Under the Race Relations Act 1976 - Case Study Example

Employment Law: Race Relations Act I Employment Issues in the Present Case A. Under the Race Relations Act 1976 (as amended) (1) Racial Discrimination through Harassment The circumstances in the present case evidently fall within the ambit of the Race Relations Act 1976 and the client Andreas Theopopolous stands a good chance of success with his claims at the Employment Tribunal in the light of recent cases decided favourably by the Employment Appeals Tribunal in 2007 which have parallel facts to the present case. His employer, Electric Dreams Limited is liable for racial discrimination through harassment for failing to provide and ensure that the workplace environment is not “intimidating, hostile, degrading, humiliating or offensive” for Mr. Theopopolous. In addition the respondent has failed to abide by the statutory requirements pertinent to employment conduct and employment termination procedures. Originally, discrimination under the RRA 1976 can be committed in three ways: direct discrimination, indirect discrimination and victimisation. The primary distinction among the three is that in direct discrimination it is the respondent which treats the complainant comparatively less than the others by reason of the latter’s racial or ethnic origin, in indirect discrimination, it is the condition or requirement which becomes the tool of discrimination because such condition cannot be complied with by the complainant by reason of his racial or ethnical custom and beliefs, and in victimisation, the discrimination occurs after the complainant has filed a case of discrimination or done any other previous act testifying or informing others of such discriminatory practices by the employer (Race Relations Act 19976). In 2003 however, the RRA 1976 was amended to include another category – harassment – now integrated into the law as Section 3A. The said section states: S3A. Harassment (1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of – (a) violating that other person’s dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him. (2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should be considerably considered as having that same effect (inserted in 2003 amendment). The case of Gravell v London Borough of Bexley, [2007] UKEAT 0587_06_0203 which treats of racial discrimination in employment through harassment finds parallelism in the present case. The case was an appeal for a review of a part of a decision of the lower employment tribunal which struck out two specific allegations of the complainant: first, the policy of the respondent employer not to challenge racist comments, and; second, the failure of the respondent employer to correct the racial harassments made by her co-employer through test messages even though she specifically brought them to its attention. The lower tribunal’s rationale for its decision was that the allegations did not have much chance of success in the light of the obiter dictum made by the House of Lords in the case of Pearce v The Governing Body of Mayfield School [2003] ICR 937 which disapproved of the EAT’s decision in Burton v De Vere Hotels Ltd [1997] ICR I. The De Vere case, which was decided before the 2003 amendment to the RRA 1976, was a direct racial discrimination case brought by two black waitresses against their employer for the racist comments they received from a stand-up comedian of a private party held at the hotel while they were waiting on tables. The EAT decided in their favor and against their employer - the De Vere Hotels Ltd. This decision was questioned by the House of Lords in the subsequent case of Pearce in 2003. In the Pearce case, a lesbian teacher filed for direct discrimination against the school for its failure to take steps to stop the harassment and abuse of students on account of her sexual orientation. The House of Lords did not give her relief on the ground that she was not able to show that the school would have been able to stop or prevent the harassment and abuses even if they had taken steps in that direction. On a parallel note, it declared its disapproval of the EAT’s decision in Burton on the same principle and the fact that there was actually no racial discrimination committed by the employer itself (Gravell v London Borough of Bexley 2007). The EAT, in the Gravell case however, allowed the appeal and ordered the reinstatement of the stricken allegations, and relative to the present case, citing among others: the Burton case was made prior to the 2003 amendment of the RRA 1976 which inserted, in effect, the tort of harassment as section 3A. More significantly, the Tribunal declared that contrary to the finding of the Chairman of the London Borough that the acts of a co-employer of the complainant in sending her racist text messages have no potential racial harassment value, it saw “no insuperable difficulty facing the Claimant in fixing the Respondent with responsibility for an act of harassment by an employee, albeit that such took place outside the ordinary scope of her employment” applying the principle in Jones v Tower Boot Co Ltd [1997] IRLR 168. Moreover, the Tribunal stated that such conduct, if found true, is one which has the effect of “creating an offensive environment for the claimant which is capable of passing the test under s 3A(2)” (Gravell v London Borough of Bexley 2007). The circumstances in the case at hand fall squarely with the Gravell case. Mr. Theopopolous alleges that he had experienced racial harassment several times from his co-workers: from Mrs. Myers, a warehouse operative, who referred to him as “Andreas the Greek”; from the Canteen Manager who implied that it was the Greek custom to throw plates when he accidentally dropped his; on his pay slip which was marked with “Andreas the Greek” and “The Foreigner; from the warehouse operatives talking in the canteen about him being a foreigner, and; again, from Mrs. Myers when she refused to have him sign the petition for repair of the staff’s changing facilities because he was not a “Brit.” As with the Gravell case, Mr. Theopopolous sought ought the help of management to make the harassment stop because he felt intimidated and embarrassed by it. And as with the Gravell case, the manager refused him because they, according to him, were merely made in fun and should be taken as jokes. (2) Liability of Electric Dream Ltd. Under the law, viz., s 32, the employer is liable for the acts of his employees which are done in the course of the latter’s employment, with or without the former’s knowledge. The employer is likewise liable for the acts of his agents acting with his authority, explicit or implied. The only defence that an employer can raise to extricate himself from such liability is to prove that he has taken the necessary steps to ensure that his employee or agent will not do the acts complained of. The client’s employer will not be able to raise this defence considering that he did not take the necessary steps to prevent the employees from subjecting the client from racial harassment even after the client had notified him of the hostile and degrading manner with which he was treated by his co-workers on the ground of his racial origin. The case of Jones v Tower Boot Co Ltd [1997] IRLR 168 is particularly significant to this case to determine the implication of the phrase “in the course of employment” and qualify the acts of the client’s co-worker as well as attach liability to the Electric Dreams Ltd. In that case, a worker was subjected to physical and verbal racial abuse by his co-workers which included branding him with a hot screwdriver, whipping and calling him names. The employment tribunal ruled in his favor, a ruling which was overturned by EAT on the ground that such acts cannot be called as done in the “course of employment” primarily because they were too outrageous and cannot be said to be an improper mode of doing their jobs and therefore not attributable to the employer. The Court of Appeal however, reversed the ruling employing wider latitude of interpretation by attaching to the phrase its common everyday meaning and departing from the common law influence of vicarious liability (Smith & Gareth 2007 p 283). The implication of the Jones case to the present case is that many of the acts of his co-workers amounting to racial harassments could very well be considered as within the ambit of the phrase “in the course of employment” even if they were not done within the sphere of their job functions. As they were done not only within or in the vicinity of the premises of the employer’s workplace and mostly during work hours, the implication is that the control factor was clearly within the grasp of the employer. (3) Burden of Proof in Racial Discrimination Cases against Employers Section 54A of the RRA 1976 is also significant to the present case because it essays a provision of law which will help the client’s case. The said provision states that when a case has been determined to be under the jurisdiction of the EAT because it alleges, among others, racial discrimination and harassment, the claimant has only to prove the facts from which the Tribunal can conclude discrimination and the complaint will be upheld by it unless the respondent disputes it by contrary proof. This provision was applied in the Abbey v Chagger case to be discussed later in this paper. B Under the Employment Rights Act 1996 (1) Violation of the Right to a Written Statement of Particulars Under Section 1 of the ERA 1996, an employer is obligated to issue to his employee a written statement of particulars which contains, among others, the following: the parties to the employment; the remunerations; job description; hours of work; terms of employment, and; termination and disciplinary procedures (Part 1Employment Rights Act 1996). The employer is required to comply with this requirement not later than two months after the start of the employment if no partial particulars were given in installment at the beginning. In the case at bar, Electric Dreams Ltd. failed to comply with this requirement where the client Mr. Theopopolous is concerned showing explicit violation of the aforesaid provision of employment law and considering also that the latter had particularly requested the employer to issue him the particulars. Even though the client’s termination is already in effect since June 8, 2009, he still has the right to enforce the compliance of this provision with the EAT because under s 11, §4(a), an employee whose employment has ceased can still avail of this remedy “before the end of the period of three months beginning with the date on which the employment ceased.” In the client’s case, the period is still to expire on September 11. This remains important to the case as to make the appropriate determination as to the compensation to which is owed him and other important details like the appropriate procedures in the conduct of the termination. (2) Violation of the Right to Notice of Termination Notwithstanding the lack of the written particulars at this stage, the ERA 1996 however, has prescribed the minimum requirements in the conduct of employment like in the termination of employees which is also an issue in this case. Under s 86 of Part IX of the ERA 1996, the employer is obliged to give the employee a notice of termination not less than a week before actual termination. This is applicable to the client’s case because under §(a) of the said section, he has worked for the company continuously for more than one month and less than two years. (3) Violation of the Fair Dismissal Rule Under Part X, Chapter 1, s 98 of the employment law, an employer has the burden of proof to show in an unfair dismissal case the primary reason for the dismissal and that such dismissal falls within the category which the law considers as reasons for dismissal which are: a reason related to capability or qualifications; a reason related to the conduct of the employee; redundancy; the position that the employee held is in contravention of a law. It is not enough however that an employer is able to give any of the aforementioned reasons. To determine if unfair dismissal is not attendant to the termination, the said reason or reasons must be subjected to the fairness test and this fairness test, in accordance with §4, involves the determination whether such reasons given were reasonably employed or not by the employer in making them as grounds for the termination. In addition, the EAT will also subject such reasons under the universal principle of equity and the merits of the case in general. Of primary importance here is the fact that the client’s employer had, for several times, noted his satisfaction of the client’s performance in the workplace which makes his reasons for termination conflicting with his earlier pronouncements. (4) The case of Chagger v Abbey National plc The case of Chagger v Abbey National plc [2009] IRLR 86 is a very important case because it highlights the detrimental consequences of the failure of the employer to comply with statutory requirements and procedures relative to employment, employment termination and racial discrimination. The claimant in this case was of Indian origin and was terminated on the ground of redundancy. His ultimate selection for termination was allegedly due to scoring lower than the other nominee, a white woman. The bank failed to give Chagger a notice of termination as required under the ERA. Before his dismissal took effect, he received the annual bonus in an amount much lower than that of the previous year. The claimant instituted a complaint under the employer’s grievance procedures but it was dismissed outright. The Tribunal decided that there was unfair dismissal evinced by the failure of the respondent to abide by the statutory requirements of dismissal, the attendance of racial discrimination in the dismissal as shown by the use of irrational and subjective criteria, and the absence of many other procedural requirements pertinent to employment laws. The Tribunal applied s 54A of the RRA which shifted the burden of proof on the respondent. It upheld the claim because the latter was not able to provide convincing proof that the termination of the claimant was not attended by racial discrimination. The highly publicised case of Abbey may find applicability in the present case considering that the respondent failed to comply with many of the statutory requirements relative to employment practices like failure to give at least a one week notice of dismissal, failure to apply the fairness test under the ERA, failure to provide its employees with training on equal opportunities which could have instructed them on how to avoid racism in the workplace. References: Burton v De Vere Hotels Ltd [1997] ICR 1. Chagger v Abbey National plc [2009] IRLR 86, [2008] UKEAT 0606_07_1610, [2009] ICR 624, [2009] IRLR 86, [2008] UKEAT 0606_07_1610, [2009] ICR 624, Employment Rights Act 1996. opsi. http://www.opsi.gov.uk/acts/acts1996/ukpga_19960018_en_1 Gravell v London Borough of Bexley, [2007] UKEAT 0587_06_0203. United Kingdom Appeal Tribunal. Bailii. http://www.bailii.org/uk/cases/UKEAT/2007/0587_06_0203.html Jones v Tower Boot Co Ltd [1997] IRLR 168. Pearce v The Governing Body of Mayfield School [2003] ICR 937, [2003] ELR 655, 2003 SLT 1158, 2003 SC (HL) 35, [2003] UKHL 34, 2003 GWD 23-677, [2003] IRLR 512, [2004] 1 All ER 339, 2003 SCLR 814. bailii. http://www.bailii.org/uk/cases/UKHL/2003/34.html Race Relations Act 1976. opsi. http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1976/cukpga_19760074_en_1 Smith, Ian & Thomas Gareth, Smith & Thomas' Employment Law, Edition 9. Oxford University Press, 2007. Read More