Moxam v Visable Changes & Anor (Harassment)

Race discrimination under the Race Relations Act 1976 is assessed by reference to whether conduct is on racial grounds, not only by reference to the claimant’s own racial identity. A claimant need not belong to the racial group targeted by discriminatory language. Where separate incidents reflect the same discriminatory mindset and a continuing state of affairs, they may constitute a continuing act for limitation purposes. A settlement term which purports to exclude statutory race-discrimination rights is ineffective where the statutory requirements for a valid compromise are not met. That ineffectiveness extends to an appeal concerning those rights. Where the Employment Appeal Tribunal identifies errors of law and the only permissible conclusion is clear, it may substitute its own decision rather than remit.

The claimant, an Afro-Caribbean office manager, brought race-discrimination and harassment claims arising from four workplace incidents between April and July 2009. The Employment Tribunal upheld claims concerning the June and July incidents but rejected the April and May incidents, treating them as directed towards immigrants rather than the claimant and finding the claims out of time.

After the tribunal judgment, the parties recorded an agreement under which the claimant received £10,000 and agreed to take the matter no further. The respondents accepted that the agreement did not satisfy the statutory requirements for compromising race-discrimination claims, but argued that it nevertheless prevented an appeal. The central issues were the proper meaning of racial grounds, whether the incidents formed a continuing act, and whether the agreement barred the appeal.

1. Appeal allowed. The Employment Tribunal had erred in treating the statutory question as whether the conduct was on the grounds of the claimant’s own race. The correct inquiry was whether the conduct was on racial grounds. The claimant’s racial identity was irrelevant where she was subjected to, or affected by, discriminatory language directed at another racial group. The April and May references to immigrants were therefore capable of constituting race discrimination and racial harassment.
2. The tribunal’s findings concerning the June and July incidents established a continuing state of affairs. The incidents reflected the same racist attitude, language and failure to implement equal-opportunities policies. The April and May incidents were sufficiently connected to the June and July incidents to form part of the same continuing act. The tribunal had failed to apply that approach.
3. The agreement did not bar the appeal. Under sections 72(1) and 72(3), and section 4A, of the Race Relations Act 1976, the term purporting to exclude or limit statutory rights was void or unenforceable because the agreement lacked the required particulars. The substantive rights arose under the race-discrimination legislation, while the Employment Tribunals Act 1996 supplied the mechanism for enforcement in both the Employment Tribunal and the EAT. It would be incoherent to permit enforcement at first instance but prohibit an appeal.
4. There was no utility in remitting the matter. Applying the tribunal’s accepted findings and the correct legal approach, the only permissible conclusion was that the April and May incidents formed part of the continuing act and involved race discrimination and racial harassment. The EAT substituted that conclusion and allowed the appeal.

• Employment Appeal Tribunal: allowed the claimant’s appeal from the Employment Tribunal’s judgment sent on 21 January 2011. The EAT substituted findings in the claimant’s favour concerning the April and May incidents.