Al-Azzawi v London Borough Of Haringey

For the employer’s reasonable-steps defence under section 32(3) of the Race Relations Act 1976, the primary focus is on measures taken before the discriminatory act. Later disciplinary treatment may sometimes illuminate the adequacy of preventive measures, but it does not do so automatically. Where an employer has genuine equality policies, training and disciplinary procedures, a tribunal cannot reject the defence solely because it considers the sanction imposed after the event too lenient. An appeal from an Employment Tribunal lies only on a point of law. Findings of fact and factual inferences are for the Tribunal unless unsupported by evidence, contrary to uncontradicted evidence, or perverse.

Dr Al-Azzawi sought permission to appeal against an Employment Appeal Tribunal decision concerning complaints of unfair dismissal and race discrimination. The Employment Tribunal had dismissed his complaints in two cases but awarded compensation for a racial remark made by a council employee. The Employment Appeal Tribunal allowed the council’s cross-appeal, holding that the Tribunal had misapplied section 32(3) of the Race Relations Act 1976.

The renewed applications concerned the section 32(3) defence and the Tribunal’s findings that a redundancy dismissal, unsuccessful job applications and refusals of transfer were not racially discriminatory. The central issues were whether later disciplinary treatment could defeat the reasonable-steps defence and whether the Employment Tribunal had made an error of law.

1. Applications dismissed. Permission to appeal was refused in both matters. The Employment Appeal Tribunal had correctly identified an error of law in relation to the council’s section 32(3) defence, and there was no arguable error of law in the other case.
2. Section 32(3) requires attention to the steps it was reasonably practicable for the employer to take to prevent the employee from committing the discriminatory act. The relevant inquiry ordinarily focuses on measures adopted before the act, including the employer’s policies, disciplinary procedures, training and codes of practice.
3. Events after the discriminatory act can, in an appropriate case, throw light on the reasonableness and effectiveness of preventive measures. In this case, however, the Employment Tribunal had found that the council’s equality measures were genuine and were not merely a matter of paying lip service to racial equality. Its criticism of the penalty imposed on the individual employee did not undermine the validity of the preventive measures. The defence under section 32(3) therefore succeeded.
4. The approach stated in Canniffe v East Riding of Yorkshire [2000] IRLR 555 was not inconsistent with that conclusion. The question remains whether the employer took preventive steps and whether further reasonably practicable steps were available.
5. In the redundancy and appointment case, the Employment Tribunal was entitled to assess suitability, qualifications and experience as legitimate non-discriminatory factors. Its conclusions were findings of fact and factual inference. No misdirection of law or perversity was shown.

• Court of Appeal (Civil Division): renewed applications for permission to appeal dismissed on 30 May 2002.
• Employment Appeal Tribunal: dismissed the applicant’s appeal in the relevant cases and allowed the council’s cross-appeal concerning the section 32(3) defence.
• Employment Tribunal: dismissed the complaints of unfair dismissal and race discrimination in the relevant cases, but had awarded compensation for an act of race discrimination by a council employee.