Commission for Racial Equality v Dutton

A condition excluding persons who lead a nomadic life is not direct racial discrimination merely because it includes some Gypsies. Its meaning must be determined in context. Gypsies in the ethnic sense are, however, a racial group defined by ethnic origins under the Race Relations Act 1976. Ethnicity is construed broadly and does not require common biological descent. A long shared history and a distinctive cultural tradition are essential characteristics, with other indicia providing support.

For indirect discrimination, a person’s ability to comply with a condition is assessed when compliance is required. A condition excluding travellers could therefore have a substantially adverse impact on nomadic Gypsies. Whether it was nevertheless justifiable required determination at first instance.

The Commission for Racial Equality sought a declaration and injunction after Patrick Dutton displayed signs at his public house stating “no travellers”. It alleged that the signs contravened section 29 of the Race Relations Act 1976 by indicating an intention to discriminate in the provision of services.

The Westminster County Court dismissed the action on 29 June 1987. The Commission appealed. The central issues were whether “travellers” meant Gypsies for direct-discrimination purposes, whether Gypsies were a racial group defined by ethnic origins, whether the condition had the statutory adverse impact, and whether it was justifiable.

1. Appeal allowed unanimously. The judge’s order was set aside and the action was remitted to the county court to decide whether the condition was justifiable under section 1(1)(b)(ii) of the Race Relations Act 1976. Nicholls LJ gave the leading judgment. Taylor LJ agreed and added observations. Stocker LJ concurred, despite reservations about the sufficiency of the evidence of continuing group identity.
2. The claim for direct discrimination under section 1(1)(a) failed. In the context of signs displayed at a public house near an encampment, “no travellers” meant no persons then living a nomadic life. It did not mean no Gypsies. The prohibited class included nomads of every race or origin, while Gypsies living in houses were not within it. The notices therefore did not indicate an intention to discriminate on racial grounds.
3. The court held that Gypsies in the narrower ethnic sense were a racial group under section 3(1). Applying the broad approach to ethnic origins in Mandla v Dowell Lee [1983] 2 AC 548, the evidence established a long shared history, common geographical origin, cultural traditions, a language or dialect, minority status and a retained social identity. Common biological descent, a common religion and a written literature were unnecessary. The judge had misdirected himself by treating the nomadic statutory meaning in the Highways Act 1959 and the Caravan Sites Act 1968 as decisive of the distinct question under the 1976 Act.
4. Section 1(1)(b)(i) was satisfied. The proportion of Gypsies able to meet a condition of not being a traveller was considerably smaller than the equivalent proportion of non-Gypsies. Following Clarke v Eley (IMI) Kynoch Ltd [1983] ICR 165, ability to comply fell to be assessed when the condition was invoked, not by asking whether a nomadic Gypsy could earlier have obtained housing. Section 1(1)(b)(iii) was also satisfied by exclusion from the public house.
5. The judge had left justification under section 1(1)(b)(ii) unresolved. The Court of Appeal could not satisfactorily determine it on the available facts. It remitted that issue, and any consequential relief, to the county court.

• Court of Appeal: Allowed the Commission’s appeal, set aside the dismissal, and remitted the justification issue to the county court: [1989] QB 783.
• Westminster County Court: Judge J. P. Harris QC dismissed the Commission’s action on 29 June 1987.