Law Report: Employer liable for racism in the workplace

LAW REPORT v 16 January 1997
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The Independent Online
Jones v Tower Boot Co Ltd; Court of Appeal (Lord Justice McCowan, Lord Justice Waite, Lord Justice Potter) 11 December 1996

The question whether an employer was liable under section 32(1) of the Race Relations Act 1976 for acts of discrimination perpetrated by an employee "in the course of his employment" was to be answered by reference to the ordinary meaning of those words rather than to the more stringent requirements of the common law concept of vicarious liability.

The Court of Appeal allowed an appeal by Raymondo Virtue Jones, reversed the decision of the Employment Appeal Tribunal on 13 June 1995, and restored that of an industrial tribunal, awarding Mr Jones pounds 5,000 on his claim against his employers, Tower Boot Co Ltd, under sections 1 and 4 of the Race Relations Act 1976.

Robin Allen QC, John Whitmore and Thomas Kibling (Campaign for Racial Equality, legal department) for Mr Jones; Simon Buckhaven and Philip Gallway- Cooper (Smith Chamberlain, Wellingborough) for the company.

Lord Justice Waite said that in April 1992 Mr Jones, then aged 16, began work at the employers' shoe factory as a last operative. He was of mixed ethnic parentage and was joining a workforce which had not previously employed anyone from an ethnic minority.

From the outset he was subjected by fellow employees to harassment of the gravest kind. He was called by such racially offensive names as "chimp" and "monkey". A notice had been stuck on his back reading "Chipmunks are go". Two employees whipped him on the legs with a piece of welt and threw metal bolts at his head. One of them burnt his arm with a hot screwdriver, and later the same two seized his arm again and tried to put it in a lasting machine, where the burn was caught and started to bleed again.

Unable to endure this treatment, Mr Jones left the job after four weeks. He made a complaint against the employers of racial discrimination, contending that his fellow employees had subjected him to a discriminatory detriment on racial grounds under section 4(2)(c) of the 1976 Act, and that the employers were liable by virtue of section 32(1) because the acts had been done by the employees in the course of their employment.

The employers resisted the claim on the ground, upheld by the appeal tribunal, that the relevant acts were outside the scope of the fellow employees' employment.

The issue was whether, in considering for the purpose of section 32(1) whether any conduct complained of amounted to a "thing done by a person in the course of his employment", an industrial tribunal should reach its decision by reference to (a) the words "course of employment" in the sense in which they were employed in everyday speech, or (b) the principles laid down by case law to establish the vicarious liability of an employer for torts committed by an employee.

Two principles were involved. First, that a statute was to be construed according to its legislative purpose. Second, that words in a statute were to be given their normal meaning according to general use unless the context indicated otherwise.

The general thrust of the 1976 Act was educative, persuasive and, where necessary, coercive. The relief accorded to victims of discrimination went beyond the ordinary remedies of damages and an injunction, introducing provisions with a proactive function, designed as much to eliminate the occasions for discrimination as to compensate its victims or punish its perpetrators.

A purposive construction required section 32 (and the corresponding section 41 of the Sex Discrimination Act 1975) to be given a broad interpretation.

While there was a broad conceptual similarity between an employer's responsibility both in the context of tortious liability in an employment context and in discrimination in the employment field, that similarity was insufficient to justify, on a linguistic construction, the reading of the phrase "course of employment" as subject to the gloss imposed on it in the common law context of vicarious liability.

To read it in such a way would cut across the whole legislative scheme and underlying policy of section 32.

The tribunals were free to interpret the ordinary and readily understandable words "in the course of employment" in the sense in which every layman would understand them, without reference to the law of vicarious liability in tort.

Paul Magrath, Barrister