Anyanwu and Another v South Bank Student Union and Another And Commission For Racial Equality

The appeal concerned the correct construction and application of section 33(1) of the Race Relations Act 1976. The court held that 'aids' in section 33(1) should be given its ordinary meaning — to help, assist or co-operate — and construed purposively in the context of the Act. The word does not subsume the distinct concepts of 'procure', 'induce' or 'instruct' found in sections 30 and 31, nor should it be narrowly confined by metaphors such as 'prime mover' or 'free agent'. Because liability under section 33(1) is fact-sensitive, a derivative claim that a third party 'knowingly aided' an employer to commit an unlawful act could not be struck out on the pleadings where an arguable case was made out that the third party assisted or cooperated in the employer's dismissal of the claimants on racial grounds. The Court of Appeal's approach was therefore set aside and the matter remitted to an employment tribunal for hearing.

This appeal arose from claims by two former student-union officers that they were racially discriminated against by their employer (the student union) and that the university knowingly aided the union to dismiss them, contrary to section 33(1) of the Race Relations Act 1976.

Background and procedural history:

• The appellants were elected full-time officers of the student union and thereby employed and made trustees of union funds. The university suspended and then expelled them and forbade them from university buildings; the student union treated their employment contracts as at an end.
• The appellants brought discrimination complaints in the employment tribunal under Part II of the Act against the student union and, under section 33(1), against the university. The employment tribunal struck out the claims against the university as frivolous or vexatious. The Employment Appeal Tribunal allowed an appeal and remitted the matter. The Court of Appeal, by majority, held that even on the pleaded facts the university could not be said to have 'knowingly aided' the union to dismiss the appellants and restored the striking-out. The appellants appealed to the House of Lords.

Issues framed:

• What is the correct meaning of 'aids' in section 33(1) of the Race Relations Act 1976?
• On the facts as pleaded, was there an arguable case that the university had 'knowingly aided' the student union to dismiss the appellants?
• Whether the claim against the university should have been struck out at a preliminary stage.

Reasoning and outcome:

• The House construed section 33(1) purposively and in context, holding that 'aids' bears its ordinary meaning (help, assist, co-operate). It is distinct from 'procure', 'induce' or 'instruct' in sections 30 and 31 and should not be limited by the 'prime mover' metaphor adopted by the Court of Appeal majority.
• The court emphasised the statutory scheme for enforcement (tribunal and county/sheriff courts) and that section 33(1) creates derivative liability based on another's unlawful act.
• Given the factual allegations (including that the university made allegations to the union, interfered with employment relationships, and approved an interim constitution enabling university-appointed trustees to act), the House concluded there was an arguable case that the university knowingly aided the union. Because the issue was fact-sensitive, it was inappropriate to strike out the claim; the matter was remitted to an employment tribunal for hearing.

Appeal allowed. The Court of Appeal order striking out the claim against the university was set aside and the matter remitted to an employment tribunal. The House held that section 33(1) should be read purposively and that 'aids' means knowingly to help, assist or cooperate; whether that is established is a fact-sensitive question that should be determined at trial rather than on strike-out.

Employment tribunal: claim against the university struck out as frivolous or vexatious (reasons issued 7 April 1997). Employment Appeal Tribunal: appeal allowed and matter remitted (judgment dated 19 January 1998). Court of Appeal: majority allowed university's appeal and restored striking-out ([2000] ICR 221). House of Lords: appeal allowed and Court of Appeal order set aside ([2001] UKHL 14). High Court: earlier refusal of leave for judicial review (Jowitt J, June 1996).