Race discrimination 3: discrimination in employment
The third Guidance Note in our series examines the provisions of the Race Relations Act on discrimination in the employment field.
"Since the getting and losing of work, and the daily functioning of the workplace, are prime areas for potential discrimination on grounds of race or sex, it is not surprising that both Acts contain specific provisions to govern the field of employment. Those provisions are themselves wide-ranging, as is evidenced, for example, by the inclusion of contract workers without employee status within the scheme of the legislation. There is no indication in the Act that by dealing specifically with the employment field Parliament intended in any way to limit the general thrust of the legislation."
(per Lord Justice Waite in Jones v Tower Boot Co Ltd)
Parts one and two of this series analysed the forms of discrimination that the Race Relations Act 1976 (the RRA) is designed to eliminate. But the mere existence of direct or indirect discrimination or victimisation as defined in Part I of the Act does not of itself establish the commission of an unlawful act. Indeed, the question of whether such discrimination exists will only, strictly speaking, arise if an act has been identified which is rendered potentially unlawful by subsequent parts of the legislation (see Weathersfield Ltd t/a Van & Truck Rentals v Sargent).
The third part in our series therefore considers the provisions on race discrimination in the employment field contained in Part II of the RRA. Most important amongst these, s.4 prohibits discrimination against prospective and existing employees and many self-employed persons, in relation to an extensive range of pre-employment and employment matters. We focus initially on the extended concept of "employment" utilised in the RRA, and move on to consider: the specific acts outlawed, including racial harassment; certain provisions modifying the Act's application in the employment sphere (in particular, those relating to genuine occupational qualifications); and the broad concept of statutory employer responsibility which it contains. Once again, we refer where relevant to the Commission for Racial Equality's Code of Practice for the elimination of racial discrimination and the promotion of equal opportunity in employment1.
"EMPLOYMENT" DEFINED
The Act's primary employment provisions prohibit discrimination against another by a person "in relation to employment by him [or her] at an establishment in Great Britain" (s.4(1) and (2), below). Employment for these purposes is defined in s.78(1), which provides:
"Employment" means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly.
This definition is identical in all material respects to that contained in s.1(6) of the Equal Pay Act 1970 (the EqPA), s.82(1) of the Sex Discrimination Act 1975 (the SDA) and s.57 of the Fair Employment (Northern Ireland) Act 1976 (the FE(NI)A), and this is reflected in the commonly applicable case law discussed below.
There are no minimum length of continuous service requirements or maximum age limits precluding complaints under the RRA. A number of exclusions, exceptions and special cases in respect of the application of s.4 are dealt with in the box. Part II of the Act also prohibits employment-related discrimination by a number of bodies or persons other than employers. Those provisions are outlined in the box.
Self-employed covered
The correct meaning of the term "employment" in s.78, as a matter of statutory interpretation, is a "pure point of law" (Mirror Group Newspapers Ltd v Gunning), whilst its application to the facts of any given case will essentially be a question of fact for employment tribunals. It is clear that the reference to contracts for the personal execution of work or labour is intended to enlarge upon the ordinary definition or connotation of "employment", so as to include persons outside the traditional employer-employee (or master-servant) relationship (Quinnen v Hovells). Many persons who are, or appear on the face of it to be, self-employed independent contractors are consequently protected by the RRA (see most recently Loughran and Kelly v Northern Ireland Housing Executive, see below and our casenote).
In Quinnen, for example, the "employer" was himself a self-employed salesman of "fancy goods" who displayed, demonstrated and sold his goods, including pens engraved on-site according to the wishes of individual buyers, from "pitches" in various department stores. For much of the year he operated on his own, but at peak trading periods, such as the months leading up to Christmas, he contracted for the services of temporary assistants to run some of his pitches for him on a commission basis. Overturning the decision of an employment tribunal, the EAT held (in a case on the EqPA and SDA provisions) that such temporary assistants (including one engaged to carry out the engraving of pens at one of the stores) - who were all treated as self-employed persons - were employed under contracts personally to execute work or labour. Mr Justice Waite warned "that those who engage, even cursorily, the talents, skill or labour of the self-employed are wise to ensure that the terms are equal as between men and women and do not discriminate between them". The same may be said with respect to discrimination prohibited by the RRA.
Personal obligation
But the deliberate insertion by the legislature of the word "personally" into the s.78 definition means that "employment" for these purposes "does not arise merely where there is a stipulation that work or labour shall be done" (Tanna v Post Office). There must be an obligation on the person entering into a contract personally to do work or labour. It may well be that some of what he or she undertakes to do may be delegated. But it is essential that the person making the contract undertakes to do, at any rate, some of the work or labour.
In Tanna, the EAT under Mr Justice Slynn upheld an employment tribunal's conclusion that when a person was appointed as a sub-postmaster by the Post Office he undertook that certain things would be done. He had to provide premises and ensure that Post Office services were provided to the members of the public either by himself or by staff chosen and disciplined by him. There was, however, no term in such an appointment, express or implied, that the postmaster personally had to perform any of the relevant duties himself.
By contrast, in Mankoo v British School of Motoring Ltd, the EAT concluded that a self-employed driving instructor operating under a franchise agreement with the British School of Motoring (the BSM) was employed by the BSM for the purposes of the RRA. Although there was no express obligation in such an agreement requiring the franchisee to undertake any particular work, it was clear that the BSM had the power to nominate the franchisee to undertake certain instruction. Mr Justice Browne-Wilkinson said that it was "a necessary implied term" in the agreement that, when nominated, the franchisee would do the work unless unable to do so. The franchisee would otherwise be breaching other express obligations to use his or her best endeavours to assist in the development of BSM's business. Further, tribunals had to look at the substance and not just the form of contractual arrangements. Looking at the present arrangement in its context, "it would be flying in the face of reality to suggest that the franchisee, who has put out money to be trained, who has appointed BSM his sole agent and who is under an obligation to pay (admittedly a small sum) for the services provided by BSM whether or not he does anything, is not, in substance, entering into a contract personally to execute work or labour under the franchise agreement for the joint benefit of both parties," the EAT concluded.
"Dominant purpose" test
It is not, however, sufficient for the personal execution of work or labour by the contractor to form only a subsidiary or incidental part or purpose of the contract. In the Court of Appeal's decision in Mirror Group Newspapers Ltd v Gunning (another SDA case), Lord Justice Oliver expressed the requirement as follows: "In my judgment, what is contemplated by the legislature in the extended definition is a contract the dominant purpose of which is the execution of personal work or labour." The word "any" in s.78 does not therefore refer to the quantity of work or labour (however limited in amount) required under the contract, but to the myriad "kinds" or types of work or labour which may be covered by the provision.
On the facts of Gunning, Oliver LJ concluded that the dominant purpose of a contract between the newspaper group and an independent contractor with a franchise to purchase and distribute its goods "was simply the regular and efficient distribution of newspapers". Even if this was wrong, he was further persuaded that there was no material upon which the tribunal "could properly conclude that there was any term of the contract between the newspaper group and [the contractor] which obliged the latter personally to engage in the operation of the distributorship agreement, although no doubt the expectation was that he would do so. It may even be that if he had not attended personally, the newspaper group might have queried the efficiency of the operation and terminated the agreement when they could lawfully do so. But I can find nothing which would justify the supposition that there was any contractual obligation upon him to do anything (other than pay for supplies) so that his absence from the scene of operations could have been categorised as a breach of contract."
Lord Justice Balcombe agreed that the statutory definition "contemplates a contract whose dominant purpose is that the party contracting to provide services under the contract performs personally the work or labour which forms the subject matter of the contract." A single obligation to provide personal services in a contract is not of itself sufficient - "one has to look at the contract as a whole to see the extent to which that obligation colours the contract ... In my judgment, one has to look at the agreement as a whole, and provided that there is some obligation by one contracting party personally to execute any work or labour, one then has to decide whether that is the dominant purpose of the contract, or whether [put another way] the contract is properly to be regarded in essence as a contract for the personal execution of work or labour ... ."
Who may provide services?
The Gunning approach thus underlines the fact that in principle the protection of the RRA extends in appropriate circumstances to contracts for the provision of work or services by professional persons or other self-employed independent contractors, and this is confirmed by the House of Lords' recent decision in Loughran and Kelly (a case under the analogous FE(NI)A provision). But, as Lord Slynn there observed, Gunning did not answer directly the question as to who or what type of entity may personally or mainly perform the work or labour under such contracts. It has hitherto largely been assumed that the RRA and similarly-worded discrimination statutes apply to protect only individual natural persons.
In respect of Mr Loughran, for example, Lords Slynn and Steyn agreed that, whatever he called himself, he "was the individual seeking employment in the sense of someone offering to enter into a 'contract personally to execute any work or labour'", the dominant purpose of which was that he would do the essential part of the work. Lord Griffiths concurred. In his view, the dominant purpose of a contract appointing a firm of solicitors to a Housing Executive panel was "to secure the services of a particular solicitor personally to defend their cases". Mr Loughran would, as the sole solicitor in his practice, have been the contracting party, and he would have been required personally to execute the solicitor's work under such a contract. The fact that he practised under an unincorporated firm name was irrelevant.
May include partnerships
Thus far the decision in Loughran and Kelly is unexceptionable, since there was an inevitable and absolute legal and factual identity between Mr Loughran and his firm, which was merely a trading name. More difficult is the conclusion of the same three-to-two majority that Ms Kelly, a partner who was the "designated" solicitor in her firm's application to the Housing Executive, also had a valid claim under the FE(NI)A. The main problem here is in discerning the true ratio for this finding from majority opinions containing clearly divergent reasoning.
As we can see from our casenote, Lords Slynn and Steyn proceeded on the basis that the word "personally" in the definition of "employment" can include activity undertaken by a firm of solicitors in the form of a partnership. In so doing, they appeared to rely primarily on the Interpretation Act 1978, which provides that, "unless the contrary intention appears", a "person" includes a body of persons corporate or unincorporate; and they did not think that any such contrary intention was to be deduced from the FEA.
Lord Griffiths, meanwhile, based his analysis squarely on the fact that Ms Kelly, as a partner in her firm, would herself have been a party to any contract with the Housing Executive. But, crucially, he was adamant that the Interpretation Act should not be applied to achieve the result suggested by Lord Slynn (an opinion he shared with Lords Lloyd and Clyde, who were otherwise in the minority).
Implications of Loughran and Kelly
We would respectfully submit that Lord Griffiths's reasoning, in respect of both his contractual analysis of Ms Kelly's position and rejection of the application of the Interpretation Act, is the more persuasive. Indeed, it is unclear whether the application of the Interpretation Act is, strictly speaking, necessary to all of the conclusions reached by Lords Slynn and Steyn. If, as appears to be the case, they regard it as essential or "sufficient" that a partner assumes responsibility for and undertakes the work or labour under a contract for services ostensibly made with his or her firm, there is ultimately little to distinguish their approach from that of Lord Griffiths.
Furthermore, a firm as a legal entity, and more particularly a company or other corporate body (which indisputably has a distinct legal identity from those which comprise or work for it), can only operate through the medium of natural legal persons. In general, if a partnership or company enters a contract to provide services, it can logically only undertake to ensure that those services are actually personally performed by such other real persons (whether they be, for example, agents, partners, employees or others). The parallel with the conclusions on the facts in Tanna and Gunning is clear - almost invariably, the dominant purpose of a contract for services with a firm or company will, properly analysed, be the organisation of resources in order to ensure that the services required are provided or delivered. Only in very specific circumstances, such as those in Loughran and Kelly, will it be possible to identify an individual contracting party who is capable of undertaking - and who is obliged - personally to execute work or labour thereunder. The view that companies will in principle almost certainly be so excluded is supported by certain obiter observations made by Lords Lloyd, Griffiths and Clyde.
Unfortunately, we are left in a position where the potential application of the RRA in circumstances similar to those in Kelly would appear to depend upon fortuitous factors such as the status of the individual within a partnership who undertakes to do work or labour under a contract for services, or the number of partners or legal form of the undertaking involved. For example, whilst an unincorporated sole trader such as Mr Loughran may be employed for these purposes, an individual independent contractor who incorporates and trades as a company (not an uncommon position) will probably be unprotected.
In relation to establishing discrimination, however, it would seem that someone in Ms Kelly's position in an RRA case would in theory be able to rely not only on direct or indirect discrimination based on her own racial characteristics or racial group, but also direct discrimination against her on grounds of the colour, race, nationality, or ethnic or national origins of others. This would arguably include the racial characteristics of her partners or colleagues, or, perhaps, perceptions or stereotypical assumptions about the "nature" of her firm based on racial considerations (for example, that it was a "black" firm which sought primarily to represent ethnic minorities) - see part one of this series.
Miscellaneous cases
For there to be mainstream "employment" within the meaning of ss.4 and 78 of the RRA, there must be an actual or prospective contract between the alleged employer and the employee or contractor. The following atypical situations are worthy of note:
Any other "contract workers" supplied by one employer to carry out work for another ("the principal") under a contract between the employer and the principal are similarly protected under s.7. This provision has been applied to protect employees of concessionaires operating at a department store, where those employees were required to have "store approval" in order to work there. There is no requirement that the supply of workers should be the "dominant purpose" of the contract between the principal and the employer. If the employees supplied do work for the benefit of the principal, and are in certain respects subject to its control or discipline, that is probably sufficient (Harrods Ltd v Remick). The contract workers protected by s.7 are those "employed" by the supplier of labour in the extended sense already discussed (and see O'Shea Construction Ltd v Bassi, where the EAT found that a self-employed owner lorry driver employed by the employer to deliver and unload concrete to the principal's construction site was covered by s.7).
On the other hand, in R v Department of Health ex parte Gandhi, it was accepted that an MPC, in appointing a GP to a vacancy or including him or her on the medical list for a locality, is acting as a qualifying body to which s.12 of the RRA applies. But his or her remedy for alleged discrimination by that body is not by way of complaint to an employment tribunal. Section 54(2) of the Act provides that the right to complain to an employment tribunal "does not apply to a complaint under s.12(1) of an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment". Here, the GP's statutory remedy is by way of appeal to the Secretary of State, who, while not required to determine a race discrimination complaint discretely, is required to consider it in determining the appeal and in doing so must apply the substantive provisions of the RRA and judicial decisions interpreting them. The same analysis applies to the relationship between doctors and the General Medical Council (the GMC), in respect of the latter's exercise of its jurisdiction under the Medical Act 1983 to determine the registration of practitioners qualifying overseas, and the statutory right to review of GMC decisions made thereunder (Khan v General Medical Council).
Illegality not a bar
Interestingly, any contract or prospective contract relied upon in founding a claim under the RRA does not, it seems, have, in and of itself, to be valid and legally enforceable. By analogy with the decision on the SDA in Leighton v Michael and another, cases in which an illegal contract of employment have been held to preclude applicants from complaining of unfair dismissal and claiming redundancy payments under the Employment Rights Act 1996 (the ERA) are distinguishable from claims under the RRA.
For the purposes of claiming unfair dismissal or redundancy payments, the EAT in Leighton said that the applicant makes a claim which is directly founded upon, relies upon and seeks to enforce the contract of employment. In particular, as dismissal is an essential ingredient of those statutory rights, the employee has to refer to the contract of employment, not just to identify himself or herself as an employee, but because the question of whether he or she has been dismissed within the meaning of the statute also rests on the contract.
Protection under the RRA, in contrast, involves a reference to the contract to determine whether the person is "employed" within the meaning of the statute, but the claim of race discrimination does not involve enforcing, relying on or founding a claim on the contract of employment. The right not to be discriminated against on the ground of race is conferred by statute on persons who are employed, and there is nothing in the statute, or in public policy, to disqualify a person, who is in fact employed, from protection by reason of illegality in the contract of employment if the claim is not founded upon, or seeking to enforce, contractual obligations.
THE ACTIONS PROHIBITED
Discrimination against job applicants and existing employees is prohibited by s.4 of the RRA, which provides:
(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -
(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or
(b) in the terms on which he offers him that employment; or
(c) by refusing or deliberately omitting to offer him that employment.
(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) in the terms of employment which he affords him; or
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment.
Lacunae in protection?
In Adekeye v Post Office (No.2), the Court of Appeal confirmed that the words "in the case of a person employed by him" under s.4(2) must be given their ordinary and natural meaning in their context, and can only mean, "in the case of a person who is employed by him" [our emphasis]. That provision accordingly applies only to present and not past employees, and protects only those whose employment continues at the time of the act of discrimination. It followed that an employee who had been summarily dismissed was not protected by s.4(2) in respect of alleged discrimination that occurred during her subsequent internal appeal against dismissal. Her dismissal had been unconditional and took immediate effect, and the internal appeal was not part of the dismissal process. She was consequently not an "employee" within the meaning of section 4(2) at the time of the appeal hearing.
Furthermore, said Lord Justice Peter Gibson, an employee seeking reinstatement by an appeal against dismissal is not an applicant for employment for the purposes of section 4(1)(c), so that the employer's dismissal of the applicant's appeal was not a refusal "to offer ... employment". It is, he stated, unrealistic to regard a dismissed employee seeking reinstatement in those circumstances as seeking an offer of employment. In an internal appeal, the former employee is not seeking an offer that can be accepted or refused; he or she is seeking the reversal of a decision to dismiss. This position should, however, be distinguished from a fresh application for employment by an ex-employee (see Nagarajan v Agnew, where the former employee appears mistakenly to have framed his victimisation claim under the detrimental treatment provision in s.4(2)(c), rather than s.4(1)(c) - see part two of this series).
In the course of his judgment in Adekeye, Peter Gibson LJ firmly rejected a submission that the lacunae identified in s.4 might be remedied by reference to the EC Equal Treatment Directive (No.76/207). This involved saying that, "although the [RRA], on its proper construction as a matter of English law, does not protect a person whose employment has ceased, and although the Equal Treatment Directive has no application whatsoever to the [RRA], nevertheless, to achieve consistency with the [SDA] to which the Directive is relevant, the [RRA] should be given a meaning which otherwise it cannot bear. I know of no authority that compels so extraordinary a result." It thus seems that the outcome of the reference to the European Court of Justice in Coote v Granada Hospitality Ltd will be irrelevant for present purposes, even if the Court there agrees with the Advocate-General's general view that it would be "inappropriate and wholly contrary to the spirit of the [Equal Treatment] Directive" for ex-employees to be deprived of protection.
Arrangements
Arrangements made for the purpose of determining who should be offered employment are caught by s.4(1)(a) insofar as they actually operate so as to discriminate directly or indirectly on racial grounds, even if they were not themselves made with the purpose of so discriminating. Articulating this approach in Brennan v Dewhurst Ltd, the EAT held that the way in which a shop manager conducted an interview arranged by his superior operated so as to discriminate against a job applicant, and was consequently unlawful under s.4(1)(a). There does not, therefore, generally need to be a discriminatory motive or purpose on the part of the person actually making the arrangements, nor need the arrangements be inherently discriminatory in effect.
The one caveat to this statement relates to discrimination by way of victimisation in the making of arrangements. In Nagarajan v London Regional Transport, Lord Justice Peter Gibson - in the Court of Appeal - agreed with a submission that "unless it could be shown that the person who discriminated by victimisation within s.2(1) was also the maker of the arrangements within s.4(1)(a) there could be no liability". This was, he said, the inevitable consequence of the need under the victimisation provisions to demonstrate causation and a conscious motivation on the part of the alleged discriminator (see part two of this series). While Peter Gibson LJ was "uncomfortably aware" that this construction narrows the scope of s.4(1)(a), he nevertheless observed: "An employer who takes care that the person who might be liable to a victimisation complaint is not the person who makes the arrangements may never become liable under s.4(1)(a)."
Advertisements
Job advertisements may be part of the "arrangements" made by an employer for the filling of the posts, and may accordingly be relied upon in proceedings by unsuccessful job applicants.
But merely placing an allegedly discriminatory advertisement is not in itself an act of discrimination by an employer within the meaning of Part II of the Act. Publishing or causing an advertisement to be published which indicates, or might reasonably be understood as indicating, "an intention" by a person to do an act of discrimination is made unlawful by s.29(1) in Part IV of the Act (note that this prohibition does not apply to an advertisement which indicates that persons of any class defined otherwise than by reference to colour, race or ethnic or national origins are required for employment outside Great Britain). But an intention to do an act of discrimination is to be contrasted with an act of discrimination itself, and only the CRE can bring proceedings in respect of a breach of s.29. Prospective employees who are deterred from ever applying for a job because of the contents of an advertisement are therefore left without an individual remedy (see Cardiff Women's Aid v Hartup).
Note: We will look more closely at 3.29, together with other unlawful acts which are in themselves only actionable by the CRE (instructions to discriminate (s.30) and pressure to discriminate (s.31)), in the final part of this series.
Terms of employment
Section 4(2)(a) covers direct and indirect discrimination in relation to all contractual terms and conditions of employment, including pay (see, for example, Sougrin v Haringey Health Authority). In this latter area, it may be useful to bear in mind the general approach to questions of pay discrimination in the sex discrimination field set out in Equal pay 2: unequal pay for equal work. It will obviously be much more difficult for employees to prove discrimination in relation to pay under the RRA, in the absence of supporting legislation explicitly permitting comparisons between similar jobs or work of equal value.
Promotion, transfer and training
A failure to provide adequate training or support appropriate to a job may amount to the application of a requirement or condition that disproportionately affects members of certain racial groups, and thereby constitute discrimination in relation to training under s.4(2)(b).
In Bayoomi v British Railways Board, an employment tribunal held that, in applying a requirement that applicants for the post of telex operator should, within six months and without any formal training, become completely competent in the use of a particular telex machine, and the practice of all the Board's operating procedures, and fully conversant with all the environmental factors, the employer had indirectly discriminated against the employee contrary to s.1(1)(b) of the RRA. There was no doubt that that requirement was applied by the respondents to all other qualified applicants for the post of telex operator and it was conceded that the proportion of persons of the employee's racial group - Arabs born in Aden - who could comply was considerably smaller than the proportion of persons not in his racial group who could comply. And the employer had not shown that the requirement was justifiable. Granted that the respondents were entitled to require proficiency in antiquated machinery, in multiple complex procedures, and in bewildering railway jargon and geography, and assuming that a rigid time limit for obtaining that proficiency could also be imposed, the respondents could not justify the requirement that these skills be obtained without any formal training. The requirement looked much more like a matter of convenience than a requirement that was imposed as a matter of commercial necessity.
On the other hand, the prohibition in s.4(1)(b) of discrimination in relation to access to promotion opportunities does not impose a positive obligation to provide special speech or language training to members of staff who have difficulties in order to prepare them for promotion (Mecca Leisure Group v Chatprachong). Such special provision, if not applied universally, would generally amount to impermissible "positive discrimination" and would entitle all other members of staff to such training.
Permissible positive action
There are, however, certain provisions in the RRA which do permit limited discrimination in respect of access to facilities for training of prospective employees in order to redress ethnic imbalances over the previous 12 months in the GB workforce as a whole, or in certain areas or regions within GB (s.37); and existing employees in order to redress ethnic imbalances in an employer's workforce at a particular establishment over a similar period (s.38). More generally, s.35 permits acts of discrimination done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare, or any ancillary benefits. These carefully circumscribed forms of positive action are set out in more detail in our Guidance Note on "Trainees".
Public services
It should be noted that s.4(2) does not apply to benefits, facilities or services of any description if the employer is concerned with the provision (for payment or not) of such benefits, facilities or services to the public, or to a section of the public comprising the employee in question, unless:
(a)that provision differs in a material respect from the provision of the benefits, facilities or services by the employer to its employees; or
(b)the provision of the benefits, facilities or services to the employee in question is regulated by his or her contract of employment; or
(c)the benefits, facilities or services relate to training (s.4(4)).
A similarly-worded exception applies to benefits, facilities or services provided to the public by the principal of contract workers (s.7(5)).
Dismissal
There is no express definition of "dismissal" in the RRA for the purposes of applying the first limb of s.4(2)(c). This contrasts with the position under the SDA (s.82(1A)), which explicitly covers both constructive dismissal and the expiry and non-renewal of a fixed-term contract.
It nevertheless seems clear that the RRA covers dismissal with or without notice by the employer. And, in Weathersfield Ltd t/a Van & Truck Rentals v Sargent, the EAT recently confirmed that dismissal under s.4(2)(c) also covers the imposition of a condition by an employer in repudiatory breach of contract, which an employee treats as constructive dismissal by resigning. More problematic is the position in relation to fixed-term contracts. It is arguable that expiry and non-renewal could amount to some "other detriment" within the meaning of s.4(2)(c). But the employee whose contract expires might, strictly speaking, be regarded as an ex-employee and therefore not protected in respect of non-renewal (see Adekeye, above). And Nagarajan v Agnew confirms that s.4(2)(c) applies only to detriment occurring during the subsistence of employment.
If, however, a dismissal is established, a claim under the RRA may be of more utility than an unfair dismissal complaint under the provisions of the Employment Rights Act 1996. In particular, there will be no need to demonstrate a qualifying period of employment, and there are no maximum age limits. Similarly, except in the case of unintentional indirect discrimination, there is no limit on compensation under the RRA (see part four of this series).
Other detriment
The second limb of s.4(2)(c), prohibiting discrimination by "subjecting [an employee] to any other detriment", is a sweeping-up provision that is to be broadly construed and catches many acts and omissions otherwise falling outside s.4(2). Subjecting to a detriment simply means the employer "putting [an employee] under a disadvantage" (see Jeremiah v Ministry of Defence). In essence, a detriment exists if a reasonable employee would or might take the view that, as a results of the act[s] complained of, he or she has thereby been disadvantaged in the circumstances in which he or she thereafter has to work (see De Souza v Automobile Association).
Examples of detrimental treatment include requiring a person to work in less attractive conditions than others (Jeremiah), or to do less congenial, less interesting, less responsible and/or less varied work (see Kirby v Manpower Services Commission); and issuing instructions to security guards at the entrance to the employer's premises to stop and search all black employees (BL Cars Ltd v Brown).
Racial harassment
Perhaps most crucially, the term detriment also covers racial abuse, insults and/or harassment. If discrimination of this type is such that the putative reasonable employee could justifiably complain about his or her working conditions or environment, then whether or not the treatment is so bad as to amount, for example, to constructive dismissal or to lead to enforced transfer, or even if the employee is prepared to work on and put up with the harassment, it will fall within s.4(2)(c).
But racial insults or abuse will not in themselves amount to a detriment unless the recipient or target is intended to overhear it, or the perpetrator knew or ought reasonably to have anticipated that the victim would overhear it or would become aware of it in some other way (for example, that a third person would pass the insult on - see De Souza). These same requirements apply in determining whether the recipient of abuse or insults has been "treated" less favourably on racial grounds under s.1(1)(a).
Where the treatment under consideration is "race specific", however, there is normally no need for the employee to show that a comparable person of another race in similar circumstances would have been treated differently (the general requirement to this effect is contained in s.3(4) of the Act - see part one of this series). This is because such conduct will be inherently "race-based" and is bound to be less favourable (see the decisions under the SDA in British Telecom plc v Williams; Smith v Gardner Merchant Ltd - note that the latter suggests that a comparison under s.3(4) will be necessary where harassment or bullying takes a more generalised form, but is nevertheless alleged to be on the grounds of race).
Racial harassment may manifest itself in myriad ways, ranging from physical assault to the use of racially specific, abusive, demeaning or derogatory terms or language (either orally or in writing), including terms or language that reinforce racial stereotypes, and the display of such material in or around the workplace. And it may take the form of isolated incidents, or involve a course of conduct over a period of time. It will be largely irrelevant that the perpetrator of harassment or abuse adduces evidence that he or she would not indulge in racist abuse of members of racial groups other than that of the recipient in question (see Robson v Commissioners of Inland Revenue).
Meaning of "subjecting"
As we discuss below, employers are statutorily responsible for a very wide range of their employees' acts and omissions, including acts of racial abuse and harassment. It does not matter whether the perpetrator is of managerial status or not (De Souza). Employer liability is further extended by virtue of the approach taken to the meaning of the word "subjecting" in s.4(2)(c) by the EAT in Burton and Rhule v De Vere Hotels. Employers now have a qualified duty not to "subject" employees to racist abuse by third parties, including members of the public.
In Burton, the EAT accepted that, in practice, where an employer is shown to have actual knowledge that racial harassment of an employee is taking place, or deliberately or recklessly closes its eyes to the fact that it is taking place, if it does not act reasonably to prevent it, it will readily be found to have subjected its employee to the detriment of racial harassment. The EAT did not, however, "think that foresight and culpability are the means by which the employer's duty is to be defined. The duty is: not to subject the employee to racial harassment." That test is best understood by consideration of the true meaning of the word "subjecting", which does not connote "action or decision"; rather, it connotes "control". Mrs Justice Smith said: "A person 'subjects' another to something if he causes or allows that thing to happen in circumstances where he can control whether it happens or not. An employer subjects an employee to the detriment of racial harassment if he causes or permits the racial harassment to occur in circumstances in which he can control whether it happens or not."
It is not necessary or appropriate to establish any particular degree of foresight on the part of the employer. Indeed, the EAT thought that it was "undesirable that concepts of the law of negligence should be imported into the statutory torts of racial and sexual discrimination. However, we can see that on occasions what the employer knew or foresaw might be relevant to what control the employer could exercise. Lack of possible foresight and the unexpected nature of an event might be relevant to the question of whether the event was under the employer's control. But foresight of the events or the lack of it cannot be determinative of whether the events were under the employer's control."
Employers might foresee that racial harassment is a real possibility and yet be able to do very little if anything to prevent it from happening or protect their employees from it. For example, the EAT continued, the employer of a bus or train conductor may recognise that the employee will face a real risk of racial harassment at times. Yet the prevention of such an event will be largely beyond the control of the employer. It will merely be able to make its attitude to such behaviour known to the public and to offer its employees appropriate support if harassment occurs. On the other hand, if the harassment occurs even quite unexpectedly, but in circumstances over which the employer has control, a tribunal may well find that it has subjected its employee to it.
The EAT concluded that the question of whether an employer has subjected its employee to racial harassment, where a third party is primarily responsible for the harassment, should be decided by the tribunal in its capacity as an industrial jury: "The tribunal should ask themselves whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it. If such is their finding, then the employer has subjected the employee to the harassment."
Applying these principles to the facts of Burton - where two black employees working at a function held at their employer's hotel were racially abused by the third-party after-dinner speaker at the function (Mr Bernard Manning) and some other guests - the EAT noted that the hotel manager on duty on the night in question, Mr Pemberton, told the employment tribunal that he would never allow young female staff to go into a function where he knew a performer might tell sexually explicit jokes. This was, in the EAT's view, clearly a description of what the manager "saw as good employment practice. The tribunal said that he ought to have warned his assistant managers to keep a look out for Mr Manning and withdraw the young waitresses if things became unpleasant. He did not do so because he did not give the matter a thought. He should have done. Events within the banqueting hall were under the control of Mr Pemberton's assistants. If they had been properly instructed by him, these two young women would not have suffered any harassment. They might possibly have heard a few offensive words before they were withdrawn, but that would have been all." On this occasion, the employer had "subjected" the employees to the racial harassment that they received from Mr Manning and the guests, the EAT held.
EMPLOYER RESPONSIBILITY
General employer responsibility for acts of unlawful race discrimination by its employees is governed by s.32 of the Act, which provides:
(1)Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval ...
... (3)In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.
Common law test inapplicable
It is now clear that the s.32(2) definition of responsibility is extremely wide, and that the phrase "in the course of employment" is not to be interpreted or limited by reference to common law concepts of vicarious liability in the tort of negligence.
In Jones v Tower Boot Co Ltd, the Court of Appeal confirmed that employers may therefore be responsible for unauthorised wrongful acts of their employees, whether or not those acts are so connected with what the employee is employed to do as to be a mode of doing it (the common law test). Under s.32(2), all actions by a person in the course of employment are attributed to the employer whether or not they are done with the employer's knowledge or approval. Authority, whether express or implied, is therefore largely irrelevant, as is the mode or manner in which employees carry out their employment.
If the statutory concept of responsibility was limited by reference to common law principles, said Lord Justice Waite, it would be "an inevitable result ... that the more heinous the act of discrimination, the less likely it will be that the employer would be liable". And this would cut across "the whole legislative scheme and underlying policy of s.32 (and its counterpart in [the SDA]), which is to deter racial and sexual harassment in the workplace through a widening of the net of responsibility beyond the guilty employees themselves, by making all employers additionally liable for such harassment, and then supplying them with the reasonable-steps defence under s.32(3) which will exonerate the conscientious employer who has used his best endeavours to prevent such harassment, and will encourage all employers who have not yet undertaken such endeavours to take the steps necessary to make the same defence available in their own workplace."
It would, said Waite LJ, have been particularly wrong to allow racial harassment on the scale that was suffered by the employee in Jones at the hands of his workmates - which involved a sustained campaign of physical and verbal abuse that was wounding both emotionally and physically - to slip through the net of employer responsibility by applying to it a common law principle evolved in another area of the law to deal with vicarious responsibility for wrongdoing of a wholly different kind. To do so would seriously undermine the statutory scheme of the discrimination Acts and flout the purposes that they were passed to achieve.
Limits of responsibility?
Waite LJ concluded that "tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words 'in the course of his employment' in the sense in which every layman would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstance which is liable to occur in particular instances - within or without the workplace, in or out of uniform, in or out of rest-breaks - all laymen would necessarily agree as to the result... The application of the phrase will be a question of fact for each [employment] tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort."
The likely limits of statutory employer responsibility under s.32(2) are usefully illustrated by further observations made by Waite LJ in Waters v Commissioner of Police of the Metropolis. In relation to the alleged sexual harassment of the complainant by a work colleague in her accommodation on employer property, he noted that both the alleged perpetrator and the victim "were off duty at the time of the alleged offence. He lived elsewhere, and was a visitor to her room ... at a time and in circumstances which placed him and her in no different position from that which would have applied had they been social acquaintances only, with no working connection at all. In those circumstances, it is inconceivable ... that any tribunal applying the Tower Boot test could find that the alleged assault was committed in the course of [the alleged perpetrator's] employment."
Reasonably practicable steps
Following the logic of the general statement of principle in Tower Boot, the reasonable-steps defence under s.32(3) will operate to exonerate the conscientious employer that has used its "best endeavours" to prevent discrimination and/or harassment by its employees. And employers who have not yet undertaken such endeavours will have to take such steps as are necessary to make the same defence available in their own workplace.
Complying with the required standard will, in most cases, involve - at the very least - the development, adoption, implementation and monitoring of equal opportunities policies in accordance with the CRE Code of Practice, and/or more general compliance with the guidance contained in the Code. Merely recognising the existence of potential problems without more will not be sufficient. Employers should take all reasonably practicable steps to ensure that policies are prominently displayed, disseminated amongst its workforce, and understood by the employees at whom it is aimed and those who are to operate it (with relevant training and guidance being provided).
In relation to harassment in particular, Waite LJ in Tower Boot said that the decision in Burton and Rhule (pp.18-19 above) "provides a useful illustration of the matters to which employers need to be alert if they are to be able to take advantage of the reasonable-steps defence in a harassment context". If a complaint of discrimination or harassment is raised and apparently dealt with (whether in accordance with a harassment or equal opportunities policy or not), the employer may be required to take further steps to satisfy itself that discrimination or harassment has ceased. This cannot simply be assumed from the fact that no further formal complaints have been received, especially if there is clearly an appreciable risk of harassment reoccurring (see, recently, Post Office and another v Chin).
Note: Individual employees continue to be liable for unlawful discriminatory acts for which their employer would be liable under s.32(2), irrespective of whether the employer itself has a defence under s.32(3).
Race discrimination 3: main points to note
GENERAL EXCLUSIONS AND EXCEPTIONS
Employment outside Great Britain
For the purposes of Part II of the RRA, employment is regarded as being at an establishment in Great Britain (including territorial waters of the UK adjacent to GB, and other designated areas covering offshore industries), unless the employee does his or her "work wholly or mainly outside Great Britain" (s.8(1)). Where work is not done at an establishment, it is to be treated as done at the establishment from which it is done or (where it is not done from any establishment) at the establishment with which it has the closest connection. Employment on board a ship registered in GB, or on an aircraft or hovercraft registered in the UK and operated by a person who has their principal place of business, or is ordinarily resident, in GB (except in relation to an aircraft or hovercraft operated in pursuance of a contract with a person whose principal place of business, or ordinary place of residence, is outside the UK), is excluded only in respect of those who work wholly outside GB. In the case of employment on a ship registered in GB (and where work is done at least partly in GB), the ship is deemed to be the establishment. The question of whether or not there has been a refusal to offer employment at an establishment in GB for the purposes of s.4(1)(c) of the Act is to be determined by reference to what was contemplated by the parties to be the intended place of work at the time of the refusal. Accordingly, s.8(1) is to be construed as if the words "the employee does his work wholly or mainly outside Great Britain" read "the employee does or is to do his work wholly or mainly outside Great Britain" (Deria and others v General Council of British Shipping).
Effect of EC law
Following the EAT's decision in Bossa v Ansett Worldwide Aviation Services and another, it seems that the above exclusion may be open to challenge under EC law, at least in respect of discrimination on grounds of "nationality". Article 48 of the Treaty of Rome provides for "the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment". In the case of an Italian national interviewed at Gatwick Airport for a job based wholly in Italy, Mr Justice Morison said that if, as appears to be the case, Article 48 has direct effect, it was the duty of the employment tribunal to override any provision that conflicts with it. The job applicant's complaint under the RRA had, therefore, to be determined by the tribunal in the normal way, and it was possible to give effect to the supremacy of European law simply by disapplying s.8.
Seamen recruited abroad
Section 4 of the RRA does not apply to any act done by an employer in or in connection with employment on any ship in the case of a person who applied or was engaged for that employment outside GB (s.9(1)). A person brought to GB with a view to his entering into an agreement in GB to be employed on any ship is treated as having applied for that employment outside GB. A similar exception applies in respect of contract workers (as defined in s.7) engaged outside GB by the supplier of labour (s.9(2)). These provisions do not, however, operate to exclude employment or work concerned with offshore industries involving exploration or exploitation in designated areas of the continental shelf.
Training in skills to be exercised outside GB
Section 4 does not prohibit acts done by an employer for the benefit of a person not ordinarily resident in GB in, or in connection with, employing him or her at an establishment in GB, where the purpose of that employment is to provide him or her with training in skills which he or she appears to the employer to intend to exercise wholly outside GB (s.6).
Private households
Except in relation to discrimination by way of victimisation (see Race discrimination 1: direct discrimination), s.4 of the Act does not apply to employment "for the purposes of a private household" (s.4(3)). This means employment for the purposes of a private household as such, either wholly or to a substantial degree. If the primary purpose of the employment (whether by an individual or corporate body) is to provide services for another in his or her business or professional capacity the exclusion does not apply (see, for example, Heron Corporation v Commis).
Crown employees
The Act generally binds the Crown, and applies to Crown employees (including the armed forces, but excluding Ministers of the Crown and holders of statutory offices - for example, justices of the peace and CRE commissioners) and House of Commons and House of Lords staff (ss.75, 75A and 75B). But limited discrimination, in the form of rules restricting employment by the Crown and certain "prescribed" public bodies (including the Bank of England, the House of Commons and House of Lords) to persons of particular birth, nationality, descent or residence (but not race or colour), is permitted (s.75(5) and Race Relations (Prescribed Public Bodies)(No.2) Regulations 1994). Members of the armed forces may complain to an employment tribunal under the RRA only after pursuing their complaints through internal service procedures (Armed Forces Act 1996 and related Regulations - see part four of this series).
Statutory authority
Acts of discrimination done under statutory authority are exempt from the provisions of the RRA. This includes acts done in pursuance of any enactment or Order in Council or instrument made under any enactment by a Minister of the Crown, or in order to comply with any condition or requirement imposed by a Minister by virtue of any enactment. It is irrelevant whether the relevant statutory authority predates or post-dates the passing of the RRA (s.41(1)). This exception is to be narrowly construed, and is confined to acts done in necessary performance of an express obligation contained in the applicable instrument, and does not also include acts done in exercise of a power or discretion conferred thereby (see Hampson v Department of Education and Science). In Hampson, for example, the House of Lords held that determining whether a non-UK training course was "comparable" to that provided domestically (as required by certain Regulations) was not an act covered by s.41(1). And, in General Medical Council v Goba, the EAT concluded that an English test set by the GMC was not "reasonably necessary" for it to carry out its statutory duty to satisfy itself as to the language skills of overseas applicants for entry onto the medical register and, accordingly, any discrimination arising from it was not protected by the section. Section 41(2) excuses discrimination on the basis of a person's nationality, place of ordinary residence, or the length of time that he or she has been present or resident in or outside the UK (or an area within the UK), if done in pursuance of arrangements made or approved by a Minister, or in order to comply with any condition imposed by a Minister of the Crown. This provision permits, amongst other things, discrimination by way of immigration controls. Acts done for the purpose of safeguarding national security are exempted from the RRA provisions by s.42.
Sikhs and safety helmets
Any requirement or condition that a Sikh must wear a safety helmet on a construction site is deemed to be indirectly discriminatory and unjustifiable under the RRA, unless at the time the requirement or condition was applied the employer had reasonable grounds for believing that the individual in question "would not wear a turban at all times when on such a site"(see ss.11 and 12 of the Employment Act 1989).
DISCRIMINATION BY OTHER BODIES OR PERSONS
Principals and contract workers
Section 7 of the RRA applies to any work for a person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal itself but by another person, who supplies them under a contract made with the principal. It is unlawful for the principal to discriminate against a contract worker in respect of such work:
(a)in the terms on which it allows him or her to do that work; or
(b)by not allowing him or her to do it or continue to do it; or
(c)in the way it affords him or her access to any benefits, facilities or services or by refusing or deliberately omitting to afford him access to them; or
(d)by subjecting him or her to any other detriment (s.7(2)).
The principal may rely on an adapted GOQ exception (see p.16) to rebut a claim of discrimination by a contract worker. There is an exemption similar to that contained in s.6 (see box) in respect of discrimination for the benefit of contract workers not ordinarily resident in Great Britain in, or in connection with, contract work aimed at providing training in skills intended to be exercised wholly outside Great Britain.
Partnerships
It is unlawful for a firm consisting of six or more partners, in relation to a position as partner in the firm, to discriminate against a person:
(a)in the arrangements they make for the purpose of determining who should be offered that position; or
(b)in the terms on which they offer him or her that position; or
(c)by refusing or deliberately omitting to offer him or her that position; or
(d)in a case where the person already holds that position -
(i)in the way they afford him or her access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him or her access to them; or
(ii)by expelling him or her from that position, or subjecting him or her to any other detriment (s.10(1) of the RRA).
These provisions apply in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm. A modified GOQ exception applies to s.10(1)(a) and (c).
Trade unions
Section 11 of the RRA "applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists."
It is unlawful for trade unions or employers' associations so defined to discriminate against prospective members:
(a)in the terms on which it is prepared to admit him or her to membership; or
(b)by refusing, or deliberately omitting to accept, his or her application for membership.
and against existing members:
(a)in the way it affords him or her access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him or her access to them; or
(b)by depriving him or her of membership, or varying the terms on which he or she is a member; or
(c)by subjecting him or her to any other detriment.
Qualifying bodies
It is unlawful for an authority or body that can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person:
(a)in the terms on which it is prepared to confer on him or her that authorisation or qualification; or
(b)by refusing, or deliberately omitting to grant, his or her application for it; or
(c)by withdrawing it from him or her or varying the terms on which he or she holds it.
"Authorisation or qualification" includes recognition, registration, enrolment, approval and certification; and "confer" includes renew or extend.
These provisions do not apply to discrimination in relation to education by educational establishments and authorities rendered unlawful by ss.17 or 18 of the RRA.
It is unlawful, in the case of an individual seeking or undergoing training that would help fit him or her for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against him or her:
(a)in the terms on which that person affords him or her access to any training course or other facilities concerned with such training; or
(b)by refusing or deliberately omitting to afford him or her such access; or
(c)by terminating his or her training; or
(d)by subjecting him or her to any detriment during the course of his or her training (s.13(1)).
These provisions do not apply to discrimination in relation to employment that is rendered unlawful by section 4(1) or (2); to discrimination in education under ss.17-18; or discrimination that would be rendered unlawful by any of those provisions but for the operation of other provisions of the RRA (for example, discriminatory training permitted under ss.35-38). Section 15 outlaws discrimination by the Secretary of State in the general provision of training facilities or services under section 2 of the Employment and Training Act 1973. This does not apply where s.13 applies or the Secretary of State is acting as an employment agency.
Employment agencies
It is unlawful for an employment agency to discriminate against a person:
(a)in the terms on which the agency offers to provide any of its services; or
(b)by refusing or deliberately omitting to provide any of its services; or
(c)in the way it provides any of its services (s.14).
An "employment agency" is defined in s.78(1) of the RRA as "a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers". The services of an employment agency include guidance on careers and any other services related to employment. It is unlawful for local education authorities to discriminate insofar as they carry out similar functions under s.10 of the Employment and Training Act 1973 .
Barrister and advocates
Section 26A of the RRA prohibits most manifestations of discrimination by barristers or barristers' clerks against prospective and existing pupils and tenants; and it is unlawful for a person to discriminate contrary to the RRA in the giving, withholding or acceptance of instructions to a barrister. These provisions are contained in Part III of the Act and are enforceable by claims in the county court. Similar provisions cover advocates in Scotland (s.26B).
Genuine occupational qualifications
(a)the job involves participation in a dramatic performance or other entertainment in a capacity for which a person of that racial group is required for reasons of authenticity; or
(b)the job involves participation as an artist's or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of that racial group is required for reasons of authenticity; or
(c)the job involves working in a place where food or drink is (for payment or not) provided to and consumed by members of the public or a section of the public in a particular setting for which, in that job, a person of that racial group is required for reasons of authenticity; or
(d)the holder of the job provides persons of that racial group with personal services promoting their welfare, and those services can most effectively be provided by a person of that racial group (s.5(2)).
This applies where only some of the duties of the job fall within paras (a)-(d) as well as where all of them do.
CASE LIST
Adekeye v Post Office (No.2) [1997] IRLR 105
Armitage v Relate and others 8.12.94 case no.43538/94
Bayoomi v British Railways Board [1981] IRLR 431
BL Cars Ltd v Brown [1983] IRLR 193
Bossa v Ansett Worldwide Aviation Services and another [1998] IRLR 284
BP Chemicals Ltd v Gillick and another [1995] IRLR 128
Brennan v J H Dewhurst Ltd [1983] IRLR 357
British Telecommunications plc v Williams [1997] IRLR 668
Burton and Rhule v De Vere Hotels [1996] IRLR 596
Cardiff Women's Aid v Hartup [1994] IRLR 390
Chaudri v Migrant Advisory Service 29.9.97 case no.2201678/96
Coote v Granada Hospitality Ltd 2.4.98 Case C-185/97
Daley v Allied Suppliers Ltd [1983] IRLR 14
De Souza v Automobile Association [1986] IRLR 103
Deria and others v General Council of British Shipping [1986] IRLR 108
Ealing, Hammersmith & Hounslow Family Health Services Authority v Shukla [1993] ICR 710
General Medical Council v Goba [1988] IRLR 425
Hampson v Department of Education and Science [1990] IRLR 302
Harrods Ltd v Remick [1997] IRLR 583
Heron Corporation v Commis [1980] ICR 713
Hugh-Jones v St John's College, Cambridge [1979] ICR 848
Jeremiah v Ministry of Defence [1979] IRLR 436
Jones v Tower Boot Co Ltd [1997] IRLR 168
Khan v General Medical Council [1994] IRLR 646
Kirby v Manpower Services Commission [1980] IRLR 229
Leighton v Michael and another [1996] IRLR 67
London Borough of Lambeth v Commission for Racial Equality [1990] IRLR 231
Loughran and Kelly v Northern Ireland Housing Executive [1998] IRLR 593
Mankoo v British School of Motoring Ltd 4.3.83 EAT 657/82
Mecca Leisure Group v Chatprachong [1993] IRLR 531
Mirror Group Newspapers Ltd v Gunning [1986] IRLR 27
Nagarajan v Agnew [1994] IRLR 61
Nagarajan v London Regional Transport [1998] IRLR 73
O'Shea Construction Ltd v Bassi 21.5.98 EAT 1366/97
Post Office and another v Chin 24.2.98 EAT 162/97
Quinnen v Hovells [1984] IRLR 227
R v Department of Health ex parte Gandhi [1991] IRLR 431
Robson v Commissioners of Inland Revenue [1998] IRLR 186
Roy v Kensington & Chelsea and Westminster Family Practitioner Committee [1992] IRLR 233
Sheikh v Chief Constable of Greater Manchester Police [1989] ICR 373
Smith v Gardner Merchant Ltd [1998] IRLR 510
Sougrin v Haringey Health Authority [1992] IRLR 416
Tanna v Post Office [1981] ICR 374
Tottenham Green Under Fives' Centre v Marshall [1989] IRLR 147; (No.2) [1991] IRLR 162
Wadi v Cornwall and Isles of Scilly Family Practitioner Committee [1985] ICR 492
Waters v Commissioner of Police of the Metropolis [1997] IRLR 589
Weathersfield Ltd t/a Van & Truck Rentals v Sargent [1998] IRLR 14
