Appeal No.	 EAT/484/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 19 September 2001

Before
MR RECORDER LANGSTAFF QC
LORD GLADWIN OF CLEE CBE JP
MRS R A VICKERS

MR L MULRAINE	APPELLANT

ABC CONTRACT SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

MR RECORDER LANGSTAFF QC:

1	This is a preliminary hearing in an appeal against a decision of the Employment Tribunal sitting at London Central.  In Extended Reasons delivered on 22 February 2001 that Tribunal dismissed the Appellant’s claims that he had been subject to constructive unfair dismissal and his complaints of direct race discrimination, contrary to sections 1 and 4 of the Race Relations Act 1976.  

2	This appeal considers only one aspect of the alleged direct racial discrimination, that is, racial abuse.  There are two separate matters of racial abuse with which it is concerned.

3	The facts as found by the Employment Tribunal were these.  A Mr Smith probably in spring 1999 referred to the Appellant in his absence as a “fat black bastard”.  That was in the presence of three other men, all senior employees of the Respondent, who were all white.  The question is whether or not Mr Mulraine, not having been there at the time and having learnt of the abuse only subsequently and being told of it by one of the three other white men who were there, has a complaint which he can legitimately bring within the terms of the Race Relations Act 1976.  

4	The second incident was a comment made to a subordinate of his.  This is referred in the Employment Tribunal’s decision only in paragraph 43 in these terms:

“Mr Mulraine has also complained of race discrimination in relation to the abuse of Mr Banks on 17 June 1999.  That is not less favourable treatment of Mr Mulraine and for this reason his complaint of racial discrimination falls.”

5	The complaint in respect of the incident involving Mr Banks reflects something which is found in the Originating Application on the second page of the typed grounds at the fourth paragraph, in one sentence.  It reads:

“I understand that Mr Smith has also called Sam Banks a “black something,” whilst speaking to him.”

The issue there is whether the Tribunal were entitled simply to say that because the comment was directed to Mr Banks it did not, for that reason, fall within the Race Relations Act 1976.  
We shall deal with each of the two matters of complaint separately.

The first complaint

6	It is said by the Employment Tribunal that the applicable law is to be found in De Souza v The Automobile Association [1986] IRLR 103.  At paragraph 38 of its Decision the Employment Tribunal sets out an extract from the headnote which itself reflects paragraph 24 of that report.  There in the judgment of Lord Justice May, with which Lords Justices Slade and Neill agreed, Lord Justice May having set out the applicable principles of law applied them to a case which has such similarity to the present that the applicability of the principles should produce the same consequence.  That was a case in which the complainant overheard one manager tell another, with respect to her, that he should get his typing done by “the wog”.  The application of the principles was set out in these terms:

“Even though the use of the insulting word in respect of the appellant may have meant that she was considered less favourably, whether generally or in an employment context than others, I for my part do not think that she can properly be said to have been treated less favourably by whomsoever used the word, unless he intended her to overhear the conversation, in which it was used, or knew or ought reasonably to have anticipated that the person he was talking to would pass the insult on or that the appellant would become aware of it in some other way.”

7	The Employment Tribunal, having set out those principles posed the issue that they had to address in these terms:

“The issue for the Tribunal is whether Mr Smith anticipated that the three people he was talking to would pass on the abusive comment to Mr Mulraine.”

They went on to resolve that question.  They said, in paragraph 41:

“Mr Mulraine has not proved on the balance of probabilities that Mr Smith ought reasonably to have anticipated that Mr Bruchez (he was one of the three) would have passed on the abusive comment and for that reason Mr Mulraine has failed to satisfy the test in De Souza.”

8	Accordingly, the Tribunal held that because Mr Mulraine had not proved that Mr Smith ought to have anticipated that Mr Bruchez would pass on the information, his claim in that respect failed.

9	The powers of this Appeal Tribunal are limited.  We cannot interfere with a finding of fact by an Employment Tribunal unless it is manifestly absurd, nor can we interfere with a conclusion of the Employment Tribunal if there was material to support it unless the direction of law given to itself was wrong.  

10	The direction in law, it had been argued before us, was in error in two respects.  First, said Mr Mulraine who represented himself, the burden of proof was specifically imposed by the Employment Tribunal upon him.  This was too strict a test.  The Employment Tribunal had the material before it in evidence which it could have used to determine or infer that a comment of the sort made would, indeed, be passed on or at least would be likely to be passed on.  By imposing a burden of proof Mr Mulraine went on to argue they were asking for further material to be provided by him, without recognising that they did not need any further material to reach the conclusion which they reached.  He has supported that central submission by references to the power of a Tribunal to draw appropriate inferences and by the assertion that because he knew the identity of the individuals concerned and the way in which they inter-related, that it was inevitable that he would hear of the comment.

11	We have considerable sympathy with Mr Mulraine’s views.  However, the question we have to ask is whether the Tribunal posed the right test and, secondly, whether they had sufficient material before them to conclude that that test had not been satisfied.  In our view they posed the test which derived from De Souza.  As to the burden of proof, we regard this in the Employment Tribunal’s Decision as not imposing any further evidential burden than that which was already present at the time of the hearing, which was the general burden of proof that Mr Mulraine had as an Applicant in proving racial discrimination against him.  

12	The decision whether or not Mr Smith anticipated that the three people he was talking to would pass on the abusive comment is not one for us to make.  The judgment which is implicit in that issue is a judgment which is specifically given to the Employment Tribunal to make.  It was their task to evaluate the evidence.  We cannot see that they necessarily were wrong to come to the conclusion they did, nor do we think that it would be reasonably arguable that they were in such error.  It follows that, despite our sympathies, we cannot hold that there is an arguable point of law.  

13	We should make one further comment.  The test in De Souza not only reads “knew or ought reasonably to have anticipated that the result would be passed on” but adds the words “or that the appellant would become aware of it in some other way”.  When the Tribunal posed the test to themselves, which they did at paragraph 40, they did not examine the second limb.  They did not say “would the appellant have become aware of it in some other way”.  The reason we think why that does not here give rise to any arguable point of law is that there was, in the circumstances, no other way in which the appellant have reasonably have become aware of the comment.  Having been made to three people, only one of those three or indeed Mr Smith himself could be the reason for it becoming more public and being passed on.  We do not therefore think that there was here any error of law.

14	Finally, we would observe that, although the test “knew or ought reasonably to have anticipated that the result would be passed on”, imposes a high evidential standard because it requires a balance of probability, rather than the recognition of a serious risk that the word may be passed on, this is something which we think is precluded by present authority from consideration in this case, much as it may later be examined by a higher court if ever the proper occasion arises.

The second complaint

15	The second complaint poses an issue of law which if we thought there was a proper ground to argue we would have permitted to go to a full Tribunal.  The question is whether a detriment may be suffered by somebody to whom the act of discrimination is not addressed.  If the answer is yes, then we would have considered that it was at least arguable that this Employment Tribunal had not properly dealt with the question of whether the abuse of Mr Banks might lead to a proper claim by Mr Mulraine.  The wording of section 4 of the Race Relations Act 1976 in its relevant parts is this:

“4(2)  It is unlawful for a person … to discriminate against that employee –
(c)	by dismissing him, or subjecting him to any other detriment.”

16	The wording indicates that the discrimination against an employee must lead to a detriment which he suffers.  It links the detriment as being the detriment of the person subject to the act of discrimination.  Section 1 of the 1976 Act defines discrimination relevant to these circumstances.  It defines it as “on racial grounds treating that other less favourably than he treats or would treat other persons”.

17	Mr Mulraine has argued that there is authority which requires us to hold that an act of discrimination against another, such as Mr Banks, might lead to a detriment in a third party such as he, Mr Mulraine, for which that third party could make a claim under the Act.  The authority he relies upon is Showboat Entertainment Centre Ltd v Owens [1984] IRLR 7.  

18	We have examined that authority with some care.  We do not think that it supports that contention, nor could arguably be said to do so.  It was a case in which a white man alleged that an instruction given to him to discriminate against blacks was something which fell within section 1 of the Act.  For it to do so discrimination on racial grounds had to be capable of relating to a race which was not that of the complainant.  That was the issue in the Showboat case when it came before this Tribunal.  This Tribunal held, in order to give force to the 1976 Act that indeed the race referred to in the words “on racial grounds” need not be the race of the complainant.  In the course of reaching that conclusion, however, at paragraph 11, Mr Justice Browne-Wilkinson said this:

“It is plain that the person ‘against’ whom there has been discrimination is the person who is being treated less favourably by the discriminator, ie the words ‘that other’ in sub-paragraph (a) refer back to ‘another’ in the phrase ‘a person discriminates against another’ at the beginning of the subsection.  Therefore the only question is whether Mr Owens was treated less favourably ‘on racial grounds’.”

And he then went on to consider the width of “racial grounds”.

19	In saying that it was plain that the person who had been discriminated against was the person treated less favourably, he was drawing a link between less favourable treatment which in itself may be almost indistinguishable from the detriment under section 4, though it need not be the same and the act of discrimination.  We do not see in this case anything that would persuade us to think that a Tribunal could conclude that the plain wording of section 4 does not require a detriment to be suffered by the person, who is subject to the less favourable treatment, which is the essence of the discrimination prohibited under the 1976 Act.  Indeed, if Mr Mulraine’s submission were right, it would follow that the moment it was proved that there had been an act of less favourable treatment on the grounds of race to anyone at a workplace, any other person, whether of the same colour or another colour within that workplace or the same race or another race within that work place, would be entitled to complain that they had suffered a detriment, because the Showboat case demonstrates that the racial identity of the complainant is not linked to the racial identity of the racial grounds referred to.

20	We think that that would be a surprising conclusion to draw in relation to an Act which carefully distinguishes between the rights of several different individuals and the liabilities of different categories of person for the racial discrimination.  Because of the interpretation which we think to be unarguably right we have therefore found ourselves unable to think that Mr Mulraine has here an arguable case that can be brought within the terms of the Act and that the Employment Tribunal were in error in dealing with the case which led to Mr Banks in the way they did in paragraph 43.  Whatever the moral merits of his claim he has, we think, no arguable case that it has legal merits.

21	It follows that having determined that there is, as we see it, no arguable ground on either of the bases addressed to us, this appeal must be dismissed.