Race discrimination 4: enforcement and remedies
Our final Guidance Note examines questions of procedure and remedies in employment-related race discrimination cases.
"Awards [of compensation] should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong."
(per Mrs Justice Smith in Armitage and others v Johnson)
This final feature in our series on the law relating to race discrimination in employment considers the procedure for making individual claims to employment tribunals under the Race Relations Act 1976 (the RRA) and the remedies available thereunder to the successful complainant. We focus, in particular, on the time limits for bringing individual claims before employment tribunals; procedures for obtaining information and evidence of allegedly unlawful discrimination; the rules governing financial compensation; and the limits on tribunal recommendations to employers of actions to obviate or reduce the adverse effects on complainants of unlawful discrimination. The broader educative and enforcement role of the Commission for Racial Equality (the CRE) is outlined in brief, together with its recent proposals for reform of the Act (see the box).
As has been our practice hitherto, we refer, where relevant, to case law on the closely analogous provisions of the Sex Discrimination Act 1975 (the SDA), and guidance contained in the CRE's Code of Practice on the elimination of racial discrimination and the promotion of equal opportunity in employment1.
Presenting complaints
Complaints of unlawful discrimination brought under the employment provisions of Part II of the RRA (see part three of this series in Race discrimination 3: discrimination in employment) must, as a general rule, be presented to an employment tribunal within the three-month time limit discussed below (s.54(1)). This means, preferably, presentation either by post or fax, or by hand, to the tribunal office nearest to the complainant's workplace (or former workplace). A claim or complaint is "presented" only when it is received by the tribunal, whether or not it is dealt with or registered immediately upon receipt. It is not presented merely by the act of sending or posting an application addressed to the tribunal (Hammond v Haigh Castle & Co Ltd).
In common with other tribunal applications, complaint is made by way of a written originating application, which may be contained in a letter or, more usually, form IT1 (these forms may be obtained from jobcentres, employment offices, citizens' advice bureaux and other advice centres). The written application, as presented, must contain sufficient to identify who is making it, against whom it is made, and what sort of complaint it is. There must therefore be something to identify the complaint as potentially being a complaint under the RRA. If, for example, an application says no more than "please take notice I have a complaint" it would be rejected as a nullity (Dodd v British Telecommunications plc). In contrast, on the facts of Dodd, the application drew attention to the fact that the complainant was complaining of discrimination in relation to her rejection for a particular post with the respondent for which she had applied. Although it did not make clear whether the complaint was of sex or race discrimination, or both, the failure to specify the legislation relied on was not, in the EAT's view, at that stage fatal to its efficacy.
Content of applications
An originating application that makes a generalised claim of race discrimination "incorporates any claim for race discrimination", whether it be direct discrimination under s.1(1)(a), indirect discrimination under s.1(1)(b) or discrimination by way of victimisation under s.2, or any other claim that may be made on the grounds of race under the RRA (Quarcoopome v Sock Shop Holdings Ltd).
But the jurisdiction of a tribunal is - unless it exercises its discretion to amend an originating application - confined to dealing with the actual act or acts of alleged discrimination of which complaint is made, and no others. If those acts of discrimination are not proven, it is not for the tribunal (of its own motion) to find another act of discrimination, of which complaint has not been made, to give a remedy in respect of that act (Chapman v Simon). A tribunal is not, therefore, under a duty to investigate other possible complaints, even if they arise out of the same incident, unless it is asked to do so (Dimtsu v Westminster City Council). The acts of discrimination on which a complainant wishes to rely should at least be "foreshadowed" in his or her tribunal application, or contained in further particulars of the complaint which may be given thereunder (Nagarajan v London Regional Transport).
Paradoxically, a tribunal is under no duty, of its own motion, to ensure that every allegation in an originating application is dealt with, unless it has been expressly abandoned, even where the complainant does not put forward evidence to make good the allegation nor argues in support of it (see Mensah v East Hertfordshire NHS Trust). It is, therefore, always good practice for tribunals to clarify with a complainant, especially if he or she is appearing in person or without professional representation, the precise matters raised in the application which are to be pursued (see again Mensah).
Note: Employment tribunals have no jurisdiction to hear complaints of alleged discrimination by qualifying bodies brought under s.12(1) of the RRA (see part three of this series, Race discrimination 3: discrimination in employment) in relation to an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment. This precludes, for example, recourse to tribunals by medical practitioners who are subject to the two-stage procedure of applying to the General Medical Council for full registration under s.25 of the Medical Act 1983 (following a period of limited registration), and appealing from such decisions to a review board. (See Khan v General Medical Council and Race discrimination 3: discrimination in employment.) In contrast, it appears that complaints relating to the initial grant or refusal of limited registration to overseas practitioners under the 1983 Act may be taken to an employment tribunal (see, for example, Rovenska v General Medical Council).
TIME LIMITS
A tribunal cannot generally consider a complaint under s.54(1) of the RRA unless it is presented to the tribunal "before the end of the period of three months beginning when the act complained of was done" (s.68(1)). It may, however, consider any such complaint, claim or application which is out of time "if, in all the circumstances of the case, it considers that it is just and equitable to do so" (s.68(6)).
For the purposes of these provisions, s.68(7) provides that:
(a)when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and
(b)any act extending over a period shall be treated as done at the end of that period; and
(c)a deliberate omission shall be treated as done when the person in question decided upon it;
and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.
In determining "the act complained of" for the purpose of these provisions, tribunals are enjoined not to take "a narrow or legalistic view of the terms in which a complaint is couched in the originating application, but should look to see what is the substance of the complaint" (Sougrin v Haringey Health Authority).
Note: Members of the armed forces may now present complaints to tribunals under the RRA, but only after they have submitted their case to internal services procedures. To take account of this requirement to follow internal procedures, the time limit for tribunal applications in these circumstances is extended to six months (Armed Forces Act 1996 and related Regulations).
Calculating three months
Since s.68(1) requires a complaint to be presented within three months "beginning with" the date of the act complained of, that date is included in the calculation. The time limit is therefore calculated by taking the day and date immediately before the act complained of and finding the corresponding date three months later. For example, if an act of alleged discrimination occurred on 25 September 1998, a complaint must be presented on or before 24 December 1998. If there is no corresponding date in the "target" month, the time limit expires on the last day of that month (for example, if the date of the act complained of is 30 November 1998, time will expire on 28 February 1999 (other than in a leap year); and if the date of the relevant act is 1 April 1999, the time limit will expire on 30 June of the same year (there being no 31 June).
Complete cause of action
Focusing on the date of the act complained of implies that there was at that time an act of alleged discrimination, and that a potential cause of action could properly be said to be complete at that time. There would otherwise be no point in bringing proceedings (Clarke v Hampshire Electro-Plating Co Ltd). The question is therefore whether a cause of action has "crystallised"; it is not whether the complainant "feels" that he or she has suffered discrimination.
In Clarke, for example, the EAT held that a tribunal had wrongly found that the only possible date of the act complained of was the date on which the complainant's application for promotion was rejected (25 April 1989). On the facts of the case, it was perfectly possible that his cause of action in reality only crystallised some months later (on 4 September 1989), with the appointment of a white man to the post in question. This would have crystallised the cause of action by providing the comparison required by s.3(4) of the RRA (see part one, Race discrimination 1: direct discrimination).
Date of act
Where the "act complained of" under the RRA takes the form of a dismissal, the time limit runs from the date on which notice (if given) expires, and not the date on which the notice was given (Lupetti v Wrens Old House Ltd).
The acts or actions complained of may include each stage of an employer's internal disciplinary procedure, so delaying the point at which time begins to run. If a black employee, for example, complains that he or she did not succeed upon an internal appeal in circumstances where a white comparator would have succeeded, such that there is an allegation of unlawful discrimination on racial grounds in the result of the appeal, that is an "act complained of". The appellant's case, by its very nature, may apply just as much to the determination of her appeal as it did to the original disciplinary determination (see Adekeye v Post Office ). If, however, disciplinary appeals are determined after an employee's dismissal, a consequent complaint is almost certain to be precluded, not necessarily because it is not timeous, but because s.4 of the RRA applies only to prospective and existing employees, not ex-employees (see Adekeye (No.2)) and part three of this series, Race discrimination 3: discrimination in employment).
Similarly, decisions taken at each stage of an internal grievance procedure are likely to amount to independent acts which may be complained of. This includes refusals to allow an employee access to successive stages of such a procedure, where these decisions are taken by different persons, at different times, in respect of different stages of the procedure, and do not amount to a mere confirmation of an earlier act (see the Court of Appeal's decision in Akhtar v Family Services Unit). Such decisions could probably only amount to mere confirmation in the extremely unlikely event that a person hearing a grievance at an earlier stage had an express right to terminate an employee's rights under the procedure.
Reconsideration vs confirmation
The distinction between reconsideration and mere confirmation was considered at greater length by the Court of Appeal in Cast v Croydon College. There, it held that a tribunal and the EAT had erred in finding that the only relevant act of discrimination for the purpose of the time limit (under the analogous provisions of the SDA) was the first refusal of the appellant's request to return to work on a part-time basis that was made before she took maternity leave, notwithstanding that the employers reconsidered the matter again in response to a further request after she returned to work.
Lord Justice Auld confirmed that a decision by an employer may be an act of discrimination whether or not it is made on the same facts as before (that is, whether or not the further request contains "fresh material"), providing it results from a further or fresh consideration of the matter and is not merely a reference back to an earlier decision. If the matter is reconsidered in response to a further request, time begins to run again. If it is not, and the complainant is merely referred to the previous or an earlier decision, no new period of limitation arises. Different considerations apply, however, where the successive acts, even if otherwise amounting only to such confirmation, indicate or are pursuant to a discriminatory policy or regime operated by the employer. In Cast, said Auld LJ, such a policy was indeed discernible, but the employee's complaint also related to a number of decisions, each amounting to a fresh refusal of a fresh request to work part time. On that basis, the most recent refusal was the relevant one for the purpose of the statutory time limit.
Deliberate omissions
For the purposes of s.68(7)(c), a person "decides" on a deliberate omission "at a time and in circumstances when he [or she] is in a position to implement that decision". It does not mean "decides on the hypothetical basis that he [or she] will implement the decision when and if circumstances arise in which he [or she] is able to do so". Accordingly, in Swithland Motors plc v Clarke and others (decided under the SDA), the EAT held that a tribunal was wrong in holding that the time limit for presenting a complaint began to run when the employer made the decision not to employ the complainant employees, even though it was at that point still negotiating to buy the assets of the firm in which the employees were employed. An unlawful act of discrimination by omitting to offer employment cannot be committed until the alleged discriminator is in a position to offer such employment. In the present case, therefore, the employees' cause of action did not arise until completion of the take-over, and thus their applications were not out of time
Continuing acts
A good deal of case law has been generated by s.68(7)(b), which deals with what have come to be known as "continuing" acts of discrimination. The provision is not of itself concerned with individual or specific acts of discrimination, but rather the existence of an underlying and potentially discriminatory scheme, regime, practice or condition operated or maintained by an employer.
There may be such a scheme etc even though it is not of a formal nature or expressed in writing. It can be confined to a particular post or role, and its existence may be indicated by a number of managerial decisions or acts over a period of time (see again Cast). Discrimination may thus technically be alleged during the whole of the period that the scheme etc is in operation or is maintained (which may, for example, be the entire period of an employee's employment), and time consequently begins to run only at the end of that period.
Inherently discriminatory scheme
A rule or scheme which is allegedly inherently discriminatory on racial grounds, and which during its currency inevitably continues to have a discriminatory effect on, for example, levels of remuneration or access to other benefits or opportunities, provides the clearest illustration of a continuing act.
In Barclays Bank plc v Kapur, the House of Lords held that an employment tribunal had correctly concluded that it had jurisdiction to hear the employees' (who were East-African Asians) complaints that the bank's refusal when they were first employed in the early 1970s to credit their past service with banks in Africa as pensionable service was unlawfully discriminatory on grounds of race in that the bank had credited the previous service of employees of European origin. That refusal was an "act extending over a period" within the meaning of s.68(7)(b), rather than a "deliberate omission" within the meaning of s.68(7)(c). The Court of Appeal had, said Lord Griffiths, correctly classified pension provisions as a continuing act lasting throughout the period of employment and so governed by s.68(7) (b). A person "works not only for his current wage, but also for his pension and to require him to work on less favourable terms as to pension is as much a continuing act as to require him to work for lower current wages", he observed. (For a further example, see the EAT's decision in Calder v James Finlay Corporation Ltd, a case decided under the SDA counterpart to s.68(7)(b).)
Acts indicating practice
As we observed above, the existence of a policy, scheme or practice (whether formal or informal, express or implied) may be indicated by a series of employer acts or decisions.
In Cast (see above), for example, the Court of Appeal held that the employment tribunal should have found that the employer's stance in refusing to allow the complainant to work part time was a continuing "act extending over a period" (within the meaning of s.76(6)(b) of the SDA) and therefore had to be treated as "done at the end of that period", when her employment terminated. On the primary facts found by the tribunal, there were several decisions which indicated the existence of a policy that the holder of the complainant's post should work full time. Therefore, her complaint was of a policy constituting an extended act up to the time she left her employment and was to be treated as done to her up to that time.
Earlier, in Owusu v London Fire and Civil Defence Authority, the EAT concluded that a tribunal had erred in law in failing to treat the acts complained of in relation to the employer's consistent failure to regrade the complainant and to give him the opportunity to "act up" to a higher grade over a lengthy period of time as continuing acts. His allegations amounted to a prima facie case that there was a continuing act, "in the form of maintaining a practice which, when followed or applied, excluded [him] from regrading or opportunities to act up". Mr Justice Mummery warned that "an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act" (see further below). On the other hand, "an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time." What was alleged to be continuing in this case was a practice which resulted in consistent decisions discriminatory to the complainant. The tribunal here had failed to appreciate "that a succession of specific instances could indicate the existence of a practice which, in turn, could constitute an act extending over a period which is a continuing act".
It will nevertheless be a matter of evidence for a tribunal as to whether such a practice in fact exists in any given case. It may be that, when explanations are given by the employer, "it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice" (see, again, Owusu). Tribunals should make clear findings on these issues, and on the further question of whether any potentially discriminatory policy, rule or practice which they do find extended or continued into the three-month period prior to the presentation of the complaint. A failure so to do may leave their decisions open to appeal (see Owusu (No.2)).
Failure to take remedial steps
There may be a continuing act if steps or measures which have been agreed or promised by the employer to obviate or prevent the recurrence of, for example, specific incidents of racial abuse or harassment (which themselves occur more than three months before a tribunal complaint is presented) are not implemented. In Littlewoods Organisation plc v Traynor, the EAT said that this could properly be described in the same way as the practice in Barclays Bank v Kapur - that is, as "a continuing act lasting throughout the period of employment". So long as the remedial measures that have been agreed are not actually taken, a situation involving racial discrimination continues and allowing that situation to continue is capable of amounting to a continuing act of discrimination. Time will not therefore begin to run until the measures are implemented, or the employee's employment is terminated, whichever is the earlier.
Continuing consequences distinguished
As Mummery J pointed out in Owusu, all of the above examples of acts continuing over a period falling within s.68(7)(b) are in principle to be distinguished from single acts of alleged discrimination that have continuing effects or consequences. Making that distinction involves a "consideration of the particular circumstances" of the case (see Littlewoods).
For example, in Sougrin, the Court of Appeal upheld a tribunal's conclusion that the employer's decision to place the complainant black nurse at a lower grade than a white colleague and to reject her appeal against the grading was not a "continuing act" within the meaning of s.68(7)(b) of the RRA. The tribunal was entitled to hold, therefore, that the appellant's complaint, which was presented over five months after her grading appeal was rejected, was out of time. The employer's grading decision was a one-off act with the continuing consequence that the appellant was paid less than her white colleague. The decision in Kapur did not provide support for the contention that the complainant was subjected to a continuing act of discrimination. In Kapur, in stating that there would be a continuing act lasting throughout the period of employment as long as the employer continued to pay lower wages to coloured employees, Lord Griffiths was clearly referring to the case of an employer who has a policy of paying coloured employees less than their white counterparts. In the present case, there was no suggestion that there was a policy or rule that a black nurse could not be upgraded. The employer's policy was "quite clearly to pay the same wages to every employee in the same grade regardless of racial distinctions," said Lord Donaldson. The complaint here was quite different; namely, that the complainant had been refused a particular regrading for racially discriminatory reasons. (See also the SDA case Amies v Inner London Education Authority.)
Rovenska considered
Some confusion seems to have been introduced into the analysis by the Court of Appeal's decision in Rovenska v General Medical Council. A number of subsequent decisions have regarded the case as "straddling" or achieving a "hybrid position" between the above categories of "acts continuing over a period" falling within s.68 (7)(b) and "acts with continuing consequences" which fall outside the provision.
In Rovenska, the EAT, reflecting the approach previously outlined, held that the act complained of - namely the application to an overseas qualified doctor of a requirement to pass or obtain exemption from a language test in order to qualify for limited registration as a medical practitioner in the United Kingdom - was an act continuing for so long as the GMC operated the requirement and that, until such time as it was revoked or revised, time would not start to run against the complainant.
Taking a different approach, however, the Court of Appeal said that if the regime selected by the GMC for its exemptions policy was inherently discriminatory, then on every occasion that it refused to allow the complainant's request for limited registration without her first passing the language test it would be committing an act of unlawful discrimination contrary to s.12(1)(b) of the RRA (on the refusal of an authorisation or qualification by a qualifying body - see part three of this series, p.14). Accordingly, the applicant's complaint, having been made within three months of the refusal of her last application for exemption, was not time-barred. This approach has also been applied to the Department for Education and Employment's alleged continuing policy of refusing to recognise overseas qualifications as comparable to an approved UK teacher training qualification, with each refusal of a request or application constituting a fresh act of discrimination (Ewane v Department of Education and Employment).
It is important to note that Rovenska related to discrimination in relation to a profession in which there was no ongoing relationship between the parties, and not in the context of employment under s.4 (a point forcefully made by Auld LJ in Cast), and was not in fact ultimately determined under s.68(7)(b). We would submit that it should therefore be treated with caution to the extent that it might appear to modify our previous discussion.
"Just and equitable" extension
An extension of the basic three-month time limit may be granted by a tribunal, and it may thus hear a case which is otherwise out of time, "if, in all the circumstances of the case, it considers that it is just and equitable to do so" (s.68(6)). These words entitle a tribunal "to take into account anything which it judges to be relevant" (Hutchison v Westward Television Ltd). For this reason, it is unlikely that tribunals will derive much assistance "by being referred to cases decided on other tests under other statutes" (Hutchison).
Any exercise of discretion under s.68(6) is a question of fact for the tribunal. A decision on this matter will therefore only be open to challenge on appeal if it can be shown that the tribunal "demonstrably took a wrong approach to the matter, or that it took into account facts which it ought not to have done, or that it failed to take into account facts which it should have done", or that the decision was perverse. Complainants should also ensure that the issue of a possible extension of time is raised directly in submissions, since a tribunal is not bound to raise the matter of its own motion (see Dimtsu v Westminster City Council).
Further, the words "in all the circumstances of the case" in s.68(6) do not require a tribunal to hear the entire complaint before deciding on whether to extend time: "The words refer to the actual facts so far as relevant to the matter in hand" (Hutchison). But a tribunal is not precluded from considering the merits of a complaint, and taking into account the "strength or weakness" of the complainant's case (Bhatt v Pioneer Plastic Containers Ltd).
Broad discretion
The breadth of the "just and equitable" criterion is confirmed in Hawkins v Ball, a case decided under the equivalent provision of the SDA. There, the EAT upheld a tribunal's finding that it was just and equitable to extend the statutory time limit for complaining because the claimant had been given erroneous legal advice. Mr Justice Keene said that the obtaining of incorrect legal advice may be relevant to a decision on whether it is just and equitable in all the circumstances to extend the time limit for complaints, and it could not be accepted that, on the authority of cases dealing with time limits in unfair dismissal proceedings, it was an irrelevant consideration which the tribunal should not have taken into account.
Tribunals thus have a significantly broader discretion to grant extensions in race (and sex) discrimination cases than in unfair dismissal cases, where the tribunal has to be satisfied that it was not "reasonably practicable" for an complaint to be presented within the prescribed period. In contrast, the obtaining of incorrect legal advice, for example, may well constitute "a reason" for the delay which has occurred in presenting a complaint, and in those circumstances it is potentially relevant to a decision on what is "just and equitable in all the circumstances". There is no reason to limit the width of the broad discretion given to tribunals by s.68(6) of the RRA in that particular respect.
Similarly, in Clarke v Hampshire Electro-Plating, the EAT said that in exercising their discretion under s.68(6), tribunals should consider whether "it was reasonable for the applicant not to realise that he had the cause of action or, although realising it, to think that it was unlikely that he would succeed in establishing a sufficient prima facie case without evidence of comparison". Thus, even if a complainant's cause of action has "crystallised" at a certain date, and he or she is, broadly speaking, aware at that time that he or she has "a right" to complain of racial discrimination, it might nevertheless be reasonable for him or her, as a layperson, to delay going for specific advice from his or her trade union or others until the relevant comparison can be made, and for there to be a just and equitable extension of time accordingly.
Experience relevant
On the other hand, tribunals may just as legitimately reach the opposite conclusion, having taken account of the individual complainant's experience, knowledge, expertise or awareness.
For example, in Hutchison, the EAT upheld a tribunal's conclusion that an extension of time should not be granted to a complainant in a sex discrimination case. Amongst the matters deemed relevant were the facts that she was a union member; she had sought some preliminary advice from her "shop steward", although she had not, as she might have done, sought further legal advice; she was described as "intelligent, lucid and well educated"; and her initial decision not to proceed "was a conscious decision not to pursue a claim ... the existence of which she knew". Further, the tribunal found that she had not acted "diligently" in pursuing her complaint, when she had subsequently seen a newspaper article which indicated that she might actually have had a strong case.
More recently, in Candy v London Borough of Lambeth, the EAT upheld a tribunal chair's decision to refuse an extension of time under s.68(6) by "even the short period of one day". He was influenced by the facts that the complainant had been in touch with CRE, and had sought legal advice on the effect of a compromise agreement relating to his early retirement and redundancy. In addition, it was noted that the complainant had 16 years' experience in personnel, and time limits "were well known to him".
OBTAINING INFORMATION
It has been judicially recognised that the necessary information and material to support or refute a claim under the RRA will rarely be in the possession of the employee or job applicant, but, on the contrary, "is likely to be in the possession of the employer". In this context, the House of Lords has observed that "Parliament has shown that its policy is that [individual complainants] should have every chance to lay before the tribunal or the court all material that may be relevant to a discrimination claim" ((1) Nasse v Social Science Research Council (2) Vyas v BL Cars).
Questionnaires
The clearest indication of that policy is the questionnaire procedure provided for by s.65 of the RRA and the Race Relations (Questions and Replies) Order 19772 ("the 1977 Order"). This procedure is intended to help a person who considers he or she may have been discriminated against in contravention of the Act "to decide whether to institute proceedings and, if he [or she] does so, to formulate and present his [or her] case in the most effective manner" (s.65(1)). It is additional to, and not a substitute for, more established methods of obtaining information such as discovery of documents.
There are prescribed standard forms for asking questions and providing replies set out in Schedules to the 1977 Order. In essence, the complainant sets out the date, approximate time and a factual description of the treatment alleged and of the circumstances leading up to it, and may state why he or she considers that the treatment meted out by the employer "may have been unlawful". He or she then asks whether the employer agrees with the factual statement of the circumstances and, if not, why not. Similarly, the questionnaire also asks the employer whether it accepts that the treatment alleged was unlawful discrimination, and, again, if not, why not. The employer is then asked to give its reasons for the treatment accorded to the complainant, and the extent to which racial considerations affected that treatment. There is room on the questionnaire for "any other questions" the complainant may wish to ask.
Subject to complying with the time limits set out below, the questionnaire, and any reply by the employer, is admissible as evidence in tribunal proceedings (s.65(2)(a)). Further, s.65(2)(b) provides that:
If it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act.
To take advantage of these provisions, the questionnaire must: if served before a complaint has been presented to a tribunal, be served "within the period of three months beginning with the date when the act complained of was done"; if served when a tribunal complaint has been presented, within "21 days beginning with the day on which the complaint was presented"; or later, if served with leave and within a period specified by the tribunal (article 5 of the 1977 Order).
Approach of tribunals
The approach taken to the questionnaire procedure by courts and tribunals was considered by the EAT in Carrington v Helix Lighting Ltd. Confirming that complainants face considerable difficulties in proving their case, and that tribunals need to be prepared to draw inferences from primary facts (see part one of this series), Mr Justice Wood made the following points in relation to the questionnaire procedure:
Permissible questions
Subject to these caveats, a complainant may seek wide-ranging information during the s.65 questionnaire process. The employer's obligation to provide answers may, however, be qualified by considerations of the confidentiality of third parties and the circumstances of the case.
In Oxford v Department of Health and Social Security, for example, a complainant who was unsuccessful in her application for a post of clerical officer wanted to know the names and addresses, the sex and the ages of the successful applicants, who were offered or received appointments. He was informed of the sex and ages of those persons, but not their names or addresses. The EAT commented that "ordinarily we think it is right on the part of the person being questioned to decline to give the name or address of the successful applicant. To do so is only likely to cause trouble and many applicants who have been successful would not wish the confidentiality of their positions to be disclosed."
On the complainant's further request for information on the qualifications of the successful applicants, the EAT generally saw "no reason why such information as to qualification should not be disclosed, and we think that it should be. In applications of this kind it is perfectly simple for the identity of the individual to be concealed under a letter - "A", "B", "C" - and for the address to be withheld, but the other information relevant to the particular case to be disclosed." On the facts of the present case, however, the complainant had not asked about qualifications in his original questionnaire, and he had no ground of complaint in the particular circumstances, because the evidence before the employment tribunal had disclosed that all the applicants who were interviewed, including himself, had the minimum educational requirements for the job in terms of "O" levels or equivalent qualifications. This was a simple, routine clerical duty and all that it was really necessary to consider was that minimum educational requirement. Further examination or particularity was in the circumstances of the case not necessary.
Discovery
An employment tribunal may, on the application of either party to proceedings, or of its own motion, require:
This means that a tribunal may order discovery (within a period which it may specify) of such relevant existing documents (see Helix above) as it thinks fit, except if and so far as it is of the opinion that it is "not necessary either for disposing fairly of the proceedings or for saving costs". If the tribunal is satisfied that it is necessary to order certain documents to be disclosed and inspected in order fairly to dispose of the proceedings, then the law requires that such an order should be made, and the fact that the documents are confidential is irrelevant. The authoritative guidance given by the House of Lords in Nasse and Vyas on the question of discovery of confidential documents is summarised in the box.
Note: A failure to comply with an order for discovery under rule 4(1)(b) may lead to the striking out of the whole or part of an originating application or the respondent's notice of appearance and, where appropriate, a tribunal may direct that the respondent "shall be debarred from defending altogether" (rule 4(7) of the 1993 Rules). This rule is "punitive" in nature, and its fundamental objective is to secure compliance with discovery orders. It is only in the most serious cases that punishment should be considered - where, for example, as a result of the failure to disclose or to disclose timeously, a tribunal concludes that "any judgment ultimately obtained could not be considered to be fair between the parties" (see National Grid Company plc v Virdee).
Discretion illustrated
Courts and tribunals have, by and large, taken a fairly robust approach to the exercise of their discretion to order discovery.
In West Midlands Passenger Transport Executive v Singh (see also part one of this series), for example, the employer resisted an application for further discovery, and in particular for details of the ethnic origins of all applicants for, and appointees to, posts within a band of grades broadly comparable to that for which the applicant applied (at senior inspector level) in December 1985, for the period since the adoption of the employer's equal opportunities policy statement in 1983. The Court of Appeal upheld a tribunal's order that such discovery should be made. Lord Justice Balcombe said that the statistical material ordered was relevant to the issues in this case, in that: (1) it might assist the applicant in establishing a positive case that treatment of coloured employees was on racial grounds, which was an effective cause for their, and his, failure to obtain promotion; and (2) it may assist the applicant to rebut the employer's contention that they operated in practice an equal opportunities policy which was applied in his case. The discovery sought was not only relevant but necessary for fairly disposing of the case, and production of the documents at issue would not be oppressive to the parties.
By contrast, in Rasul v Commission for Racial Equality, the EAT held that the complainant was entitled to discovery of documents from the employer which would enable him to make a comparative analysis between his own qualifications and history, and that of his competitors for the job for which he applied unsuccessfully, in order that the employment tribunal could legitimately draw the inference that the reason for his non-success was that the respondents had discriminated against him on grounds of his race. In the present case, since the appellant had been shortlisted for the post for which he applied, the comparative analysis from which inferences could properly be drawn was that between the nine shortlisted candidates (as opposed to all 154 applicants for the post). It was therefore in the interests of justice that the appellant be given discovery of all applications received from those shortlisted candidates, their references and curricula vitae; and all documentary information available to the employer at the time of interview, and before or at shortlisting in relation to them. The interests of justice equally required that discovery should be restricted in that way.
Discovery of statements made during the course of an internal grievance procedure dealing with an employee's allegations of discrimination is likely to be regarded as necessary for fairly disposing of the employee's subsequent complaint(s) under the RRA (see Commissioner of Police of the Metropolis v Locker).
Oppressive disclosure
There may be objections to requests for discovery on the ground that it is "fishing". The tribunal may decide that a particular request is "oppressive", and, even where it is relevant, it should not be ordered if the court is of the opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs. Discovery may be oppressive in two respects: (1) it may require the provision of material not readily to hand which can only be made available with difficulty and at great expense; (2) it may be to require the party ordered to make discovery to embark on a course which will add unreasonably to the length and cost of the hearing.
For example, in Helix, the tribunal also decided that to make the order for discovery sought would be oppressive. The EAT said that this was essentially a matter within the tribunal's discretion. In the present case, there were only some 155 employees, but the tribunal may very well have had in mind the fact that the only employees relevant to the complaint in question were those in employment at a particular date; that there was a considerable turnover in the workforce; and that the tribunal had been assured there was no documentation which was relevant to the issue. It would therefore have meant an investigation throughout the workforce and, in considering oppression, the tribunal might legitimately have taken into account the possibility of "exacerbating" tensions in the factory.
Written questions and answers
Rule 4(3) of the 1993 Rules introduced a general power for a tribunal, either at the behest of one or other of the parties or of its own motion, to require a party to furnish (within a period which it may specify) written answers to any question, if it considers that the answer may help clarify any issue likely to arise in the proceedings; and that it would be likely to assist the progress of the proceedings for that answer to be available to the tribunal before the hearing. The punitive sanctions contained in rule 4(7) (see above) also apply to a failure to comply with a requirement imposed under this provision.
Note: The process of obtaining further particulars under rule 4(1)(a) of the 1993 Rules (see above) cannot of itself be used to remedy deficiencies in questionnaire, discovery, or written question-and-answer procedures. Particulars are the basis whereby a party may ascertain the way the other side is putting its case, so that he or she can prepare accordingly. Their function is to flesh out the details of the claim, although not running to evidence, so that a party can prepare accordingly. Further particulars are not, therefore, evidence. The widest form in which they can be ordered is by way of "the nature of the case" (see, again, Helix).
REMEDIES
Where an employment tribunal finds a complaint under the RRA to be well-founded, it may make such of the following awards as it considers to be "just and equitable":
Compensatory principle
By virtue of the interaction between ss.56(1)(b) and 57, it is clear that unlawful acts of discrimination under the RRA are statutory torts, and are to be dealt with as if the victim had brought an action for damages in tort in the county court (or, in Scotland, an action in reparation for breach of statutory duty in the sheriff court). Common law principles for assessing damages therefore apply, and "compensation is to be awarded for foreseeable damage arising directly from an unlawful act of discrimination" (Coleman v Skyrail Oceanic Ltd), including compensation for injury to feelings (see further below). The relevant principle is that, as best as money can do it, complainants must be put into the position they would have been in but for the unlawful conduct of the discriminator/tortfeasor (Ministry of Defence v Cannock). Successful complainants are under the usual common law duty to mitigate their losses.
There is now no limit on the amount of compensation that may be awarded4. Where the tribunal considers it to be just and equitable to make an award, the loss actually sustained by the victim must, therefore, be compensated or made good in full. In the case of a racially discriminatory unfair dismissal, compensation should be awarded under the RRA, in order to give the complainant that full compensation, rather than under Part X of the Employment Rights Act 1996 (the ERA) (see D'Souza v London Borough of Lambeth). Compensation will not, however, be awarded in respect of unintentional indirect discrimination (s.57(3) of the RRA - see below).
It is for the discretion of tribunals whether or not to make a separate award of compensation against individual employees named as respondents to a claim. There is no general rule or presumption that wherever it is possible to order the employer to pay by finding him vicariously liable for the employee's act, that should be done (Armitage and others v Johnson). An appellate court is entitled to interfere with a tribunal's assessment of compensation only where the tribunal has acted on a wrong principle of law; misapprehended the facts; or for other reasons has made a wholly erroneous estimate of the damage suffered (Coleman).
Pecuniary loss
Compensation will cover any pecuniary loss suffered by a complainant which is attributable to an unlawful act of discrimination, including:
Injury to feelings
By virtue of s.57(4) of the Act, it is clear that compensation also covers injury to feelings. Although it is technically a matter for the applicant to establish the heads of claim, a claim for injury to (or hurt) feelings has been described as "so fundamental" to a discrimination case "that it is almost inevitable". All that is required is that the matter of hurt feelings be simply stated. It is then for the employment tribunal to consider what degree of hurt feelings has been sustained and to make an award accordingly (Murray v Powertech (Scotland) Ltd). But an award is not automatic - injury to feelings unrelated to the relevant unlawful act or acts of discrimination will not be compensated. Any award under this head of loss must result from the complainant's "knowledge" of the discrimination (Coleman).
It will, nevertheless, "often be easy to prove, in the sense that no tribunal will take much persuasion that the anger, distress and affront caused by the act of discrimination has injured the applicant's feelings" (Cannock), or that the complainant knows of the discrimination and that he or she has thereby been held up to "hatred, ridicule or contempt". This can cover, for example, the hurt, humiliation and insult experienced by a complainant as a result of being subjected to a negative racial stereotype (Alexander v The Home Office), and the injury occasioned as a result of "high-handed", inconsistent, insulting or oppressive behaviour by the employer (indeed, such conduct may in itself aggravate or compound the injury - see below). And the tribunal may legitimately take account of the effect of the discriminatory and related conduct on the complainant's physical or mental health in determining the extent of any injury (Widlinski). Injury to feelings is, however, more often likely to be of a relatively short duration, and is therefore generally regarded as less serious than physical injury to mind or body which may persist for months or years (Alexander v The Home Office).
The relevant principles for assessing such awards were usefully summarised by Mrs Justice Smith in Armitage and others v Johnson:
In Armitage, the EAT upheld a tribunal's award of £21,000 under this head. Although this was (at the time) larger than any other reported award for injury to feelings, it was not so high as to justify interference. It was not grossly or obviously out of line with the general range of personal injury awards, or with the Court of Appeal's award of £25,000 for injury to reputation in a recent libel case involving Elton John (John v MGN). Further, said the EAT, the Court of Appeal's decision in Noone v North West Thames Regional Health Authority did not require a finding that the award in the present case was outside the appropriate range. The £3,000 award for injury to feelings in Noone in 1988 might well have been higher had there been no statutory limit on compensation. In any event, the Noone case was not of great assistance because its facts were so different in that the injury to Dr Noone's feelings was the thwarting of ambition, whereas Mr Johnson had been exposed to "humiliation, ostracism, ridicule and contempt" over a period in excess of 18 months.
Aggravated damages
Aggravated damages may in principle be awarded as part of the compensation for injury to feelings. The discriminatory acts may thus be sufficiently intentional as to enable the applicant to rely upon malice or the respondent's manner of committing those acts or other conduct as aggravating loss under this head. To establish aggravated hurt to his or her feelings, the complainant must have had some knowledge or suspicion of the conduct or motive which caused that increase (Ministry of Defence v Meredith).
For example, in Armitage, the EAT held that an additional award of aggravated damages (£7,500) was not so high as to be outside the bracket of reasonable awards. The employer's investigation of the complaints of race discrimination, instead of providing the applicant with a remedy for the wrongs which he had suffered, had added to his injury. Although features of mitigation should be taken into account in reduction of aggravated damages, the greatest mitigation would have been an apology, which was never offered.
The highest award to date for injury to feelings (totalling £33,000) was made in Qureshi v Victoria University of Manchester and another. There, the basic figure of £25,000 reflected "the extremely long period of stress, frustration and sense of injustice which mounted and accumulated over a period of many years", together with the complainant's victimisation, sense of isolation at work, and the lack of support he received from his employer and colleagues. A further £8,000 in aggravated damages took account of, amongst other things, the employer's lack of perception or apparent interest in equal opportunities issues and its negative, inadequate and hostile response to the raising of such issues; and the application of "double standards" and adoption of an often brusque, dismissive and critical attitude, in its dealing with the complainant (as well as the absence of any apology).
Note: The generality of awards for injury to feelings (including aggravated damages) are much more modest. A recent comprehensive survey of compensation awards made by tribunals in 1997, published in IRS's Equal Opportunities Review (No.81, September/October 1998), found that the average award under this head was £4,632, with the median award £2,500. Average total compensation (covering all heads of loss) was £8,220. In addition, interest is payable on compensation in respect of past pecuniary losses (but not future losses) and injury to feelings (see the Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 19965). Exemplary damages are not available in RRA cases (Deane v London Borough of Ealing).
"Intentional" indirect discrimination
Section 57(3) of the RRA provides that "no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds." The relevant state of mind for the purposes of this provision was considered by the EAT in JH Walker Ltd v Hussain and others. Mr Justice Mummery said that, as a matter of ordinary English, "intention" in this context signifies the state of mind of a person who, at the time when he or she does the relevant act (that is, the application of the requirement or condition resulting in indirect discrimination):
In the EAT's view, s.57(3) "is not concerned with an inquiry into the motivation of a respondent, ie why he did what he did. It is concerned with the state of mind of the respondent in relation to the consequences of his acts. He intended those consequences to follow from his acts if he knew when he did them that those consequences would follow and if he wanted those consequences to follow ... Depending on the circumstances, a tribunal may infer that a person wants to produce certain circumstances from the fact that he acted knowing what those consequences would be."
Applying this approach to the facts of the case - which involved the application of an indirectly discriminatory company policy prohibiting holidays being taken by staff during its busy period in May-July of each year (see part one of this series) - the EAT upheld the employment tribunal's decision that the discrimination was intentional. The company knew that the Islamic religious day, Eid, was important to the Muslim employees; that they were the only employees affected by the application of the condition or requirement; and that they were required to work on that day.
Recommendations
Recommendations under s.56(1)(c) of the Act must be made with a view to obviating or reducing the adverse effects on the complainant of the relevant act or acts of discrimination. It follows that it is impermissible for a tribunal to make general recommendations about an employer's existing or future employment practices insofar as they affect persons of minority racial groups (Bayoomi v British Railways Board). In Bayoomi, for example, the complainant had been dismissed, so recommendations of that type could not in any event affect or benefit him. Instead, the employment tribunal made a recommendation that the employer should, in any references to or communications with potential employers of the complainant, expressly state that the circumstances of his dismissal "reflected no discredit on him", and amounted to unlawful racial discrimination.
The power to make recommendations similarly does not encompass ordering acts of positive discrimination in favour of the successful complainant. Thus, in British Gas plc v Sharma, the EAT overruled a tribunal's recommendation that the complainant should be promoted to the "next suitable vacancy". Promoting the complainant on this basis, without considering other applicants who might have superior qualifications, could amount to direct discrimination against those applicants. And, said the EAT, s.56(1)(c) envisages a time limit for the prescribed action to be taken, and it would be impossible to impose a time limit in the present case because a vacancy could arise at any time. In any event, such a recommendation would, following the Court of Appeal's view in Noone v North West Thames Regional Health Authority (No.2), be "ultra vires". Neither does the power to make recommendations include the power to make recommendations as to the payment of wages or other aspects of remuneration. Monetary compensation for such losses is fully provided for by s.56(1)(b) above (Irvine v Prestcold Ltd).
If, however, without reasonable justification the employer fails to comply with a validly made recommendation, a tribunal may, if it thinks it just and equitable to do so, either increase the amount of compensation awarded under s.56(1)(b); or, if such an order could have been made but was not, make an award of compensation (s.56(4)).
No contracting-out
It is in principle impermissible to contract out of the protection of the RRA. Any term in a contract which purports to limit or exclude the operation of the Act is, therefore, "unenforceable" by any person in whose favour the term would otherwise operate (s.72(3)). This prohibition applies, however, without prejudice to the possibility of a complainant making a binding compromise agreement of his or her claim (with appropriate legal advice - see Employment Rights (Dispute Resolution) Act 1998) or a valid settlement under the auspices of an ACAS conciliation officer (s.72(4)).
More generally, any term in a contract which provides for unlawful discrimination against a third party is void (s.72(1)). Such a term is also unenforceable against a party to the contract (s.72(2)), who may apply to the county court or (in Scotland) the sheriff court for an order removing or modifying the offending term (s.72(5)).
ROLE OF THE CRE
The CRE has three general duties:
In pursuance of these aims the CRE can inform, educate and advise by, amongst other things, assisting (financially or otherwise) organisations in the field of equal opportunities and race relations; undertaking or assisting (financially or otherwise) research or educational activities; producing its annual reports; and issuing Codes of Practice (see part one of this series).
Assistance and enforcement
More specifically, the CRE has significant legal powers relating to the enforcement of the Act. These include the following:
1 1983.
2 SI 1977/842.
3 SI 1993/2687.
4 The previous limit was removed by the Race Relations (Remedies) Act 1994.
5 SI 1996/2803.
Race discrimination 4: main points to note
-an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
-an order requiring the respondent to pay to the complainant compensation calculated on common law principles applicable in actions in tort. This covers all foreseeable losses flowing from the unlawful discriminatory act or acts, including past and future pecuniary losses and injury to feelings;
-a recommendation that the respondent take, within a specified period, action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates.
Discovery of confidential documents: the Nasse and Vyas guidelines6
6 Extracted from the opinion of Lord Wilberforce.
In April of this year the CRE produced its latest set of proposals for the reform of the RRA7. Below, we summarise the most important of those proposals which relate directly to the employment field. We understand that the CRE's submission is currently the subject of consultation by the Home Office8, and informed sources suggest that there is at least a "reasonable prospect" of some reform as a result.
The CRE argues for, amongst other things:
7 Reform of the Race Relations Act 1976: proposals from the CRE, April 1998.
8 Responses should reach the Home Secretary by 6 November 1998.
CASE LIST
Adekeye v Post Office [1993] IRLR 324 (EAT) and (No.2) [1997] IRLR 105 (CA)
Akhtar v Family Services Unit 6.11.98 Court of Appeal
Alexander v The Home Office [1988] IRLR 190
Amies v Inner London Education Authority [1977] ICR 308
Armitage and others v Johnson [1997] IRLR 162
Barclays Bank plc v Kapur [1991] IRLR 136
Bayoomi v British Railways Board [1981] IRLR 431
Bhatt v Pioneer Plastic Containers Ltd 3.12.91 EAT 108/90
British Gas plc v Sharma [1991] IRLR 101
Calder v James Finlay Corporation Ltd [1989] IRLR 55
Candy v London Borough of Lambeth 27.5.98 EAT 400/97
Carrington v Helix Lighting Ltd [1990] IRLR 6
Cast v Croydon College [1998] IRLR 318
Chapman v Simon [1994] IRLR 124
Clarke v Hampshire Electro-Plating Co Ltd [1991] IRLR 490
Coleman v Skyrail Oceanic t/a Goodmos Tours [1981] IRLR 398
Commissioner of Police of the Metropolis v Locker [1993] IRLR 319
D'Souza v London Borough of Lambeth [1997] IRLR 677
Deane v London Borough of Ealing [1993] IRLR 209
Dimtsu v Westminster City Council [1991] IRLR 450
Dodd v British Telecommunications plc [1988] IRLR 16
Ewane v Department of Education and Employment 19.12.97 EAT 1447/96
Hammond v Haigh Castle & Co Ltd [1973] IRLR 91
Hawkins v Ball and another [1996] IRLR 258
Hutchison v Westward Television Ltd [1977] IRLR 69
Irvine v Prestcold Ltd [1981] IRLR 281
JH Walker Ltd v Hussain and others [1996] IRLR 11
John v Mirror Group Newspapers Ltd [1996] 3 WLR 593
Khan v General Medical Council [1994] IRLR 646
Littlewoods Organisation plc v Traynor [1993] IRLR 154
Lupetti v Wrens Old House Ltd [1984] ICR 348
Mensah v East Hertfordshire NHS Trust [1998] IRLR 531
Ministry of Defence v Cannock [1994] IRLR 509
Ministry of Defence v Meredith [1995] IRLR 539
Murray v Powertech (Scotland) Ltd [1992] IRLR 257
Nagarajan v London Regional Transport [1998] IRLR 73
(1)Nasse v Social Science Research Council (2) Vyas v BL Cars [1979] IRLR 465
National Grid Company plc v Virdee [1992] IRLR 555
Noone v North West Thames Regional Health Authority [1988] IRLR 195 and (No.2) [1988] IRLR 530
Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 and (No.2) 11.3.98 EAT 703/97
Oxford v Department of Health and Social Security [1977] IRLR 225
Prestige Group plc, re [1984] IRLR 166
Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR 353
Qureshi v Victoria University of Manchester and another 21.11.97 case no.01359/93
Racial Equality Council and others v Widlinski 26.5.98 EAT 619/97
Rasul v Commission for Racial Equality [1978] IRLR 203
Rovenska v General Medical Council [1997] IRLR 367
Sougrin v Haringey Health Authority [1992] IRLR 416
Swithland Motors plc v Clarke and others [1994] IRLR 275
West Midlands Passenger Transport Executive v Singh [1988] IRLR 186
