THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1.
The Claimant, when a migrant domestic worker, was exploited and treated badly
by the Respondents. She complained to Watford Employment Tribunal (Employment
Judge Ryan, Mr. Walsh, Ms. Sood) that she had been unfairly dismissed,
discriminated against directly, and subject to harassment on the grounds of
race, had been given no itemised pay statements, nor statement of terms and
conditions of employment, had not been paid the National Minimum Wage and was
entitled to the unpaid amounts as unlawful deductions from her wages, and was
not given either 24 hours rest in any 7 day period of work nor afforded annual
leave in accordance with the Working Time Regulations.
2.
The Tribunal found in her favour on those claims for reasons promulgated
in writing on 16th January 2012. It dismissed claims that she had
been indirectly discriminated against on grounds of race, and had been
victimised after the conclusion of her employment because she had taken
proceedings against the Akwiwus.
3.
This appeal raises a challenge by her employers, Mr. and Mrs. Akwiwu, to
the finding in respect of discrimination; and both a contingent cross-appeal by
the Claimant against the Tribunal’s dismissal of her alternative case that if
not direct the discrimination had been indirect, and a cross-appeal in any
event to its conclusion that she was not victimised against on the ground of having
made an employment tribunal claim which included a complaint of such
discrimination.
4.
The same constitution of this Tribunal has, before giving judgment,
heard argument in the appeal of Taiwo v Olaigbe against a
decision of a Tribunal at South London which held, in very similar
circumstances, that there had not been such discrimination. We had hoped to
hand down the judgments in the two cases on the same date since we understand
that a number of cases (there are some twenty cases handled by the solicitor
for the Appellant alone) wait for their resolution upon the conclusions reached
by this Appeal Tribunal. The argument in each has, however, been heard
separately and considered separately, though many of the principles to which we
shall refer are common to both cases. In the event, this judgment was held back
for further oral argument.
5.
The solicitor for Onu is the same as for Taiwo, so has heard the
argument in each case; and Mr. Dutton who has appeared for the Akwiwus to
advance their appeal is as we understand it aware of the arguments in that case
– we have, moreover, in the course of the argument been able to put to both
advocates any points arising from that, earlier, appeal which merited their
consideration and answer.
The Facts
6.
The Claimant is Nigerian. She had lived in a village there. Whilst in Nigeria she went to work for the Respondents as a domestic worker in Lagos, on 20 February 2007. The
Akwiwus then had one child, but Mrs. Akwiwu was pregnant. Their second child
was born whilst they were in the UK, prematurely. She required ongoing medical
attention here. They applied for a domestic worker visa for the claimant. On
29 July 2008 she came to the UK and began work here. On four or five occasions
she returned with the family to Lagos, and then came back again to London. She last returned on about 25th. April 2010. Whilst in London, her passport was held by the Akwiwus. On 28 June 2010, a day after Mrs Akwiwu had
been angry and threatening toward her, she retrieved her passport, took some of
her possessions, and walked from Hendon to Shepherd’s Bush (having no money for
the trip) to find a Mrs. Bankay, a Jehovah’s witness and former social work
manager who had shown friendship to her. She never thereafter returned to work
for the Akwiwus.
7.
Though the Tribunal was faced with diametrically opposed factual
accounts, neither of which it accepted in full, it accepted much which the
claimant averred. In summary, she worked on average for 84 hours per week,
without weekly rest breaks. She had responsibility (though not the sole responsibility)
for the Akwiwus’ older daughter, and was required to cook, clean, launder and
iron. She had substantial responsibility for the home. On occasion she had to
stay with the younger daughter in hospital. The Respondents took away her
passport into their custody. She was paid just £50 per month during the first
year of her employment in the UK, and £100 per month (in the UK) and N15,000 (in Nigeria) from 2009, rising to £150 and N35,000 from January 2010. She did not
eat with the Respondents socially, though took meals with the children. She
did not have appropriate and separate accommodation: at best she shared a room
with the younger daughter in her cot. She was not registered with a GP.
8.
Generally, she was subject to threats and abuse from the Respondents,
though not to such a level as to deter her from returning from Nigeria to the UK on the 4 or 5 occasions on which she did so during the two years of her employment
here.
9.
Relationships grew sour after the Claimant told the Respondents in
December 2009 that she no longer wished to continue in employment with them: at
this, Mrs. Akwiwu became very angry. Matters came finally to a head in late
June 2010, when the Claimant was verbally abused by Mrs. Akwiwu after a friend
of the latter had phoned to report that her own domestic servant was leaving
her, and suggested that the Claimant had incited her to do so. That led to
such antagonism that the next day (28th. June) the Claimant left.
10. The
victimisation claim related to events over 6 months later. It was said to the
tribunal that Mr. Akwiwu had spoken by telephone to the Claimant’s sister in
Nigeria to say that the Claimant had sued him and that “if she thought things
would end there she was wrong”, and that “the Claimant would suffer for it”; then
(only shortly after) he phoned again to the effect that there would be no
trouble for her or her sister, so she (the sister) should get her (the
Claimant) to stop.
The Tribunal Decision
11. There
were appeals and cross-appeals. On the appeal by the Akwiwus (which was first
in time) the only matters in dispute before us were the applicability of the National
Minimum Wage Regulations, and as to the conclusions reached in respect of
unlawful discrimination and harassment. For the Claimant, the issues were the Tribunal’s
conclusion as to victimisation, and an appeal against the dismissal of the
claim for indirect racial discrimination, contingent upon our conclusions as to
the Akwiwus’ appeal on the question of direct discrimination. We shall set out
the conclusions of the Tribunal only in respect of those matters.
(1) National Minimum Wage
12. The
Akwiwus argued that the Claimant came within the “family exemption” provided
for by Regulation 2 (2) (a) of the National Minimum Wage Regulations. Those
Regulations provide so far as material:
“(2) In these Regulations “work” does not include work
(of whatever description) relating to the employer’s family household done by a
worker where the conditions in sub-paragraphs (a) or (b) are satisfied.
(a) The conditions to be satisfied under this
sub-paragraph are –
(i) that the worker resides in the family home of the
employer for whom he works;
(ii) the worker is not a member of that family but is
treated as such, in particular as regards to the provision of accommodation and
meals and the sharing of tasks and leisure activities;
(iii) that the worker is neither liable to any
deduction, nor to make any payment to the employer, or any other person, in
respect of the provision of the living accommodation or meals; and
(iv) that had the work been done by a member of the
employer’s family, it would not be treated as being performed under a worker’s
contract or as being work because the conditions in sub-paragraph (b) would be
satisfied.
(b) The conditions to be satisfied under this
sub-paragraph are –
(i) that the worker is a member of the employer’s
family
(ii) that the worker resides in the family home of the
employer
(iii) the worker shares in the tasks and
activities of the family,
and that the work is done in that context.”
13. The Tribunal found that
the conditions in regulations 2(2)(a)(i), (iii) and (iv) were satisfied.
However, it concluded that the claimant was not treated as if a member of the
family, as provided for by Regulation 2(2)(a)(ii). That was because (paragraph
130) she did not share meals with the family in a way that was likely to be the
case had she been a member of the family. Nor was there the more equal sharing
of the household tasks which there would have been had she been treated as a
member of the family. At paragraph 131 it took into account the threats, abuse
and retention of the passport: all ways in which a member of the family would
not have been treated.
(2) Direct Discrimination
14. The Claimant had relied
upon the decision in Mehmet v Aduma (the decision of the Appeal
Tribunal presided over by HHJ Reid QC, of 30th May 2007). At
paragraph 119 the Tribunal said this:
“In the Tribunal’s judgment, so far as ascertaining
whether the Claimant was treated less favourably in the respects alleged as
compared to a hypothetical comparator, the approach of the Employment Appeal
Tribunal in Mehmet must be followed as correct. It was not suggested
here that Mr and Mrs Akwiwu had antagonism specifically towards the Claimant
because she was Nigerian but that, because she was Nigerian, they treated her
as a migrant worker and as she was a migrant worker in subjecting her to the
detriment we have found the Respondents treated her less favourably than they
would have treated someone who was not a migrant worker. Accordingly, that was
treatment which could, according to the principles in Igen v Wong [2005] IRLR 258 and Madrassy v Nomura International plc [2007] IRLR 246 be
treatment on racial grounds and requires from the Respondents a non-discriminatory
explanation.”
15. Accordingly,
thus far the Tribunal had regarded itself as bound to hold that the burden of
proof had shifted, because it felt bound to regard Mehmet as
correct.
16. The
Tribunal went on at paragraph 120 to reject the explanation for the
disadvantageous treatment given by the Respondents:
“… that this was a Nigerian contract performed in
accordance with Nigerian law and that the Claimant was paid more than the
national minimum wage in Nigeria and that there was no intention to
discriminate by the Respondents who did not contemplate that what they were
doing was unlawful in Nigeria even if that were the case”
17. The
Tribunal concluded (paragraph 121):
“In the Tribunal’s judgment this explanation, even if
it were made out on its facts, could not possibly discharge the burden of
truth. The questions are: What was the reason for the treatment? Was it in no
way whatsoever on the grounds of race? In the circumstances the employers in
this case have fallen far short of proving that the treatment was in no way on
the grounds of race. The reality is that they treated the Claimant precisely
in the way in which they did because of her status as a migrant worker which
was clearly linked to the Claimant’s race. The burden of proof having passed
under Section 54A the Respondents failed to demonstrate any reason for the
treatment that was in no way associated with race. In those circumstances the
Claimant’s case of direct race discrimination in those respects was made out
and it was treatment which continued throughout the entirety of her employment
with the Respondents in the United Kingdom.”
(3) Indirect Discrimination
18. This
was raised as an alternative: since it was to be pursued only if the claim of
direct discrimination failed no separate adjudication was made upon it and it
was dismissed.
(4) Harrassment
19. The
decision on harassment was expressly based on “the same reasoning as before”
(paragraph 124). It therefore depended critically upon the findings made in
respect of direct discrimination and must stand or fall together with that.
(5) Victimisation
20. The Tribunal’s reasoning is
contained at paragraph 134:
“Turning to the allegations made in the second
complaint of victimisation… the Tribunal found that this was not made out. The
reason for that lies in the imprecision in (the Claimant’s sister’s evidence).
Taking the evidence of the Claimant at its highest, that suggests that it was
the commencement of proceedings that caused the first Respondent to issue the
threats in the first telephone call. However, those proceedings were not
solely proceedings about discrimination related matters. They were
proceedings, as we have found, about a number of other claims as well. In the
absence of any specific reference to race discrimination matters in the
telephone calls, and on the evidence of (the Claimant’s sister) taken at its
highest, there was no such reference, the Claimant has not established that the
reason for the threats was because she had commenced proceedings for breach of
the Race Relations Act 1976. In those circumstances that claim cannot be
upheld.”
The Appeal
(1) National Minimum Wage
21. Mr
Dutton argued that Regulation 2(2)(a)(ii) when using the words “is treated as
such” referred merely to an entitlement to use basic household facilities without
charge and an obligation to carry out domestic chores. It could not mean that
the employers treated the domestic worker with love or affection equivalent to
that which they would show to a member of the family. The underlying
relationship was one of domestic worker and employer: being treated like a
member of the family for the purposes of the Regulation would not require
proof, for instance, that the employer provided for the schooling of the
employee, presents on birthdays or religious festivals, was leaving her an
inheritance and the like.
22. Since
the decision of the Employment Tribunal there had been appellate guidance. The
Employment Appeal Tribunal had decided the case of Julio v Jose and
Others [2012] IRLR 180, and the Court of Appeal had determined Nambalat
v Chamsi-Pasha [2012] EWCA Civ 1249: the latter was a determination of the
appeals of two of the Claimants whose cases had been considered in the Julio
decision.
23. Since
Nambalat is the higher authority, we shall concentrate on that.
24. Ms
Nambalat and Ms Udin were foreign live-in domestic workers employed in the
Respondents’ households. In the case of Nambalat, the Appeal Tribunal upheld a
decision that her work fell within the exemption in Regulation 2, because she
had been treated as a member of the family; in the case of Udin, which had
initially come before a different Tribunal, an opposite result had been
reached: that Tribunal had applied the exemption from the National Minimum Wage
for which Regulation 2(2)(a) provides. In that case, the Appeal Tribunal had upheld
an appeal.
25. The decisions,
but not the entirety of the reasoning, of the Appeal Tribunal were upheld by
the Court of Appeal. The central statements of principle appear in the
judgment of Pill LJ with which Black LJ and Bean J agreed. At paragraph 36, he
said:
“As the EAT stated the test requires an overall
approach to family membership, accommodation being only one of several relevant
factors. How accommodation is allocated is likely to throw light on the
general issue.
37. The test is whether, in the provision and
allocation of accommodation, the worker was treated as a member of the family
and not whether a particular standard of accommodation was provided. The
majority of the Tribunal erred in law, in my view in requiring that the
accommodation provided for the worker was of a particular standard. To
consider how an actual daughter in her late thirties would have been treated
was entirely speculative…”
26. Under
the heading “General Considerations” he turned to consider the requirements of
Regulation 2(2)(a)(ii) and said:
“For condition (a)(ii) to be satisfied, the worker
must be treated as a member of the family. That is the central requirement.
The condition requires that, when considering whether the worker is treated as
a member of the family, particular regard must be had to “the provision of
accommodation and meals and the sharing of tasks and leisure activities”. In
these cases… the issue is whether the “sharing of tasks” was compatible with
the Appellants being treated as a member of the relevant family.
41. I cannot accept the extreme propositions put by
either side. I do not accept the submission that Ms Azib (Counsel for the
Respondent) put forward that because a wife in demanding employment may be the
wife in most need of domestic help, the requirements of the Regulation should
be construed so as to achieve an exemption. I do not consider that the use of
the word “task” in sub-paragraph (a)(ii) as distinct from the word “work”, with
which Regulation 2(2) begins, has the significance for which the Respondent contends.
Regulation 2(2) is concerned with whether types of work are excluded from the
“work” contemplated by the Regulations. The word “tasks” is a word commonly
used to describe domestic duties in the “family household”. Its use does not,
in my judgment, lead to the conclusion that the sub-paragraph can be concerned
only with chores within the home, undertaken by family members, which fall
outside the scope of the paid duties of the worker. An overall view is
required and a judgment made as to whether the worker is treated as a member of
the family.
42. Nor do I accept, on the other hand, that there
must be a broad equivalence of the work done in the house as between the worker
and family members. A person receiving free accommodation and meals may be
expected to perform more household duties for the family than other family
members. What matters is whether the work is done in the context in which the worker
is treated as a member of the family. The way in which household tasks are
shared is, as the Regulation recognises, an important indicator of whether the
worker is treated as a member of the family. The way in which accommodation is
allocated, meals taken and leisure activities organised are other indicators.
It is for the Tribunal to decide whether, on the evidence, it is established
that the worker is being treated as a member of the family and not as a
domestic servant.”
27. In
examining whether the Employment Tribunal was in error of law in the
application of that approach, Pill LJ said materially, at paragraph 47:-
“As already stated, it is the lawfulness of the
decisions of the Employment Tribunals which need to be considered. However,
the EAT’s approach at paragraph 46… was appropriate as was the statement at
paragraph 45 that “the issue is whether the worker is integrated into the
family”. If, however, in the last sentence of paragraph 45 the EAT was
expressing the view that, in assessing whether a worker is treated as a member
of the family, the extent of the work done by the worker under the contract of
employment can be ignored when making the required overall assessment, I
respectfully disagree. There comes a point where the demands upon the worker
are so onerous and extensive as to be inconsistent with the worker being
treated as a member of the family. It cannot be argued that condition (a)(ii)
be satisfied upon the ground that such few tasks that are left outside the
employment are shared between members of the family. That would be an abuse of
the NMW exemption. …
48. In each case it is for the Employment Tribunal to
assess, having regard in particular to the factors stated in (a)(ii) whether
the worker is treated as a member of the family. The Tribunal must keep in
mind that it is for the employer to establish that the conditions in Reg 2(2)
are satisfied and that onerous duties may be inconsistent with treatment as a
member of the family. Tribunals will need to be astute when assessing when an
exemption designed for the mutual benefit of employer and worker is, or is not,
being used as a device for obtaining cheap domestic labour.”
28. Mr
Dutton complains that the view expressed in paragraph 47 of Pill LJ’s judgment
should not be taken to overrule the principle expressed in the last sentence of
paragraph 45 of the Appeal Tribunal judgment, with which Pill LJ expressly disagreed.
The proposition set out there was “What work the worker does under his or her
contract of employment is not relevant for the purposes of considering whether
the (Regulation 2(2)(a)(ii)) condition is satisfied”.
29. We
accept that the expression of the view by the Court of Appeal was not necessary
for its decision, which was that the Appeal Tribunal had come to the right
result, even if it did not entirely agree with the reasoning. Accordingly,
strictly viewed, what was said was obiter. However, we reject the submission
that the sentence we have set out from paragraph 45 of the Appeal Tribunal’s
decision in Julio should be applied as Mr Dutton would argue in
the present case. We do so for three reasons. First, the sentence must be
seen in context, and not taken in isolation as Mr Dutton’s argument seeks to
do. In context, paragraph 45 is a rejection of arguments being made to the
Appeal Tribunal by counsel for the domestic worker. He had been arguing that
in deciding what tasks were shared, the work which the Claimant was employed to
do should have been taken into account. Mr Dutton seeks to extrapolate from
this that if the work which a worker is contracted to do is irrelevant then it
must follow that her hours of work are also irrelevant, and that what is
relevant are the tasks performed by the family as a family unit. We do not
accept that this follows from the rejection, seen in context, which the single
sentence represents. Secondly, if we are wrong on that, we would conclude,
this time as a matter of ratio, that the obiter view strongly expressed by the
Court of Appeal is plainly right. We do not accept that the expression of view
by the Employment Appeal Tribunal is correct. We prefer to and do follow the
views of the Court of Appeal.
30. Thirdly,
the test the Court of Appeal was expressing as ratio is whether the worker
concerned is integrated into the family. We take that, together with the other
paragraphs we have set out, as being the guidance which should be followed in a
case such as this.
31. Mr
Dutton argued that the Tribunal should have made findings as to the habits of
the family in question. It looked for equivalence of treatment between the
Claimant, and the family, where this was an error: see Nambalat
at paragraph 42. The finding that the Claimant did not eat socially with the
family was unsound, since at paragraph 82 it had recognised that the kitchen
was not big enough for the whole family to eat in it. Accordingly, either a
member of the family or the Claimant would have to eat with the children, since
they necessarily had to eat separately. No findings were made as to the nature
of the social activities. Although the Tribunal was required, as it
acknowledged in paragraph 129, to consider the provision of accommodation,
meals the sharing of tasks and leisure activities, it made no sufficiently
detailed findings.
32. We
reject those criticisms. A Tribunal does not have to set out each and every
fact upon which it relies. As Pill LJ observed, what matters is the overall
assessment which a Tribunal has to make. Although it did not have the
advantage of the consideration given first by Julio and then by Nambalat,
there can be no criticism here of the test which the Tribunal applied. It looked
to see whether the Claimant was treated as a member of the family. It decided
she was not. The reason why it decided as it did related to accommodation, to
the sharing of meals, or rather, the taking of meals apart from the adults in
the family, and matters such as the employers’ threats and abuse toward her and
their retention of her passport which clearly demonstrated to it (and to us)
that the Claimant was not treated as if a member of the family. None of those
matters relied impermissibly upon the Claimant having to do the work she was
contracted to do as a domestic worker. Adopting the approach which the Appeal
Tribunal adopted in Julio, at paragraph 45, affirmed by the Court
of Appeal per Pill LJ, the answer which the Tribunal clearly gave to the
central factual question – was the Claimant integrated into the family unit? – was
no. This was a finding of fact. It was not perverse. It must stand, and the
appeal on this ground be dismissed.
(2) Direct Race Discrimination and (4) Harassment
33. Mr
Dutton submitted that in Amesty International v Ahmed [2009] ICR 1450, the Appeal Tribunal (Underhill P presiding) drew a distinction between cases
of direct discrimination where discrimination was inherent in the act itself
(which it termed “criterion” cases) and those where it was not, but where the
act was rendered discriminatory (whether consciously or subconsciously) by the mental
processes of the discriminator. The latter involved seeking the reason why a
person was treated less favourably than others in a comparable situation. The
distinction emerged not only from that case but from R (E) v Governing
Body of JFS [2009] UKSC 15. What has to be shown in a “reason for”
case is that the less favourable treatment was on racial grounds, not that it
was racially motivated. As Mr Dutton put it: “it is relevant why the Claimant
was treated less favourably (that must be on racial grounds) but irrelevant why
the Claimant was treated less favourably on racial grounds”. In other words
the reason for the act is critical: not the motive for it. Thirdly, he
contended that the mere fact that race played some part, even a major one, in
the events leading up to the act complained of did not of itself mean that any
less favourable treatment was on racial grounds. In Martin v Lancehawk
Ltd [2004] All ER (D) 400 the Employment Appeal Tribunal presided over
by Rimer J considered a case in which a male manger had dismissed a female
employee because their affair had broken down. If she had not been female, the
dismissal would not have occurred. But for her gender, she would not have been
dismissed. Nonetheless, gender was not the reason for the dismissal. The breakdown
of the relationship was. At paragraph 12, the Appeal Tribunal said this: -
“It seemed to us that the critical issue… was whether
(the male manager) dismissed Mrs Martin “on the ground of her sex”, an issue
requiring a consideration of why he dismissed her. As we have said, we
interpret the Tribunal as having found that the dismissal was because of the
breakdown of the relationship. That, therefore, was the reason for the
dismissal not because she was a woman. We accept that, but for her sex there
would have been no affair in the first place. It could, however, equally be
said that there would have been no such affair “but for” the facts (for
example) that she was her parents’ daughter, or that she had taken up the
employment at Lancehawk. But it did not appear to us to follow that reasons
such as those could fairly be regarded as providing the reason for her
dismissal.”
Thus, he argued, the proper enquiry was into the real or, as it
had been put in Seide v Gillette Industries Ltd [1980] IRLR 427,
per Slynn J for the Appeal Tribunal, the “activating” cause of the detrimental
treatment. Here, the cause of the mistreatment of the Claimant was not that
she was a migrant worker, nor that she required a migrant worker visa, nor was
it that she was Nigerian. The need to possess a visa was part of the
background circumstances, but, as in Lancehawk, was just that: a
background circumstance, and not the reason for the discrimination. The
present matter was, he emphasised, not a “criterion” case, but a “reason for”
case.
34. The
fact that the Tribunal had found that possession of a migrant worker visa was
clearly linked to the treatment which the Claimant received acknowledged that
national origin played some part in the events which led up to the acts alleged
to be discrimination. There was, however, no material immediacy linking that
with the acts complained of.
35. He
submitted that Mehmet v Aduma was wrongly decided: in that case,
the Claimant’s race might have given the opportunity for what happened; it was
something that played some part in the chain of events which led to the
result. It was part of the background circumstances, not an activating cause
of the treatment of which complaint was made.
36. The
harassment claim, Mr Dutton contended, fell by the same reasoning, since it had
expressly adopted that same reasoning.
37. Mr
Robottom submitted that the present case was indeed a “criterion” case; that Mehmet
v Aduma should be followed; that the individual acts or detriments
directed towards the Claimant were inherently discriminatory since an English
or non-migrant worker comparator would simply not have been subject to the same
treatment. Thus the Claimant’s national origin was the reason for her
treatment. He expressly disavowed any submission that the mental processes of
the Akwiwus were such that they harboured racist thoughts towards the Claimant
– “that would have been absurd given their shared ethnicity and nationality”.
38. If,
in the alternative, we were to find that this case was a “mental processes” or
“reason for” case it was irrelevant that there was no racially discriminatory
motive – he reminded us that at paragraph 34 of the judgment in Ahmed v
Amnesty International the Appeal Tribunal had recognised that even in a
‘mental processes’ case
“It is important to bear in mind that the subject of
the enquiry is the ground of, or reason for, the putative discriminator’s
action not his motive.”
39. He
recognised, too, that the harassment claim stood or fell by the same logic: it
depended, as did the claim of direct discrimination upon whether there were
racial grounds for the treatment.
Discussion
40. As
will be apparent from our reasoning in the Taiwo case, we accept
Mr Dutton’s arguments.
41. Here,
the Tribunal did not come to any conclusion in fact as to what was the reason
for the treatment and that it was on racial grounds. Rather, it applied the
case of Mehmet v Aduma in order to determine that the burden of
proof should pass to the Akwiwus. Since it did not accept the explanation then
put forward, it held that racial discrimination was made out.
42. As
to Mehmet v Aduma, Mr Aduma was a student, employed as a night
manager at his employer’s hotel. The employer arranged his affairs so as to
avoid paying tax where possible, and arranged the terms of the Claimant’s
employment to avoid the need to pay him the minimum wage. The allegation that
Mr Aduma had been discriminated against on ground of his race by being employed
at less than the national minimum wage was held established. The critical
reasoning for this was set out at paragraph 9 of the Appeal Tribunal’s
judgment:
“…there was no discrimination on the ground of the
employee’s Nigerian race as such. But … it was quite clear that the employer
employed the employee ‘because, as a Nigerian student he was vulnerable and
could be treated less well because of his inferior employment situation, only
having limited rights to be employed’… the relevance of the employee’s race was
that he came from a country (Nigeria) which did not have automatic rights to
work in the United Kingdom and so could be less favourably treated with
impunity. It was not because the employer had any antagonism to people from Nigeria, but because of the opportunity which the employee’s race gave him to avoid
employment legislation. … The Tribunal accordingly found that this situation
‘could’ constitute discrimination. In accordance with Section 54A of the Act
(Shifting of the Burden of Proof) the Tribunal went on to consider and reject
the explanation offered by the employer that the employee was a trainee and
should therefore be paid a lower sum of money until he had acquired appropriate
skills. It accordingly found the Claimant was discriminated against in the
terms of the employment offered to him.”
Building upon its finding of discrimination on those grounds the
Tribunal also found acts of discrimination in persuading Mr Aduma not to apply
for a National Insurance number and in dismissing him.
43. The
Appeal Tribunal’s conclusion was reached expressly upon the particular facts of
the case. The case had nothing to do with the employee’s immigration status –
stripped to its essentials, it was that a Nigerian was paid less than the
minimum wage in circumstances in which the Tribunal assumed that, although he
had not complied with the law in respect of the Claimant, there was no evidence
to suggest that the employer would do anything other than abide by his legal
obligations in respect of any other employee of whatever other race. Thus a
British or British-based person would not have been underpaid though the
Claimant, a Nigerian, was. The second string to the Tribunal’s reasoning had
been that less favourable treatment was demonstrated by considering the way in
which a British person hypothetically would have been treated. There was thus
less favourable treatment, and a difference in race. That appears to have been
sufficient for it to regard the burden of truth as having shifted to the
employer. Since, the burden having shifted, the employer did not
satisfactorily explain why the Claimant was less favourably treated, the
Tribunal found there had been discrimination, and the Appeal Tribunal held it
was entitled to do so.
44. It
is plain from the judgment that the Appeal Tribunal was not taken to Madarassy
v Nomura [2007] ICR 867, which was decided some two months before the
appeal hearing. This made it crystal clear that in applying Igen v Wong
(which was referred to):
‘the bare facts of a difference in
status and a difference in treatment only indicate a possibility of
discrimination. They are not without more sufficient material from which a
Tribunal ‘could conclude’ that, on the balance of probabilities, the Respondent
had committed an unlawful act of discrimination’ (paragraph 56 per Mummery
LJ).
So as far as disclosed by the Appeal Tribunal’s judgment,
therefore, the first instance Tribunal in Mehmet v Aduma should
not have regarded the onus of proof as shifting to the employer. The
conclusion of the Appeal Tribunal, which was that the Employment Tribunal had
reached a conclusion as to race discrimination to which it was entitled to
come, must therefore be regarded as flawed. It was reached per incuriam. It
did not apply the Igen and Madarassy approach
correctly.
45. Further
and separately given that the factual circumstances relied on in the Tribunal
in that case were not specifically linked to the particular immigration status
of the Claimant, it is of no direct assistance to a case in which it is argued
that exploitation occurs because of the victim’s need to have a visa which is
controlled by his employer and that such visa status is effectively part and
parcel of the nationality of the Claimant.
46. In
short Mehmet v Aduma stood for no principle which the Tribunal
whose decision is appealed to us was relevantly bound to follow. It was wrong
to consider itself bound by that decision, though since it was Employment
Appeal authority we can understand why it did. Free of that authority, the
question was simply whether the burden of proof should have passed. Here it
was accepted that there was no obvious reason why Nigerians should have
discriminated against a Nigerian because she was of that nationality. No
comparator was identified, since the submission was simply that this was a “criterion”
case: the fact she was a migrant domestic worker proved it. The central
sentence in paragraph 119 of its decision is:
“It was not suggested here that Mr and Mrs Akwiwu had
antagonism specifically towards the Claimant because she was Nigerian but that,
because she was Nigerian, they treated her as a migrant worker and as she was a
migrant worker in subjecting her to the detriment we have found the Respondents
treated her less favourably than they would have treated someone who was not a
migrant worker”
That passage is not easy to follow. The cause of the treatment
is said to be linked to her migrant worker status, but it is not clearly stated
that she was treated as she was “because of” her migrant worker status – it is
making the rather more general point that migrant workers are more likely to be
exploited by payment of low wages than are indigenous workers. The finding
(literally) was that the Akwiwus treated her as a migrant worker because she
was Nigerian: but that in itself would create no disadvantage compared with
those who were not migrant workers. More would be needed. So the Tribunal held
that the race of the claimant was a cause of something which in itself was not
disadvantageous, but which was a stepping-stone on the way to something which
was. The Tribunal, given its reference to Madarassy and Igen
v Wong, did not approach this as a criterion case. It had arguably
found a difference in race (migrant, as compared with non-migrant), and less
favourable treatment of the migrant compared with the non-migrant. In
accordance with paragraph 56 of Madarassy this gave rise to the
possibility of discrimination, but without more a Tribunal could not say that
there had been. Accordingly, the burden of proof should not have passed on
this basis.
47. Whether,
therefore, read as a whole the Tribunal were relying on Mehmet (as
we think is the better reading of it) or whether it was considering the
shifting of the burden of proof in reliance purely on Igen v Wong
and Madarassy it erred. The decision is not rescued evidentially
by the inadequacy of the explanation actually proffered, since that amounted to
no more than a denial of discrimination.
48. The
Tribunal thus committed an error of law material to its decision. The question
on this appeal thus became whether in any event it was plainly and obviously
right in the result. For essentially the same reasons we expressed in respect
of the Taiwo appeal, we have concluded it was not. In summary: what
was complained of consisted of treatment falling short of appropriate UK standards. No part of the treatment itself was inherently bound up with the race of the
victim. It was, however, strongly associated with the subordinate position of
the Claimant and the relative economic benefits of her work in the UK compared with the poverty of her situation in a Nigerian village. Thus we can understand
why the Tribunal did not conclude that the race of the Claimant had anything
directly to do with the treatment, and why it could only reach the conclusion
it did by its passing of the burden of proof. In saying, as the Tribunal did,
that:
“The reality is that they treated the Claimant
precisely in the way in which they did because of her status as a migrant
worker which was clearly linked to the Claimant’s race”
it was identifying migrant worker
status as a background factor rather than immediate cause of the
discrimination. Close association, described by the word “linked”, falls short
of cause and effect. It might indicate the possibility of a claim for indirect
discrimination, if it could be shown that those in the group (migrant workers)
were disadvantaged by the application of a PCP which applied both to it and to
the comparison group (non-migrant workers), but it is an insufficient basis for
a finding of discrimination on either a “reasons for” or a “criterion” basis.
49. What
we said about vulnerability in the Taiwo decision applies here:
although the Tribunal here did not use the word to describe the claimant’s
relationship to the Akwiwus, the factual findings are to broadly the same
effect, and in his skeleton argument Mr. Robottom himself argues that “the
labour of migrant workers is being exploited due to their vulnerable position
in the UK”. This claimant had similarly poor socio-economic background circumstances
to those of Ms. Taiwo; had no developed support network; had, no doubt for a
combination of educational and financial reasons and because of the imbalance
of power in the relationship between the Respondents and the Claimant, come
repeatedly to the UK and ceded control of her passport (upon which she would
depend for alternative work) to her employers. If therefore, she was treated
as she was because of these factors, the fact that she was subject to
immigration control (as no British national would be) would be a background
circumstance, contributing to her vulnerability, but not a reason in itself for
the treatment - except on a theoretical philosophical basis which would bear
little relationship to the reasons for applying a rule of causation which
determines liability in a statutory tort. To argue that without having a visa,
she would not be lawfully in the UK, and would not therefore have been subject
to exploitation here, such that the one is the cause of the other, is no
different in principle from arguing that the cause of a dismissal after the
breakdown of a sexual relationship between employer and employee is the sex of
the employee: but Martin v Lancehawk demonstrates the error in
such reasoning.
50. The
features which enabled exploitation are not indissociably linked with migrant
status. The fact that migrant status was one of the matters which contributed
to the ability of the Akwiwus to mistreat the Claimant, since it gave the
employers another advantage over her which they could exploit, but that were
other factors too, renders it that which Lord Hope would (per Patmalniece)
describe as a composite: by comparison with others who suffered
difficulties with education, income, and possibly language. Those like the
claimant were more likely to be put at a disadvantage because they had the
added disadvantage that their immigration status might also be manipulated to
secure their compliance with inferior terms and conditions of employment.
Formal equality of treatment rather than substantive equality of result is what
is being contended for under this ground of appeal: yet it is the latter to
which, if anything, the disadvantages which immigration status created for the
claimant relate: a matter we shall discuss further below, when we discuss
indirect discrimination.
51. There
was no separate consideration of harassment. That claim therefore fails.
(3) Indirect Discrimination
52. The
Tribunal did not resolve this. The contingent cross-appeal thus falls to be
considered.
53. Section
19 of the Equality Act 2010 defines indirect discrimination as, so far
as material as follows:
“(1) A person (A) discriminates against another (B)
if (A) applies to (B) a provision, criterion or practice which is
discriminatory in relation to a relevant protected characteristic of (B)’s
(2) For the purposes of subsection (1), a provision,
criterion or practice is discriminatory in relation to a relevant protected
characteristic of (B)’s if –
(a) (A) applies, or would apply, it to persons with
whom (B) does not share the characteristic
(b) it puts, or would put persons with whom (B)
shares the characteristic at a particular disadvantage when compared with
person with whom (B) does not share it,
(c) it puts, or would, (B) at that disadvantage, and
(d) (A) cannot show it to be a proportionate means of
achieving a legitimate aim.”
.
54. The
way in which the claim had been put in the ET1 was to assert that the PCP was
the “mistreatment of migrant domestic workers”. Mr. Dutton argued that this
could not be a PCP.
Nor could any other PCP which might apply readily be identified.
55. We
cannot accept such a PCP as contended for. The reason is that the definition
of this PCP inevitably answers the question to be posed: it is entirely
circular. Where the issue is whether mistreatment has been caused to a person
because of the application of a PCP, it is pointless to argue that the PCP is
“mistreating” the person. Equally, the PCP will only apply to those who are
migrant workers: it is not on the face of it a neutral criterion which
disadvantages some of those to whom it applies disproportionately when compared
to others to whom it also applies. There is no room for one racial group to
whom the PCP applies to be disproportionately adversely affected compared to
another racial group, for the very definition states that each is mistreated.
It commits the error of assuming that because treatment is obnoxious it is also
discriminatory.
56. Since
no other PCP was contended for, it would not be right to remit this case to the
Tribunal to determine whether it should permit an amendment to the claim, long
after the date for filing a claim had passed. The claim as advanced was
untenable. No other claim was made.
57. Since
other cases may turn on the conclusions in this, we should make it clear that
this is not to say, however, that depending on the findings of fact a PCP might
well have been identified which inevitably would have a disproportionate
adverse effect on those of one racial group. This would be consistent with
evidence such as that apparently given in this case in an answer to
cross-examination, to the effect that an English person would not be treated as
was the claimant in that case. This evidence must be treated with reserve as
evidence of fact, since on analysis it is almost certainly a statement of
opinion or impression, and probably amounts to comment given in answer to a
question inviting it, the question being dressed up as though it were a
legitimate enquiry into fact: but nonetheless it is at least indicative of an
understanding that although exploitation of the vulnerable may occur amongst
those who are British it is likely to be easier to exploit the vulnerabilities
of those who are not British. We suspect that it is not beyond the wit of a
lawyer to identify a PCP which may factually have been applied, applicable to
all, but disadvantaging some, and amongst those it disadvantaged, in particular
the domestic migrant worker in question.
(5) Victimisation
58. The
Claimant argued that the Tribunal had erred in concluding that the
victimisation proceedings could not succeed since they were not solely
proceedings about discrimination matters, and in the telephone calls there was
no specific reference to race discrimination nor to the fact that she had
started proceedings for breach of the Race Relations Act 1976. In order
to bring her claim, the provisions of Section 27 of the Equality Act 2010
had to be satisfied. They provide:-
“27. Victimisation
(1) A person (A) victimises another person (B) if (A)
subjects (B) to a detriment because –
(a) (B) does a protected act or
(b) (A) believes that (B) has done, or may do, a
protected act.
(2) Each of the following is a protected act –
(a) bringing proceedings under this Act;
(b) giving evidence or information in connection
with proceedings under this Act;
(c) doing any other thing for the purposes of or
in connection with this Act;
(d) making an allegation (whether or not
express) that (A) or another person has contravened this Act.”
The Claimant raised, however, the question whether the victimisation
claim could proceed because the relationship had ended. Mr Dutton argued that
this could not be the case. Accordingly, it is necessary to determine this
issue of statutory construction and application first.
59. This
involves difficult questions of construction, which have already troubled
Employment Tribunals, which have reached different decisions on the matter, and
which have in one case (Rowstock Ltd & Davis v Jessemey (5th.
March 2013, UKEAT/0112/12, a decision of Mr. Recorder Luba QC, Mr.Beynon, and
Mr. Yeboah - “Jessemey”) given rise to a decision in the Appeal
Tribunal which the Tribunal recognised had the effect (if it was correct) of
identifying a lacuna in the statutory scheme of protection from discrimination,
harassment and victimisation which the UK is required by EU legislation to
implement.
60. The
central difficulty is that the Equality Act 2010 does not expressly provide
that victimisation of a former employee by her erstwhile employer is
compensable, whereas it does provide specifically that both discrimination and
harassment occurring after termination of the employment relationship are, and
it would seem all too easy for Parliament to have added a similar provision in
respect of victimisation post-dating the termination of an employment to give rise
to a claim if that is what it had intended. Yet that is what European
Directives would require it to do; it is what the House of Lords recognised was
provided by the predecessor statutes (here the Race Relations Act) by its
decision in Rhys-Harper v Relaxion Group [2003] IRLR 484 HL; it
is what the Code of Guidance to the Equality Act asserts the effect of the Act
is; and although the Act is not expressly a consolidating statute, there is no
Parliamentary material which suggests that the legislature considered for one
moment that the effect of what is was doing might be to provide for such a
dramatic shift in the law.
61. This
question involves the interpretation of a statute. Where, as here, the parties
accept that there are European obligations to provide a remedy for
post-termination victimisation to which the law must pay regard, this must be
approached in two stages: first to enquire what the meaning of the statute is,
if construed as a domestic statute, and if that construction would not accord
with the European obligation to ask whether it might be possible nonetheless to
interpret it to do so, even if that might involve writing words into or
omitting them from the legislation.
Domestic Construction, if
approached as a purely domestic statute
62. To
determine the meaning of a statute, regard should be had to its overall scheme.
The scheme of the Equality Act is first to set out “key concepts” in Part 2. This
involves defining each of eight separate protected characteristics as defined separately
in Sections 5 – 12. Chapter 2 within Part 2 is headed “Prohibited Conduct”. “Discrimination”
is defined and dealt with within that chapter. This extends to a duty to make
adjustments in respect of the disabilities of a person. Under the sub-heading
“Other Prohibited Conduct”, therefore distinguishing it from discrimination as
such, the last two Sections of Chapter 2 deal respectively with harassment (Section
26) and victimisation (Section 27), the latter being set out above in its material
terms.
63. Part
2, consistent with the general description of “key concepts”, thus consists of
definitions. It does not render conduct which meets those definitions unlawful.
What makes discrimination, harassment, and victimisation at work unlawful is
provided for by Part 5, headed “Work”. Within that Part, both discrimination
and victimisation (though not harassment) are dealt with in Section 39, under
the heading “Employees and applicants” which provides by Subsections (1) and
(2) for a prohibition on discrimination by an employer, the first in respect of
applicants for employment, the second in respect of those who are employees.
In identical terms, save for the use of the word “victimise” instead of
“discriminate” it goes on to provide:
“(3) An employer (A) must not victimise a person (B) –
(a) in the arrangements A makes for deciding whom
to offer employment
(b) as to the terms on which A offers B
employment;
(c) by not offering B employment
(4) An employer (A) must not victimise an employee of A’s
(B) –
(a) as to B’s terms of employment;
(b) in the way A affords B, or by not affording B
access, to opportunities for promotion, transfer or training or for any other
benefit facility or service;
(c) by dismissing B;
(d) by subjecting B to any other detriment”
64. Section
40 deals with harassment. The occasions on which liability will arise are different
from those described in Subsections 39(1) and (2) for discrimination and (3)
and (4) for victimisation:
“An employer (A) must not, in
relation to employment by A, harass a person (B)-
(a) who is an employee of A’s;
(b) who has applied to A for employment”
65. Part
8 of the Act is entitled “Prohibited Conduct: Ancillary”. It thus is intended plainly
to relate back to the prohibited conduct set out in chapter 2 of part 2, which
was definitional. Section 108, within that Part, is headed “Relationships that
have ended”. It provides so far as is material:
“(1) A person (A) must not discriminate against
another (B) if –
(a) the discrimination arises out of and is
closely connected to a relationship which used to exist between them, and,
(b) conduct of a description constituting the
discrimination would cover if it occurred during the relationship, contravene
this Act.
(2) A person (A) must not harass another another (B)
if –
(a) the harassment arises out of and is closely
connected to a relationship which used to exist between them, and
(b) conduct of a description constituting the
harassment would, if it occurred during the relationship, contravene this
Act.
(3) It does not matter whether the relationship ends
before or after the commencement of this section…
(6) For the purposes of part 9 (Enforcement) a
contravention of this section relates to the Part of this Act that would have
been contravened if the relationship had not ended.
(7) But conduct is not a contravention of this section
insofar as it also amounts to victimisation of B by A.”
66. Under
Part 9, Chapter 3, by Section 120 an Employment Tribunal has jurisdiction to
determine a complaint relating to a contravention of Part 5, and a
contravention of Section 108 that relates to Part 5. Accordingly, a
contravention of Section 108 is one for which there is liability.
67. The
scheme of the Act is thus to treat relationships which have ended in a
dedicated Section.
68. The
argument for the Akwiwus is that a Tribunal only has jurisdiction to consider a
complaint if statute provides a right in respect of that complaint. The
existence of a section dedicated to relationships that have ended, in another
Part of the Act, shows that claims of post-termination discrimination, and
harassment, do not naturally fall within Part 5. It might be thought that Part
5 relates, therefore, only to current or prospective employment.
69. It
follows that unless Section 108 makes provision for victimisation claims to be
pursued after the employment relationship has ended, such claims are outside
the jurisdiction of an employment tribunal: such a tribunal, being entirely a
creature of statute, may consider only those claims which statute provides for
it to consider.
70. Section
108 does not specifically provide that a Tribunal may hear such a claim. It
specifically mentions only “discrimination” and “harassment” as claims which
may be brought after the end of the relationship of employer/employee. It does
not include “victimisation” as such a claim. This argues against the Tribunal
being empowered to do so.
71. At
the conclusion of the initial hearing, we were impressed by the submissions of
Mr. Dutton to the effect that express mention is made of victimisation claims,
only to exclude them from consideration – see Subsection (7). This Subsection
shows that the draftsman had victimisation in mind when he drafted Section
108. That supports the conclusion that its omission from a list of those
matters which might be litigated after the end of the relationship of
employer/employee was deliberate.
72. In
the light of Subsection (7), Mr. Robottom appeared then to accept that if the
Act were to be construed purely as a domestic statute, it made no provision for
a claim of victimisation suffered by a former employee at the hands of her
former employer.
73. We
were troubled by both the exact meaning and purpose of Subsection (7), which
neither submission satisfactorily explained; and by the U-turn which the law
would then have taken to set its face against the UK’s European obligations to
remedy post-termination victimisation without any obvious indication, in any
contemporaneous material of which we were aware, that Parliament considered
that was what it might be doing.
74. Accordingly,
we first invited further submissions in writing as to whether the law
generally, though not necessarily in the Equality Act itself provided a remedy
for conduct which fell within the scope of victimisation (for if it did so,
then it might be easier to regard European obligations as met, albeit not
within the scope of the Equality Act taken on its own). Then, having
considered further the proper interpretation of Subsection (7) (which we
thought might be key), we invited yet further submissions on its proper
construction. The parties asked that they be delivered orally, and we heard
them.
75. The
proper force of Subsection (7) is not entirely easy to discern. What it does
not do is expressly exclude victimisation from being a permissible head of
claim in respect of relationships that have ended. Nor does it include it, as
it does with discrimination and harassment in Subsections (1) and (2).
76. However,
there is no sensible purpose for Subsection 108 (7) if there is no right to sue
for victimisation after the relevant relationship has ended. That is because
there would be no need to include Subsection (7) at all – there being no right
to sue, conduct amounting to contravention of Section 108 would, if it was
victimisation, never give rise to a claim for compensation.
77. By
contrast, Subsection 108 (7) does make sense if the draftsman had assumed that
victimisation occurring post termination could be subject of a claim. In such
a case, the same facts might give rise to a claim of discrimination, or of
harassment, but also a claim of victimisation. Or the compensation sought for
the act of discrimination and/or harassment might include matters which were
compensable under a victimisation claim.
78. If,
in such a situation, there was a complete overlap between that which
constituted harassment, and that which constituted victimisation, then the
effect of Subsection (7) in the absence of any right to sue for victimisation
separately would be to extinguish entirely the claim for harassment. This
would be inconsistent with the purpose of the legislation which is to recognise
that both discrimination and harassment are reprehensible and may require to be
compensated. Yet, in the postulated case, discrimination or harassment or both
would be just as reprehensible, but would cease to compensable because the
actions also amounted to victimisation which would itself attract no
compensation because (so it would be argued) victimisation would give rise post
termination to no claim at all!
79. To
illustrate the point, let us say that a claim for harassment (H) is worth
£30,000 because it relates to three acts, each of which is worth (£10,000). The
effect of Subsection 108 (7) is that if one of those acts is also
an act of victimisation (V), the claim for (H) could only be for £20,000,
because one of the acts which would otherwise have been compensated would be
taken out of consideration altogether. (The Subsection does not
provide that insofar as the act is victimisation it is not a contravention: it
only bites on acts which would otherwise be a contravention). This is
understandable if (V) may itself be separately sued for, for the Subsection
then would inhibit double recovery. However, there seems no good reason why a
claim for (H) should be reduced for something (V) which could not separately
give rise to a claim for compensation, for this would be to reduce compensation
for one wrong because in addition to it further reprehensible conduct had
occurred, yet eliminate any possibility of gaining compensation for some of the
wrong which had been done, and which it was the legislative purpose to
condemn. It would be perverse to hold that the worse the conduct might be
described as being (consisting now of two wrongs – (H) and (V) - arguably being
done, rather than one alone (H)), the less the compensation overall should be.
80. Next,
since what is being considered is conduct in respect of relationships which
have ended, it is difficult to see why that conduct should “also” amount to
victimisation if victimisation were not litigable post termination. The word
“also” is of significance. It indicates that conduct can amount to
victimisation in respect of a relationship which has ended.
81. None
of these consequences would follow if, by contrast, the draftsman assumed that
post termination (V) was provided for elsewhere within the statutes. Then the
effect of Subsection 108 (7) would be to prevent double recovery for one and
the same act – if a person claimed (D) or (H), but also claimed (V) he would
gain no more money to the extent that (D) and (H) overlapped with (V).
82. Mr
Dutton accepted that if the word “also” had the meaning of “as well as”, then
the apparent assumption of the draftsman was that post termination
victimisation was a claim provided for by the statute.
83. As
we have said, this provision is not explicit. However, nor was it explicit
when the House of Lords determined in Rhys-Harper v Relaxion Group
that victimisation under Section 6 Sex Discrimination Act 1975, Section
4 of the Disability Discrimination Act 1995, or Section 4 of the Race
Relations Act 1976 could give rise to a claim if it occurred post
termination. It did so by giving a meaning to the words “employer” and
“employee” which extended to “ex-employer” and “ex-employee”. The terms
“employer” and “employee” appear in Subsection 39 (4) in respect of
victimisation by subjecting the employee “to any other detriment” (39) (D). Since
the draftsman must be taken to have been aware of relevant decisions of the House
of Lords this might afford a route to adopting the same interpretation here,
and regarding that Section as actually providing that post-termination
victimisation could give rise to a claim.
84. Mr
Dutton attacks this approach by arguing, first, that in Subsection 108 (7) the
word “also” should not be understood in the sense of “as well as” but in the
sense of “furthermore”. In that sense, the purpose and force of Subsection 108
(7) might be more clearly expressed if the wording were “Furthermore, conduct
which amounts to victimisation is not a contravention of this Section”. This
would be an interpretation which expressly excludes victimisation from being
compensable post termination.
85. Next,
he points out that if the words “employer”, “employee” and “employment” are to
be understood in respect of one Subsection of Section 39, they must be
understood in the same sense in other Subsections. He argues that if the
draftsmen had thought that those terms (following the decision in Rhys-Harper
v Relaxion Group [2003] IRLR 484 HL,) included ex-employers and
ex-employees, then there would be no need to have any reference in Subsection
108 (1) or (2) which expressly permitted a claim for post termination
discrimination or harassment. Both could be sued for. The fact that they were
mentioned expressly in Section 108 would mean that “employer” and “employee”
did not have that meaning in Subsections 39 (1) and (2), and it would be very
surprising if in Section 40 (harassment) the expressions were used in any
different sense. Accordingly, he submits the proper interpretation is such
that Subsection 108 (7) excludes post termination victimisation from any right
to sue.
86. We
cannot accept Mr Dutton’s submissions as having the effect he proposes. First,
we do not read the word “also” as if it were the word “furthermore” at the
outset of Subsection 7. It is not the more natural reading of the word
“also”. It would give the Subsection no purpose, since on this approach there
would be no basis within the Act for thinking that victimisation after the end
of the relevant relationship could be sued for (save for the interpretation of
“employer” in Section 39 referring only to current or prospective employees)
because Section 108 expressly dealt with those who had been employees. Moreover,
the Subsection would then be one inserted as if for the avoidance of doubt. If
so, it could have been much more clearly and simply put. There would have been
no need for the word “furthermore”, or “also”, nor the words “insofar as”.
Those four words have effect only in respect of claims in relation to
discrimination or harassment, rendering them less a contravention than they
otherwise would have been because there is also victimisation. As we have
indicated, this makes no legislative sense unless the statutory assumption is
that victimisation itself may be compensated.
87. The
argument by reference to Section 39 is one of greater difficulty. However, it
must be addressed by reference to the Act itself. Subsection 83 (2) defines
“employment” as “employment under a contract of employment, contract of
apprenticeship or a contract personally to do any work”. Subsection 83 (4)
provides “a reference to an employer or an employee, or to employing or being
employed, is to be read with Subsection (2)”. Mr Robottom argues that the
principles in Rhys-Harper apply, and determine the scope of these
words. The words “employer” and “employee” were defined similarly under the Disability
Discrimination Act 1995 Section 68. It meant:
“employment under a contract of service or of
apprenticeship or a contract personally to do any work, and related expressions
are to be construed accordingly.”
The definition in Section 78 of the Race Relations Act 1976
was materially identical.
88. What
was considered centrally in Rhys-Harper was not, however, that
definition in itself but the phrases “employed by him” in Subsection 4 (2) of
the Race Relations Act 1976, and “whom he employs” in Subsection 4 (2)
of the Disability Discrimination Act 1995 (see paragraph 89). Since
“related expressions are to be construed accordingly” it is difficult to see
that there is any material difference in meaning between “employed” in the
phrase “employed by him” and “employer”, though it appears to have been argued in
that case that those phrases by introducing the present tense restricted an
otherwise wider meaning to that of current employment. This was the approach
which had been taken in Post Office v Adekeye [1997] ICR 110, CA,
which was overruled in Rhys-Harper. In differing from it, Lord
Nicholls observed that the obligation not to discriminate could not sensibly be
confined to the precise duration of the period of employment under the contract
of employment – in many respects, that relationship gave rise to rights and
expectations outside the duration of such a period, and could be said to be
continuing for that purpose. Thus, he said (at paragraph 37):
“To my mind the natural and proper
interpretation of section 6(2) of the Sex Discrimination Act and the
corresponding provisions in the other two Acts in this context is that once two
persons enter into the relationship of employer and employee, the employee is
intended to be protected against discrimination by the employer in respect of
all the benefits arising from that relationship. The statutory provisions are
concerned with the manner in which the employer conducts himself, vis-à-vis the
employee, with regard to all the benefits arising from his employment, whether
as a matter of strict legal entitlement or not. This being the purpose, it
would make no sense to draw an arbitrary line at the precise moment when the
contract of employment ends, protecting the employee against discrimination in
respect of all benefits up to that point but in respect of none thereafter.”
89. Lord
Hobhouse’s reasoning, as he expressly recognised, substantially accorded with
that of Lord Nicholls (see para. 165). So did that of Lord Rodger (see para.
221).
90. It
is unnecessary, since the majority agreed not only in the result but also in
this essential reasoning, to consider the views of the other two members of the
House. However, for completeness: Lord Scott too in approaching the
construction to be given as matter of domestic law would have given a purposive
interpretation to “employer” so as to comprehend the ex-employer (para. 197), but
(at para. 204) “..save for cases where the relationship between employer and
employee is still continuing notwithstanding the termination of the employment
the conclusions of the Court of appeal in Adekeye were correct and should be
followed….”. Only Lord Hope would have found it necessary in order to resolve
the appeal in favour of the (ex)-employees to appeal to the interpretative
obligations inherent in considering the effect in English law of European
directives.
91. The
current case is all the stronger for the fact that Parliament has eschewed the
phrase which led to the differences of interpretation as between the Court of
Appeal and the House of Lords. No longer do the phrases “employed by him” or
“whom he employs” with their suggestion of the present tense apply. The
legislation thus is all the more open to the interpretation which Lord Nicholls
with the concurrence of Lords Hobhouse and Rodger would have given to it
without recourse to European considerations.
92. As
against this, what is to be made of Mr. Dutton’s point that the fact that if
“employer” and “employee” were to be construed in the sense which appealed to
the House of Lords when considering Section 39 of the Equality Act, the
legislation itself suggests in Section 108 that discrimination and harassment
require special consideration under the heading “Relationships that have ended”?
First, we do not consider that the existence of Section 108 colours the meaning
of “employer” and related expressions in Section 39 so as to limit them to
current employment. Rather, Subsections 108 (1) and (2) have a function in
closely defining the circumstances in which discrimination and harassment must
occur if they are to give rise to a claim where there is no longer a subsisting
employment relationship. Other situations are excluded: it is not enough to
found a claim that one player in the scene in which discrimination is alleged
to have occurred was once the employee of another actor in the scene who was
once the employer. Mr. Robottom submits, with considerable force, that
Parliament here was expressing clearly the limitation which Rhys-Harper
had indicated – the need for a close connection between the act complained of
and the employment relationship which had or did exist – and was specifying the
circumstances in which this would occur more closely. Victimisation is
separately defined. It is perfectly reasonable to assume that Parliament did
not feel it necessary to prescribe more closely the circumstances in which, after
the termination of actual employment, a former employer might victimise a
former employee: after all, all the protected acts referred to in Section 27
are defined by reference to the Equality Act.
93. Further
and separately, we would observe (though tentatively, since we have heard no
argument on this specific point) that the thrust of the reasoning in Rhys-Harper
is that the relationship of employer-employee may continue even if the employee
no longer performs any work under the contract of employment: yet Section 108
is heading “Relationships that have ended”, and it may be moot whether the
Section deals with continuing relationships of the sort referred to in the
House of Lords decision. No definition is given to the head note to the
Section, and the extent to which it may influence construction may be
arguable.
94. We
have to consider, too, that our approach to Subsection 108 (7) ascribes it the
function of avoiding double recovery. Mr. Dutton points out that if one and
the same act constitutes both direct discrimination and harassment any overlap
between them is not restricted. He argues that this is inconsistent with a
general policy aiming to prevent over-compensation; why, he asks, should s.
108(7) not simply provide that to the extent that any of Direct discrimination,
harassment, and victimisation overlap there is no additional claim?
95. This
has given us some hesitation, though the answer may lie in the very different
nature of direct discrimination and harassment as defined in the Equality Act.
If it does leave a lacuna, however, it is far less a gap than would be left
were Mr. Dutton’s interpretation of s.108(7) to be accepted.
96. Accordingly,
applying domestic canons of construction, we reject a construction of Subsection
108 (7) which has the effect that victimisation cannot be sued for where the
employee no longer works for the employer under the contract of employment.
97. We
have been referred to the Equality and Human Rights Commission Code of
Practice on Employment (2011). It has been produced by the Commission
pursuant to its powers under the Equality Act 2006, as a statutory code. It
has been approved by the Secretary of State and laid before Parliament, but
does not impose legal obligations, nor purport to be an authoritative statement
of the law. Mr Robottom made play of the fact that under the heading
“Relationships that have ended” at paragraph 10.62 of this Code, it says: “If
the conduct or treatment which an individual receives after a relationship has
ended amounts to victimisation, this will be covered by the victimisation
provisions (see paragraphs 9.2 – 9.15)”. When one turns to paragraph 9.2, as
instructed, it can be seen to refer to Subsection 27 (1) of the 2010 Act, and says:
“the Act prohibits victimisation.”
98. Whereas
Mr Robottom relies on this Code as supporting the interpretation he advances of
the Act, Mr Dutton rightly observes that Section 27 does not prohibit
victimisation. It defines it. It does not make it unlawful in employment.
That is the purpose of Section 39, not Section 27.
99. We
do not find it necessary to refer to the Code as an interpretative aid, but are
comforted by noting that our conclusion as to the law – that the definition in
Section 39 encompasses victimisation whether employment under the contract of
employment is continuing or whether it has ceased – is prohibited by the Act
and Section 108 does not have any sufficient contrary effect.
100. Nor have we found it
necessary to support our reasoning by reference to the European obligation.
However, this does again strengthen the conclusion we have reached.
101. Mr Robottom argued
that Counsel Directive 2000/43/EC of 29 June 2000, implementing the principle
of equal treatment reads:
“The effective implementation of the principle of
equality requires adequate, judicial protection against victimisation.”
102. Article 9 of the
Directive reads:
“Victimisation
Member States shall introduce into their national
legal systems such measures as are necessary to protect individuals from any
adverse treatment or adverse consequence as a reaction to a complaint or to
proceedings aimed at enforcing compliance with the principle of equal
treatment.”
103. In Coote v Granada Hospitality Ltd (C-185/97) [1999] ICR 100, the judgment of the ECJ reads
(at paragraphs 24 -25):
“The principle of effective judicial control laid down
in Article 6 of the Directive would be deprived of an essential part of its
effectiveness if the protection which it provides did not cover measures which,
as in the main proceedings in this case, an employer might take as a reaction
to legal proceedings brought by an employee with the aim of enforcing
compliance with the principle of equal treatment. Fear of such measures, where
no legal remedy is available against them, might deter workers who considered
themselves the victims of discrimination from pursuing their claims by judicial
process, and would consequently be liable seriously to jeopardise the
implementation of the aim pursued by the Directive.
In those circumstances it is not possible to accept
the United Kingdom Government’s argument that measures taken by an employer
against an employee as a reaction to legal proceedings brought to enforce
compliance with the principle of equal treatment do not fall within
the scope of the Directive if they are taken after the employment relationship
has ended.”
104. The arguments are
well set out in the decision of the Appeal Tribunal presided over by Mr
Recorder Luba QC, of Rowstock Ltd v Jessemey (5th
March 2013): see, in particular, paragraphs 18, 28 for an acceptance that a
“strict interpretation” of Subsection 108 (7) would mean that the UK Government
was in breach of relevant EU directives, which, coupled with the proposition often
named after Marleasing SA v La Comercial
Internacional de Alimentacion SA. [1990] EUECJ C-106/89, and recognised in Litster v Forth
Dry Dock and Engineering Co. [1990] 1 AC 546, and more recent cases
such as Kucukdeveci v Swedex GmbH [2010] IRLR 346, and EBR Attridge
LLP v Coleman [2010] ICR 242 (Underhill P), that the national courts
must strive to do all they can to interpret domestic statutory provisions
intended as anti-discrimination measures in a way compatible with applicable EU
directive, would argue powerfully for an interpretation which provides a remedy
for post-termination victimisation.
105. If, contrary to our
primary view that the Act renders post-termination victimisation actionable, Mr.
Dutton’s arguments that “employer” means the same in Section 39 for both direct
discrimination and victimisation, and must (on his approach to Section 108)
mean “current employer” (since the fact that Section 108 is necessary to
provide for relationships which are ended indicates that, without the Section,
there would be no liability) had sufficient force to cast real doubt on the
correct domestic interpretation of the statute, there would nonetheless be
sufficient ambiguity about the proper meaning of the statute to require resort
to the “Marleasing” approach. We could not conclude, as Ghaidan
v Godin-Mendoza [2004] 2 AC 557 mentions, that to interpret the act as
we do would be contrary to the grain of the legislation. The whole legislation
is designed to prohibit discrimination in many contexts. It regards
victimisation as reprehensible. The grain of the legislation is in favour of the
approach we would support.
106. We therefore have
the misfortune of disagreeing with the views expressed by the Tribunal in Rowstock
Ltd v Jessemey. One of our Members (Mr Beynon) was a party to
that decision. In the light of further submissions and consideration, he has
recanted from the view expressed there: the argument as eventually developed
before us differed from that put before the Appeal tribunal in Jessemey.
However, we recognise that the point is one of difficulty. We should follow
the decision in Jessemey, unless persuaded it was wrong. For
the reasons we have given, we are so persuaded.
107. This does not
dispose of the appeal. The Tribunal dismissed the victimisation claim not
because post-termination victimisation was not actionable, but because on the
facts it was not made out. Its reasoning is contained in paragraph 134, set
out above.
108. Once, submitted
Mr Robottom, it is accepted that the statute prohibits victimisation after the
end of the employment relationship, in compliance with European obligations,
focus can centre on the Tribunal’s reasons here for rejecting the claim. The
Tribunal seemed to look for a sole cause of the action taken against the
claimant, which had to be that she had claimed in respect of discrimination, whereas
case-law (see Owen and Briggs v James [1982] IRLR 502, at
paragraphs 21-22) is to the effect that it suffices if that is of sufficient
weight in what was done. Realistically all the claims here, discriminatory and
otherwise, were bound together in one claim, and it would be artificial to
think that when Mr Akwiwu said the words of which complaint was made to the
Claimant’s sister he had in mind all the claims that Ms Onu was making except
for the discrimination claims. The absence of mention of discrimination during
the ‘phone call did not mean that the ‘phone calls were not motivated by the
fact there had been a discrimination claim. At most, the absence of mention
would be of evidential significance, and not a condition precedent to liability
as the Tribunal appeared to have assumed.
109. Mr Dutton in
response suggests the matter is one of fact, and there must be a sufficient
causal connection between the threat and the protected act for the one to be in
response to the other.
110. A claim for victimisation
is actionable as if a statutory tort. Here, applying the definition in Section
27, the Claimant did a protected act (she brought a claim which included claims
for race discrimination). The statutory question is whether the victimisation
(here, uttering the threat) occurred because she had done so. A realistic
approach must be taken to any situation in which it is said a protected act has
occurred. In a conversation threatening retaliation if an action is not
withdrawn there may be no reference to the subject matter of the claim – the
nature of it must be known to the parties, for there would be no other purpose
in seeking its withdrawal. If the claim includes reference to allegations
under the Equality Act then we do not see it as a precondition for the
threat to be actionable that in the course of making it the perpetrator should
expressly refer to that fact. In context, here, Mr Akwiwu plainly knew of an
action having been brought. Although it covered more than a breach of the Equality
Act, it covered that too. The fact he did not single out the Equality
Act aspect for specific mention when making a threat does not mean that his
action was not taken, at least in part, in response to the bringing of proceedings
under that Act. Unless the suggestion that there has been an allegation by
reference the Act can be discounted as being of such trivial significance, on
the particular facts, as in substance to have amounted to no claim at all, then
any detriment suffered from an act in response to the bringing of the claim is
to be attributed to the bringing of the protected act. The allegation would
have caused or contributed to the act in response. If a Tribunal is
subsequently convinced that other matters, which were not protected acts, were
largely responsible for the detriment, such that absent the protected act the
detriment would in any event have been suffered, then no doubt that might be
reflected in any award of compensation: but it cannot in our view exclude what
has happened from the scope of the victimisation proceedings. In particular,
this being an anti-discrimination statute, a purposive approach should be
taken.
111. We have no hesitation
in rejecting the reasoning in paragraph 134. The fact that the proceedings
were not solely about race discrimination matters did not have the effect that
to threaten retaliation for bringing the proceedings was not an act of
victimisation.
Conclusions
112. We have therefore
come to the following conclusions on the appeal:
i.
The Tribunal was entitled to conclude that the “family worker” exemption
did not apply; the Akwiwus’ appeal on that ground is dismissed.
ii.
The Tribunal erred in law in concluding there was direct discrimination
on the ground of race or national origin.
iii.
The consequence is that unless we are satisfied that the decision to
which the Tribunal came was plainly and obviously right, the conclusion of the
Tribunal that there was discrimination must fall. We are not so satisfied,
since this was not a “criterion” case in which migrant worker status (even if
we accepted that the label discriminates directly on the ground of national
origin) was more than one of the important background circumstances to the
mistreatment which occurred; the case is a “reasons for” case, and there is
insufficient to shift the burden of proof. The judgment is reversed.
iv.
There was no possibility of the PCP which was claimed giving rise to
indirect discrimination;
v.
The victimisation claim was wrongly dismissed. The fact that there was
no express reference to the Race Relations of Equality Acts when uttering
threats in respect of proceedings taken to claim for breaches of those Acts
does not defeat such a claim. We reject the argument that the Equality Act
makes no provision for a Tribunal to have jurisdiction to consider such a claim
since the circumstances were said to arise entirely after the relationship had
ended.
vi.
Accordingly, we reverse the findings of discrimination, and hold that
there was here actionable victimisation. The latter claim will proceed to a
remedies hearing before the Tribunal.
vii.
Save for (vi), we dismiss the appeal and cross-appeal.
Permission to Appeal
Since, as a result of our conclusions, there are now two cases at
EA level which differ as to the proper construction of the Equality Act, we
have no hesitation in granting permission to appeal so that a definitive answer
may be given. Since we are granting permission on that basis, we shall also
grant it so that our conclusions in respect of direct and indirect discrimination
can be argued, too: the Employment Tribunals in the present case and that of Taiwo
came to different legal conclusions on similar facts; we are told a number of
other cases await the result of this appeal and that of Taiwo, and
we consider the points are difficult ones which merit higher consideration.
We had hoped to hand down our decision in both this appeal and
that of Taiwo on the same day. What delayed this judgment was
further argument as to victimisation. Accordingly, we extended time for
appealing in Taiwo until 21 days after this decision was handed
down. The Claimant’s solicitor in that appeal is the same as in this. We
consider that an appeal court would benefit from seeing the two differing first
instance decisions, and therefore grant permission to appeal to the Claimant in
the Taiwo case, too: we recommend to the supervising Court of
appeal judge that the appeals (if both are pursued) be listed to be heard
together.
