Jones v Tower Boot Co Ltd

Section 32(1) of the Race Relations Act 1976 requires the expression in the course of employment to be given its ordinary meaning. It does not incorporate the restricted common-law test for an employer’s tortious vicarious liability. A purposive construction, read with the statutory reasonable-steps defence in section 32(3), permits an employer to be liable for workplace racial harassment by employees even without knowledge or approval. Whether particular conduct occurred in the course of employment is a fact-sensitive question for the tribunal, assessed without importing tort-law analogies.

A 16-year-old employee of mixed race alleged that fellow employees subjected him to serious physical and verbal racial harassment at a shoe factory. The Industrial Tribunal found that the treatment was on racial grounds, rejected the employer’s reasonable-steps defence, and awarded £5,000.

The Employment Appeal Tribunal, by a majority, allowed the employer’s appeal. It held that the conduct was outside the course of employment under the common-law test of vicarious liability, while remitting a separate issue to a new tribunal. The employee appealed and the employer challenged the remittal. The central issue was whether section 32(1) of the Race Relations Act 1976 imports that common-law test.

1. Disposition. The Court of Appeal unanimously allowed the employee’s appeal, dismissed the employer’s appeal, restored the Industrial Tribunal’s decision, and ordered the employer to pay the employee’s costs.
2. Section 32(1). Lord Justice McCowan held that the Employment Appeal Tribunal had erred in treating the statutory words in the course of his employment as subject to the common-law rules of tortious vicarious liability. The words attributing conduct to an employer whether or not it was done with its knowledge or approval had substantive effect. The statutory scheme also contained the distinct reasonable-steps defence in section 32(3).
3. Earlier authority. Irving v The Post Office [1987] IRLR 289 did not bind the court on the construction of section 32(1). Its judgments did not refer to that provision, and the present statutory question had not arisen for decision.
4. Statutory construction. Lord Justice Waite, with whose judgment Lord Justice Potter agreed, held that both purposive and linguistic construction required a broad, ordinary-language meaning. The anti-discrimination legislation was directed to eliminating workplace racial and sexual harassment. It would undermine that scheme if the more serious the harassment, the less likely the employer would be liable. The reasonable-steps defence instead protected an employer that had taken reasonably practicable preventive measures.
5. Application. Industrial Tribunals must determine whether conduct was in the course of employment on the circumstances of the individual case. They must not allow parallels with common-law vicarious liability to govern that factual assessment. The serious workplace harassment found by the Industrial Tribunal was therefore capable of statutory attribution, and its order was restored.

• Court of Appeal: The employee’s appeal was allowed; the employer’s appeal was dismissed; and the Industrial Tribunal’s decision was restored: [1997] ICR 254.
• Employment Appeal Tribunal: By a majority, allowed the employer’s appeal on the course-of-employment issue and remitted a separate issue to a differently constituted Industrial Tribunal.
• Industrial Tribunal: On 30 November 1993, upheld the racial discrimination claim, rejected the reasonable-steps defence, and awarded £5,000.