Anyanwu and Another v. South Bank Student Union and Others And Commission for Racial Equality

Under section 33(1) of the Race Relations Act 1976, a person aids another by knowingly giving more than negligible help or assistance towards an act made unlawful by the Act. The word bears its ordinary meaning. Liability does not depend on whether the aider was a free agent, a secondary actor or the prime mover. Causing, procuring, instructing or inducing an act is distinct from aiding it.

A fact-sensitive discrimination claim should proceed where the pleaded allegations, assumed to be true, are capable of establishing such assistance. The tribunal must identify the principal unlawful act and determine whether the alleged aider's conduct helped the principal actor to perform it.

The appellants were employed as salaried officers of a student union. After the university suspended and expelled them, and prohibited them from entering university buildings, the student union terminated their employment. They alleged that the dismissal was racially discriminatory and that the university had knowingly aided it, contrary to section 33(1) of the Race Relations Act 1976.

The industrial tribunal struck out the claims against the university by reference to earlier judicial review proceedings. The Employment Appeal Tribunal reversed that decision and remitted the claims. The Court of Appeal, by a majority, restored the strike-out on the different ground that a prime mover which brought about the dismissals could not have aided them: [2000] ICR 221.

The central questions were how “aids” should be construed and whether the pleaded allegations disclosed an arguable claim requiring a trial.

1. Disposition. The House unanimously allowed the appeal, set aside the Court of Appeal's order and restored the Employment Appeal Tribunal's order. The claims against the student union and the university were remitted to an employment tribunal for a substantive hearing.

2. Construction of section 33(1). Lord Bingham delivered the leading construction, the core of which was accepted by the other Law Lords. The Race Relations Act 1976 was remedial legislation directed against racial discrimination and section 33(1) had to be read purposively in its statutory context. “Aids” bears its ordinary meaning of helping or assisting. The help need not be substantial, productive or necessary, although assistance so insignificant as to be negligible is insufficient.

   The statutory language did not warrant additional requirements that the aider be a free agent or a secondary actor rather than the prime mover. It was also necessary to distinguish aiding from instructing, inducing, procuring or causing. A person who causes or induces an unlawful act may aid it, but does not necessarily do so.

3. Operative inquiry. Lord Bingham and Lord Hope identified the essential inquiries as: first, what act by the principal actor was made unlawful by the Act; and secondly, whether the alleged aider's act helped the principal actor to perform it. For the strike-out application, the relevant principal act was the student union's allegedly racially discriminatory dismissal. The meaning of “knowingly” did not require decision. Lord Hope observed that section 33(1) referred to actual knowledge, in contrast to the express reference to recklessness in section 33(4).

4. Application and strike-out. Lord Steyn and Lord Hope, with Lord Browne-Wilkinson agreeing, held that the allegations disclosed an arguable case. The alleged making of accusations to the student union, the placing of the union under an interim constitution, and the appointment of a university-selected trustee who signed the termination letters were capable of amounting to assistance. Those matters required factual investigation.

   Discrimination claims are commonly fact-sensitive and should not be struck out where the allegations disclose a reasonable prospect of success. Lord Bingham acquiesced in the majority's conclusion. Lord Millett retained doubts about whether the summarised acts could amount to aiding, but agreed that the claim should proceed because the appellants' full case might extend beyond that summary.

1. House of Lords — The House unanimously allowed the appeal in [2001] UKHL 14, set aside the Court of Appeal's order and restored the Employment Appeal Tribunal's order remitting the claims for a substantive hearing.

2. Court of Appeal — By a majority, Butler-Sloss and Laws LJJ, with Pill LJ dissenting, the court allowed the university's appeal and struck out the claims. It held that the university could not have aided the dismissals within section 33(1) of the Race Relations Act 1976: [2000] ICR 221.

3. Employment Appeal Tribunal — On 19 January 1998, the tribunal allowed the appellants' appeal, rejected the res judicata and abuse-of-process grounds, and remitted the claims for a hearing on their merits.

4. Industrial tribunal — Following a preliminary hearing on 21 March 1997, with reasons issued on 7 April 1997, the tribunal struck out the claims against the university as frivolous or vexatious on res judicata grounds.