bank plc v Kapur (No.2), the Court of Appeal held that an industrial tribunal had erred in finding that the appellant employees of East African-Asian origin had been discriminated against on racial grounds when they took up employment in the UK with Barclays Bank in that the bank had refused to credit their past service with banks in Africa as pensionable service but had credited the previous service of employees of European origin. In finding that there was discrimination on racial grounds on the basis of the decisions of the House of Lords in R v EOC ex parte Birmingham CC and James v Eastleigh that the motive of the discriminator is immaterial, the industrial tribunal had wholly misunderstood the effect of those decisions. What those cases decided was that where a "gender-based" criterion was applied, it did not matter that the motive was benign. The situation in the present case was in no way comparable. It was clear that the reason for the refusal to credit the appellants with their East African service for pension purposes was because they had already been compensated for that loss of pension rights. In any event, none of the possible reasons considered by the Tribunal for refusing to credit the appellants with their East African service was an inherently racially-based criterion. Accordingly, there was no evidence to establish direct discrimination.

As Sir Ralph Gibson put it, the receipt by the appellants of the compensation given to East African Asians upon "Africanisation" of the Kenyan economy by the Kenyan Government could not be regarded as a race-based criterion for determining whether previous service should be credited. The argument that it was inherent in its use that East African Asians would be treated differently from white comparators could not be accepted. Nor could the case be regarded as falling within the "but for" test set out in James v Eastleigh Borough Council in that but for the fact that they were members of the group of displaced Asians leaving East Africa, the appellants would have been credited with their previous service. The reason for the discrimination was that the appellants had received compensation and white employees engaged at the same time had not been paid such compensation. That was not a race-based criterion. Correctly applying the "but for" test, the appellants, having lost their jobs because of Africanisation and having been paid compensation in respect of their years of service, would have received the same treatment from the respondents irrespective of their race.

More than background factor

It follows that the mere fact that racial matters or issues form part of the background to a complaint will not be sufficient to establish that any less favourable treatment was necessarily on racial grounds.

In Seide v Gillette Industries Ltd, the EAT accepted that the fact that the matter in question, involving the repeated transfer of the complainant, may not have occurred had he not been Jewish was not sufficient. (The initial problems in the case stemmed from anti-Semitic remarks allegedly made to the complainant, Mr Seide, by a colleague, Mr Garcia.) The tribunal had to ask itself: Which was the effective or activating cause for the steps taken by the employers? That there may be factors of race in the background is insufficient. But, there can be more than one ground for a particular step being taken by an employer, and if one of those - a substantial and effective cause of its actions - is a breach of the Act, that might well be enough.

The EAT held that, on the facts of Seide, the industrial tribunal had been entitled to find that the ground on which the employer transferred Mr Seide for a second time was the attitude of another colleague, Mr Murray - who was unwilling to remain in a situation in which Mr Seide sought to involve him in the ongoing antagonism with Mr Garcia, and who had personal problems with Mr Seide unrelated to the latter's ethnic origin - and the "difficult industrial situation" that had resulted within the particular section of the factory.

On the other hand, the EAT observed that if the company had moved Mr Seide because it was anti-Semitic, or transferred him because another employee was anti-Semitic and it was not willing to move the latter, that would amount to racial discrimination within the meaning of the Act. It would be the same as the situation where an employer refuses to appoint or promote or demotes someone because of racial attitudes on the part of, not the employer, but its employees (see R v EOC ex parte Westminster).

And if the immediate or ostensible reason or cause of less favourable treatment can be found to have racial origins, unlawful direct discrimination may be established. Thus, in Din v Carrington Viyella Ltd, the EAT said that the employer's conscious motive for taking a particular course of action, whilst it may be relevant, is not the decisive factor. What has to be inquired into is the reason why a particular course was adopted: the question is, "Was it on racial grounds?" If the decision involved drawing a distinction between, for example, coloured and white employees, then it will be discriminatory even though the motive lying behind it did not necessarily involve a prejudice of a racial kind (ie there was no desire to injure coloured workers).

The industrial tribunal in Din had erred by looking in isolation at the decision not to re-engage an Asian employee following extended leave, and in concluding that that decision was taken for industrial reasons - that is, the potential unrest amongst his erstwhile colleagues which his re-engagement would have involved. It had not been concerned with any racial discrimination which lay behind that unrest. Such an approach was, the EAT asserted, an unacceptable extension of the decision in Seide v Gillette. If an act of racial discrimination gives rise to actual or potential industrial unrest, an employer will or may be liable for unlawful discrimination if it simply seeks to remove that unrest by getting rid of, or not re-employing, the person against whom racial discrimination has been shown.

It was consequently wrong in law simply to look at the position when the appellant was refused re-engagement, without considering the nature of the "unresolved and potentially explosive" situation that existed as a result of the events before he left. If that situation - which arose as a result of an original "unhappy incident" between Mr Din and a supervisor and consequent unrest and threats of industrial action amongst Mr Din's compatriots when the supervisor was not instructed by his superiors to apologise - was due wholly or in part to racial discrimination, and the reason for not re-engaging the appellant was to prevent a recurrence of such racially prejudiced acts, that would constitute grounds for holding that the failure to re-engage amounted to racial discrimination by the employer.

Nor could it be accepted that even if there was a racially discriminatory act done by the supervisor, that could not influence a decision as to whether the failure to re-engage was discriminatory because the act took place more than three months before the proceedings in the present case were commenced. Section 68(1) of the RRA prevents an act occurring more than three months before proceedings are started being treated as the cause of action giving rise to a remedy under the Act (see part four of this series). It does not say that no regard shall be had to any discriminatory acts done outside the three-month period. Though no damages or other relief could be obtained relying simply on acts done outside that period, it does not follow that acts done within the three months' period which are related to acts done outside the three months' period are incapable of giving rise to a cause of action.

In Ismail v Eastern Ravens Trust Ltd, the EAT referred with approval to Din, and said that if Ms Ismail had ostensibly been dismissed because of her "negative" and critical attitude towards her employer, but that that negative attitude was itself the result wholly or partly of racial discrimination by the employer in its earlier failure properly to investigate certain of her grievances, then the dismissal itself might amount to unlawful direct discrimination under the RRA.

Grounds of another's race

The phrasing of s.1(1)(a) of the RRA, in terms that outlaw less favourable treatment "on racial grounds", means that A can discriminate against B on the grounds of C's colour, race, nationality or national or ethnic origins (these terms are considered below ).

In Zarczynska v Levy, for example, a white barmaid was dismissed for refusing to comply with an instruction not to serve black customers. According to the EAT, it could be said that "in dismissing the one barmaid because she wanted to serve some coloured men, and not dismissing a barmaid who was prepared to apply the embargo", the employer treated the former less favourably on racial grounds. Mr Justice Kilner-Brown stated: "We are of the opinion here that if Parliament had had pre-knowledge of this unfortunate lady's predicament they would have made clear that the great civilised principle upon which the Act was based was one which overrode all apparent limitations expressed in other sections which had the effect of denying justice to someone who was victimised."

And, in Showboat Entertainment Centre Ltd v Owens, the EAT under Mr Justice Browne-Wilkinson (as he then was) accepted that the main thrust of s.1(1)(a) is to give protection to those discriminated against on the grounds of their own racial characteristics. But, he said, the words "on racial grounds" are perfectly capable in their ordinary sense of covering any reason for an action based on race, whether it be the race of the person affected by the action or of others.

There is nothing in the Act which makes it clear that the words "on racial grounds" cover only the race of the complainant, said Browne-Wilkinson J: "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 ... We therefore conclude that s.(1)(1)(a) covers all cases of discrimination on racial grounds whether the racial characteristics in question are those of the person treated less favourably or of some other person. The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations." (See also Weathersfield Ltd v Sargent ).

Comparing like with like

It would seem to be axiomatic that in determining whether an individual has been treated less favourably than another is or would have been treated, the comparison must be such that "the relevant circumstances in the one case are the same, or not materially different, in the other" (s.3(4)). That is, it is a comparison of like with like.

In Showboat Entertainment v Owens, the EAT made the further seemingly obvious point that, although one has to compare like with like, the comparison must be between the treatment actually meted out and the treatment which would have been afforded to a man or woman having all the same characteristics as the complainant except his or her race or attitude to race: "Only by excluding matters of race can you discover whether the differential treatment was on racial grounds. Thus, the correct comparison in this case would be between Mr Owens and another manager who did not refuse to obey the unlawful racialist instructions."

This accords with the approach of the House of Lords in James v Eastleigh Borough Council towards the almost identically worded "comparison" provision in s.5(3) of the SDA. Lord Griffiths stated that because state pensionable age was itself inherently sexually discriminatory, it could not be treated as a relevant circumstance in making the required comparison. The relevant circumstance which was the same in that case for the purpose of comparing the treatment of the plaintiff and his wife "was that they were both aged 61".

In this light, the Court of Appeal's attempt to distinguish James in Dhatt v McDonalds Hamburgers Ltd, must be regarded as unconvincing and arguably incorrect. In Dhatt, the Court of Appeal held that McDonalds did not discriminate on grounds of nationality by requiring an Indian national to produce evidence of his right to work in the UK, even though they did not make a similar request to British and EEC citizens. Lord Justice Neill stated that: "In the case of someone seeking work his nationality is a relevant circumstance because Parliament itself recognises and seeks to enforce by reference to nationality a general division between those who by reason of their nationality are free to work and those who require permission." Lord Justice Stocker said that the true comparators were therefore those who were neither British citizens nor from the EEC, some of whom require a permit to work while others do not. On that basis, there was no discrimination on grounds of nationality against Mr Dhatt, since all non-British and non-EEC persons of whatever nationality were treated equally by McDonalds. In James v Eastleigh, Stocker LJ continued, the council had voluntarily adopted a criterion based on a discriminatory statutory provision. Here the employer had "no alternative but to enquire whether or not an applicant was lawfully entitled to accept employment".

Note: We address the whole range of discrimination issues that arise in respect of the treatment of foreign workers and, in particular, the potential problems raised for employers attempting to avoid falling foul of the relatively new offence under s.8 of the Asylum and Immigration Act 1996 (of unlawfully employing someone aged 16 or over who is subject to immigration control, unless he or she is a person who is entitled to be employed in the UK), in Foreign workers 2: unfair dismissal, discrimination and illegal working.

DRAWING INFERENCES

The burden of proving (on the balance of probabilities) discrimination on racial grounds falling within s.1(1)(a) of the RRA is formally on the applicant. It has nevertheless long been recognised by courts and tribunals that employers will rarely admit to such discrimination, and that there will consequently often be little direct evidence of it. Much will therefore depend on the willingness of tribunals to draw appropriate inferences from primary facts (see, for example, Khanna v Ministry of Defence). This obvious point led to anodyne and somewhat unhelpful dicta about whether there was a "shifting evidential burden" placed on the alleged discriminator to rebut a prima facie case established by the complainant (see, amongst other cases, Chattopadhyay v Headmaster of Holloway School).

Most recently, in the House of Lords' judgment in Zafar (see p.9 above), Lord Browne-Wilkinson acknowledged that the authorities on the question of drawing inferences "are in a state of some confusion", and said that it was desirable that their Lordships should seek to clarify the law in this area as it currently stands. Claims under the RRA and the SDA, he said, "present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed, they may not even be aware of them."

He consequently strongly endorsed the well-known guidance set out by Lord Justice Neill in King v The Great Britain-China Centre (see the box above). That guidance should be applied in future, said Lord Browne-Wilkinson, whilst certain remarks of his own, most notably in Khanna and Chattopadhyay, to the effect that inferences of discrimination on racial grounds "should" be drawn where there is less favourable treatment, a difference in race and an inadequate explanation by the employer, "put the matter too high, are inconsistent with later Court of Appeal authority and should not be followed".

Legitimate inferences

In King itself, Ms King was an ethnic Chinese, as were four other of the 30 candidates for a post at the Great Britain-China Centre. Eight candidates were called for interview, none of whom was an ethnic Chinese. The majority of the tribunal were satisfied that Ms Kings's paper qualifications fulfilled the requirements set out in the advertisement and job specification, and that she had been treated less favourably than at least two of the candidates called for interview. They were also impressed by the fact that no ethnic Chinese had ever been employed by the centre. In these circumstances, said Neill LJ, the tribunal was clearly entitled to look to the centre for an explanation of the fact that Ms King was not even called for interview. The majority, however, found the explanation unsatisfactory and were also dissatisfied with the reply to the questionnaire. They found, for example, inconsistency in the centre's application of elements in the job specification, and that certain requirements or emphases in the selection procedure had emerged after the submission of applications. The majority therefore concluded that Ms King had made out her case. "This process of reasoning did not involve a reversal of the burden of proof but merely a proper balancing of the factors which could be placed in the scales for and against a finding of unlawful discrimination," Neill LJ concluded.

Similarly, in Noone v North West Thames Regional Health Authority, Lord Justice May concluded that, having regard to the appellant's superior qualifications, experience and publications in comparison with the person appointed to the post, there was sufficient material upon which the industrial tribunal was entitled to reach the conclusion that there had been racial discrimination. The EAT had erred in finding that there was nothing to justify an inference of discrimination on racial grounds. If the discrimination was held to have been based on a personal bias or personal prejudice, it was only a very small step to go on and conclude that the discrimination was racial. In the circumstances, if it were not to be so attributed, it had to be asked to what other cause could one realistically look? The EAT had no basis in law, therefore, for interfering with the tribunal's decision and the appeal was allowed.

And, in Baker v Cornwall County Council, the Court of Appeal warned that discrimination can often result from a wish to preserve an existing pattern of employment in, for example, a particular workshop or department which has worked well and harmoniously in the past rather than from any deliberate wish to exclude the complainant as an individual. An excuse such as "we wanted someone who would fit in" is often a danger signal that the choice was influenced not by the qualifications of the successful candidate but by his or her sex or race.

Special features in race cases

The special features that may inform race discrimination cases were further explored by the Court of Appeal in West Midlands Passenger Transport Executive v Singh. Lord Justice Balcombe pointed out that:

Findings of primary fact crucial

On completion of the evidence, the tribunal will be involved in a fact-finding and balancing exercise. In British Gas plc v Sharma, Mr Justice Wood said that looking at the whole of the evidence - issues of credibility, questions of probability and all the circumstances of the case - a tribunal has to decide whether on the balance of probabilities the applicant has proved the case: carrying out this process, it will need to find primary facts and to draw inferences therefrom. There may well be disputes as to those primary facts which will need to be resolved. Has the applicant proved facts which point to discrimination? How strong is the case with its inferences? What is the defence? What is the explanation? Do we accept it? How do we assess the witnesses? Were they honest or dishonest? Were they mistaken? Were they perfectly straightforward but misguided? Are there facts so strong that the only logical conclusion is that there must have been some subconscious racial discrimination?"

On the facts of Sharma, the EAT held that the tribunal had not erred in drawing the inference that the employer had discriminated against the complainant on racial grounds in her application for promotion. It was entitled to find that an O-level educational qualification was a criterion for the post in question, and that in selecting candidates without that qualification in preference to the complainant (who was educated to MA standard) the employer had departed from its own selection criteria.

The need for clear findings of primary fact from which it is legitimate to draw inferences was underlined by the Court of Appeal in Chapman and others v Simon. If there are no such findings, there can be no inference: what is done can at best be speculation or based on an "intuitive hunch". In the case itself, there were no primary facts mentioned by the majority of the tribunal to justify its inference that "subconsciously or unconsciously" a school headteacher was affected - in allegedly pre-judging a complaint made against the applicant teacher by a colleague - by the fact that the applicant was black. Indeed, such primary facts as the tribunal did find - that the headteacher's conscious attitude to race was impeccable, and that she did not make certain offensive remarks which the applicant alleged she had done - pointed in exactly the opposite direction. There was here no strong evidence such as to justify a finding of unconscious racial discrimination.

Note: We will return to questions of proving direct discrimination, evidence, discovery, and the use of the questionnaire procedure in part 3 and part 4 of this series.

RACIAL GROUNDS

For the purposes of the RRA, s.3(1) provides that, unless the context otherwise requires -

"racial grounds" means any of the following grounds, namely colour, race, nationality, or ethnic or national origins;

"racial group" means a group of persons defined by reference to colour, race, nationality, or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.

The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of the Act (s.3(2)).

General approach

These provisions represent an inclusive and malleable definition in which the individual racial grounds may overlap, but nevertheless represent distinct concepts and ideas.

For example, a racial ground or group defined by reference to "colour" may include a number of distinctive groups defined by ethnic or national origins (see London Borough of Lambeth v CRE). And "nationality" includes "citizenship" whether acquired at birth or subsequently (s.78 of the RRA), and is essentially a juridical or legal concept often related to, but distinct from, the concept of "national origins". The latter has thus been defined as "a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as a 'nation' - whether or not they also constitute a sovereign state" (London Borough of Ealing v Race Relations Board).

Two or more groups

In Tejani v Superintendent Registrar for the District of Peterborough, the Court of Appeal purported to apply the definition of national origins laid down in London Borough of Ealing and concluded that Mr Tejani was not directly discriminated against on grounds of his nationality, racial or national origins because the registrar had asked him for his passport (to prove compliance with certain residence conditions relating to marriage) simply on the ground that he was born abroad - he was a British national - "without any particular reference to any particular place or country of origin".

With respect, this decision would appear to be flawed. A particular racial group, for the purposes of indirect discrimination at least, can comprise two or more distinct racial groups (see s.3(2) and Orphanos v Queen Mary College). It would seem unlikely that similar flexibility is not intended in respect of the analogous racial grounds referred to in s.1(1)(a) and defined in s.3(1). Indeed, whatever our other criticisms of the Dhatt decision, the Court of Appeal appeared to encounter no problem in dealing with submissions about purported distinctions between groups comprising, respectively, British and EEC nationals and "all other applicants" for work.

Ethnic origins

A group defined by reference to "ethnic origins" must "possess some of the characteristics of a race, namely group descent, a group of geographical origin and a group history" (per Lord Templeman in Mandla v Lee).

But, although the term conveys "a racial flavour", Lord Fraser asserted in the same case that it cannot have been used "in a strictly racial or biological sense ... The practical difficulties of proof would be prohibitive, and Parliament must have used the word in some more popular sense." It is, he said, used nowadays "in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin". It is in this context that his Lordship laid down the guidance which we set out in the box above.

Applying that approach to the facts of Mandla itself, for example, it was not suggested that "Sikhs" were a group defined by reference to race, colour, nationality or national origins. In none of these respects, said Lord Fraser, are they distinguishable from many other groups, especially those living, like most Sikhs, in the Punjab. They are nevertheless a racial group by reference to ethnic origins. This was true whether one was considering the position before partition in 1947, when Sikhs lived mainly in that part of the Punjab which is now Pakistan, or after 1947, since when most of them have moved to India. They are a distinctive and self-conscious community, with a history going back to the 15th century (although it was originally a religious community, it is no longer purely religious in character). They have a written language which a small proportion of Sikhs can read, but which can be read by a much larger proportion of Sikhs than Hindus, and were at one time politically supreme in the Punjab.

Muslims, on the other hand, are not a distinct racial group under the RRA, defined by ethnicity or otherwise. Applying the Mandla guidelines, the industrial tribunal in Tariq v Young held that Muslims are identified by their religion and not by their race or nationality or as being an ethnic group. It is similar in this respect to a person being of the Christian faith. They are found all over the world in the same way as Muslims are found. The position of the latter was to be distinguished from that of Sikhs. In Mandla, it had been found that that group are found in a particular part of India and form an ethnic group being bound by culture as well as religion and similar to Jewish persons. Reference to a Muslim, in contrast, is primarily to refer to their religion which does not fall within the Act.

This view was confirmed by a tribunal in JH Walker Ltd v Hussein. It dismissed the applicant's direct discrimination complaint, holding that the "true nature of Islam" does not fall within the RRA, since the Act does not mention religion. It was not possible to treat Muslims as both a religious grouping and as an ethnic grouping. But, in contrast, the tribunal upheld an indirect discrimination complaint based on the employer's introduction of a rule addressed to all workers prohibiting them from taking holidays during May-June of each year, and the disciplining of a number of Muslims who were absent on the Muslim religious day of Eid, which fell during the prohibited period. There were two distinct racial groups in the relevant pool for comparison - the group (almost half of the workforce) originating from the Indian sub-continent and the remaining workforce, consisting chiefly of Europeans. And almost all of the former group were Muslim. The number of people from that Asian group who could comply with the direction to work on Eid was considerably smaller than the proportion of Europeans who could so comply.

Other examples

As already indicated, there seems little doubt that Jewish persons are a racial group within s.3(1): "'Jewish' could mean that one was a member of a race or a particular ethnic origin as well as being a member of a particular religious faith," (Seide v Gillette Industries Ltd and Wetstein v Misprestige Management Services Ltd). Similarly, following the Mandla guidelines, "gypsies" - in the sense of "a wandering race (by themselves called 'Romany') of Hindu origin" - are accepted as a racial group defined by ethnic origin (Commission for Racial Equality v Dutton). There remains a discernible group of gypsies "with a long-shared history of which the group is conscious as distinguishing it from other groups and the memory of which it keeps alive," said Lord Justice Taylor.

But the same is not true, for example, of "Rastafarians" (Dawkins v Department of the Environment); "Pushtuns" from Pakistan (Khayum v Pakistan Muslim Centre); and "Mirpuries" from Kashmir (Bhatti v Sandwell Muslims Organisations and others).

English, Scottish, and, probably, Welsh and Irish (comprising the North and the South) persons are distinct racial groups based on national (but, it seems, not ethnic) origins (see Northern Joint Police Board v Power and Boyce and others v British Airways plc).

¹ 25.3.98 COM(1998) 183 final.

² SI 1997/869 (NI 6).

³ 1983.

Race discrimination 1: main points to note

Drawing inferences - the King v Great Britain-China Centre guidance

"Ethnic groups" - the Mandla guidelines

In Mandla v Lee, Lord Fraser said: "For a group to constitute an ethnic group in the sense of the Act of 1976, it must ... regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these:

(1)a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;

(2)a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.

In addition to these two essential characteristics the following characteristics are, in my opinion, relevant:

(3)either a common geographical origin, or descent from a number of common ancestors;

(4)a common language, not necessarily peculiar to the group;

(5)a common literature peculiar to the group;

(6)a common religion different from that of neighbouring groups or from the general community surrounding it;

(7)being a minority or being an oppressed or dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.

A group defined by reference to enough of those characteristics would be capable of including converts - for example, persons who marry into the group - and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he [or she] is, for the purposes of the Act, a member ... In my opinion, it is possible for a person to fall into a particular racial group either by birth or adherence and it makes no difference ... by which route he [or she] finds his [or her] way into the group."

CASE LIST

Alexandra Healthcare NHS Trust and another v Effa 21.4.98 EAT 565/97

Baker v Cornwall County Council [1990] IRLR 194

Barclays Bank plc v Kapur (No.2) [1995] IRLR 87

Berry v Bethem & Maudsley NHS Trust 21.11.96 EAT 478/95

Bhatti v Sandwell Muslims Organisations and others 29.7.93 COIT 48589/92

Bossa v Nordstress Ltd and another [1998] IRLR 284

Boyce and others v British Airways plc 1.9.97 EAT 385/97

British Gas plc v Sharma [1991] IRLR 101

Burrett v West Birmingham Health Authority [1994] IRLR 7

Chapman and others v Simon [1994] IRLR 124

Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487

Commission for Racial Equality v Dutton [1989] IRLR 8

Dawkins v Department of the Environment [1993] IRLR 284

Dhatt v McDonalds Hamburgers Ltd [1991] IRLR 130

Din v Carrington Viyella Ltd [1982] IRLR 281

Hampson v Department of Education and Science [1989] IRLR 69

Instron Ltd v Denny 22.6.89 EAT 268/88

Ismail v Eastern Ravens Trust Ltd 9.4.97 EAT 680/95

Jeremiah v Ministry of Defence [1979] IRLR 436

JH Walker Ltd v Hussein [1996] IRLR 11

Jones v Tower Boot Co Ltd [1997] IRLR 168

Khanna v Ministry of Defence [1981] IRLR 331

Khayum v Pakistan Muslim Centre 24.1.94 COIT 40306/93

King v The Great Britain-China Centre [1991] IRLR 513

London Borough of Ealing v Race Relations Board [1972] AC 342

London Borough of Lambeth v CRE [1990] IRLR 231

Mandla v Lee [1983] IRLR 209

Martins v Marks & Spencer plc [1998] IRLR 326

Nagarajan v Agnew [1994] IRLR 61

Noone v North West Thames Regional Health Authority [1988] IRLR 195

Northern Joint Police Board v Power [1997] IRLR 610

O'Neill v Governors of St Thomas More RCVA Upper School and another [1996] IRLR 372

Orphanos v Queen Mary College [1985] IRLR 349

Owen & Briggs v James [1982] IRLR 502

Pel Ltd v Modgill [1980] IRLR 142

Qureshi v London Borough of Newham [1991] IRLR 264

R v Birmingham City Council ex parte EOC [1989] IRLR 173

R v CRE ex parte Westminster City Council [1985] IRLR 426

Savjani v Inland Revenue Commissioners [1981]1 QB 458

Seide v Gillette Industries Ltd [1980] IRLR 427

Showboat Entertainment Centre Ltd v Owens [1984] IRLR 7

Simon v Brimham Associates [1987] IRLR 307

Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440

Tariq v Young 19.4.89 COIT 24773/88

Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502

Weathersfield Ltd t/a Van & Truck Rentals v Sargent [1998] IRLR 14

West Midlands Passenger Transport Executive v Singh [1988] IRLR 186

Wetstein v Misprestige Management Services Ltd 19.3.93 EAT 523/91

Zafar v Glasgow City Council [1998] IRLR 36