Aziz v Trinity Street Taxis Ltd

Victimisation requires comparison with a person who has not done the relevant protected act. The protected act and the treatment complained of are excluded from the relevant circumstances used for that comparison.

An act is done “by reference to” race relations legislation when it is undertaken with that legislation broadly in contemplation. The person need not have identified a particular statutory provision. Liability nevertheless requires a conscious causal connection: the protected character of the act must have influenced the alleged discriminator’s treatment.

A taxi proprietor of Asian origin was expelled from a trade organisation after secretly recording conversations with other members. He had made the recordings while considering whether alleged unfair treatment might constitute racial discrimination.

The Industrial Tribunal dismissed his victimisation complaint under sections 2 and 11(3)(b) of the Race Relations Act 1976. The Employment Appeal Tribunal, whose decision was reported at (1986) 1 R.I.R. 435, dismissed his appeal. The central issues were whether making the recordings was an act done “by reference to” the Act, which comparator section 2 required, and whether the protected character of the recordings caused the expulsion.

1. Disposition. The Court of Appeal dismissed the appeal. Slade LJ delivered the judgment. Although the Employment Appeal Tribunal had erred on the meaning of a protected act and on the required comparison, it had correctly concluded that causation was not proved.
2. An act is done “by reference to” the Race Relations Act 1976 within section 2(1)(c) if it is done by reference to race relations legislation in the broad sense. The actor need not focus upon any particular provision. The Industrial Tribunal was therefore entitled to find that making the recordings was protected: the appellant suspected possible racial discrimination and contemplated using the recordings when seeking legal redress.
3. The comparator adopted in Kirby v Manpower Services Commission (1980) I.C.R. 420 was incorrect. The relevant circumstances under section 2 subsist before the treatment complained of. They do not include that treatment or the complainant’s protected act. Otherwise, a discriminator could avoid liability by treating everyone who performed the same protected act with equal intolerance. The treatment must instead be compared with that afforded, or which would be afforded, to a person who had not done the protected act.
4. On that comparison, the appellant was treated less favourably. As a member of the organisation, he was expelled when members who had not performed the protected act were not.
5. Section 2 also requires the less favourable treatment to occur by reason of the protected act. For an act within section 2(1)(c), the fact that it was done under or by reference to the legislation must consciously influence the discriminator. It is insufficient that the discriminator objects to the physical conduct without being influenced by its statutory character.
6. The organisation expelled the appellant because its members regarded secret recording as underhand and as a breach of trust. It would have acted identically had the recordings been made for a purpose unrelated to race relations legislation. The required causal connection was therefore absent. The causation reasoning in Cornelius v University of Swansea (1987) I.R.L.R. 141 supported that conclusion.

The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

1. Court of Appeal: Dismissed the appeal, although it rejected parts of the reasoning below. The appeal failed because the statutory character of the protected act had not caused the expulsion.
2. Employment Appeal Tribunal: On 20 May 1986, dismissed the appeal from the Industrial Tribunal; decision reported at (1986) 1 R.I.R. 435.
3. Industrial Tribunal: On 13 February 1985, dismissed the complaint under the Race Relations Act 1976. It found that making the recordings was protected but applied the wrong comparator and found no victimisation.