Sidhu v Aerospace Composite Technology Ltd

For vicarious liability under the Race Relations Act 1976, whether conduct occurred in the course of employment is judged in the ordinary sense of those words and is a fact-sensitive question. Direct racial discrimination requires less favourable treatment on racial grounds, assessed against a comparator in the same or materially similar circumstances, unless the conduct is itself race-specific. A disciplinary policy which disregards all provocation, rather than racial provocation specifically, is not race-specific merely because the particular provocation was racial. Unfair dismissal and racial discrimination involve distinct inquiries. Unreasonable treatment or the absence of discriminatory motive does not, by itself, establish or disprove discrimination.

Mr Sidhu, a Sikh employee, was dismissed after a company-organised family outing at which he was subjected to a racial attack and then picked up a chair during the ensuing confrontation. The Employment Tribunal found the dismissal unfair but, by a majority, rejected his complaint that his employer had directly discriminated against him and was vicariously liable for a fellow employee’s conduct.

The Employment Appeal Tribunal allowed Mr Sidhu’s appeal, substituted a finding of racial discrimination and remitted the matter, as reported at [1999] IRLR 683. The employer appealed. The issues were whether the Employment Tribunal had misapplied the test for vicarious liability and whether it had erred in finding no direct discrimination when the employer applied a policy dealing with employee violence without regard to provocation.

Appeal allowed unanimously, with costs. The Employment Tribunal’s majority decision dismissing the racial discrimination complaint was restored.

1. Under section 32(1) of the Race Relations Act 1976, the phrase in the course of employment bears its ordinary, lay meaning. The tortious distinction between an unauthorised mode of performing an authorised act and an unauthorised act does not govern the statutory question. The issue is one of fact for the tribunal, assessed in the circumstances of the particular case. The fact that the family outing was organised by the employer did not make the Tribunal’s conclusion unavailable. Another tribunal might have reached a different conclusion, but the majority’s conclusion was open to it.
2. The Employment Appeal Tribunal had analysed the Employment Tribunal’s reasons too finely. As explained in UCATT v Brain [1981] ICR 542, Jones v Mid Glamorgan County Council [1997] IRLR 685 and Meek v City of Birmingham District Council [1987] IRLR 250, reasons need not be formalistic. They must outline the material story, findings and reasoning sufficiently to show why the parties won or lost and whether a question of law arises. Inappropriate terminology will not invalidate a decision where the tribunal directed itself correctly and its conclusion is open on the evidence.
3. For direct discrimination under sections 1(1)(a) and 3(4), the complainant must establish less favourable treatment on racial grounds compared with treatment of another person in the same or not materially different circumstances. Comparator evidence is unnecessary where the complained-of conduct is itself race-specific, such as racial harassment or abuse, as illustrated by Porcelli v Strathclyde Regional Council [1986] ICR 564 and Burton v De Vere Hotels [1996] IRLR 596.
4. The employer’s policy was not race-specific. It required provocation to be disregarded whatever its source. The policy would have been applied in the same way if the provocation had been non-racial or if the employee had been attacked for another reason. Although the policy was unreasonable and unfair, that did not establish less favourable treatment on racial grounds.
5. The Tribunal was entitled to distinguish the unfair-dismissal inquiry from the discrimination inquiry, consistently with Zafar v Glasgow City Council [1998] IRLR 36. It also did not impermissibly rely on absence of discriminatory motive. The absence of motive cannot negate discrimination once established, but the policy’s content was relevant to whether discrimination had been established, as recognised in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] AC 1155.
6. Mr Smith was not a proper comparator because he had not been subjected to the same provocation. Evidence concerning the earlier treatment of Mr McCulloch did not compel an inference of racial discrimination. The majority were entitled not to draw that inference.

• Court of Appeal: allowed the employer’s appeal with costs and restored the Employment Tribunal majority’s dismissal of the racial discrimination complaint.
• Employment Appeal Tribunal: allowed Mr Sidhu’s appeal, substituted a finding of racial discrimination and remitted the matter, reported at [1999] IRLR 683.
• Employment Tribunal: found the dismissal unfair but, by a majority, dismissed the racial discrimination complaint.