Harassment: Discrimination in Interpretation
*
Senior Lecturer
Portsmouth University Business School
Copyright 1998 Adele Sinclair.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
* I wish to thank Polly Doggart for her assistance and comments.
Summary
This article examines a series of recent judgments, concerning an employer's liability for harassment in the workplace, where a purposive approach to the legislation has been adopted. These are contrasted with other discrimination cases where judges have taken a very restrictive approach. The author questions whether this divergence of interpretive methods is legitimate and whether claims for sexual and racial harassment should continue to be regarded as a bi-product of discrimination. She concludes by discussing options for reform not only to legislative content but also to its construction.
Contents
1. Harassment and Discrimination
2. A separate species of vicarious liability
3. Direct Liability: Who is discriminating?
4. Subjection: Control Not Intention
5. Liability for Third Parties or Just a Question of Exposure?
6. A Question of Interpretation or Purpose?
Introduction
'To prepare for the next onslaught, the labour lawyer must maintain a vigilant search in the dark corners of every nook of the common law'. (Wedderburn 1992, p 51)
Lord Wedderburn's warning referred to collective labour law, but it is equally applicable to questions of sex and race discrimination, particularly when considering an employer's liability for harassment, except that the 'nooks' which require scrutiny are statutory.
In Jones v Tower Boot Co Ltd [1996] IRLR 168 and Burton and Rhule v De Vere Hotels [1996] IRLR 596 the courts were required to decide whether victims of harassment were able to claim against their employers in circumstances where a literal interpretation of the law, applying common law principles, would not have revealed a cause of action. The judges scrutinised the statutory provisions concerning vicarious liability and dug deep into the claim of 'unlawful discrimination' to extend the scope of direct liability for the actions of third parties and employees. They applied an expansive approach widening the employer's responsibility for harassment and in the process all but separated harassment as a concept both from discrimination and from the influence of the common law.
Such progression has been welcomed since the courts did not permit the wording of the legislation or case law on vicarious liability to present a hurdle to victims seeking a remedy (See CRE 1996 and Monaghan & Javaid 1997). But a study of other cases involving harassment and victimisation shows that the courts are not always willing to apply the purposive approach to the legislation. The judgments in cases such as Waters v Commissioner of Police of the Metropolis [1997] IRLR 589 and Adekeye v Post Office (No2) [1997] IRLR 105 illustrate a more restrictive approach which does not measure up to Tower Boot and Burton. This raises the question whether the extension of liability for harassment arises from a legitimate interpretation of the statutory provisions or whether policy considerations have led to undesirable interpretative acrobatics which are proving difficult to transport to other cases. It is asserted that consistency is of supreme importance in the area of equal opportunities, otherwise the purpose of the legislation is defeated in its application. To achieve this there must be separate and comprehensive legislation dealing with harassment and all new provisions concerning discrimination must be appropriately drafted to acknowledge the existence of new modes of interpretation.
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1. Harassment and Discrimination
Sexual or racial harassment have no separate legal home and have been dependent upon a civil action in the form of direct discrimination. The Sex Discrimination Act 1975 (SDA) and the Race Relations Act 1976 (RRA) have provided formulae designed to meet the specific targets of national social policy.(1) Section 1 of the RRA and SDA both define the direct form of discrimination (2) as 'less favourable treatment' on the grounds, respectively, of race and sex. A comparison is to be made with people not of the complainant's racial group or sex who are in circumstances which are the same, or not materially different, from those of the claimant (RRA s.3(4) and SDA s.5(3)). Discrimination becomes unlawful within employment in the circumstances given in RRA s.4 and SDA s.6. (3) These Acts became operative when the UK was already a member of the European Community, but before specific EC Directives (Equal Pay 75/117 and Equal Treatment 76/207) were implemented concerning discrimination.
Through the 1980s a restricted approach to interpretation of the SDA and the Equal Pay Act 1970 (EqPA) met increasing conflict at a European level (see for example, EC Commission v United Kingdom [1982] IRLR 333; Macarthys v Smith [1979] ICR 785, CA and Marshall v Southampton and South West Area Health Authority (Teaching) [1986] IRLR 140, ECJ). By the 1990s British courts were displaying a willingness to adopt a more purposive approach to both Acts although cases referred to the European Court of Justice (ECJ) continued to expose limitations where the Acts still did not measure up to EC social policy (see Barber v Guardian Royal Exchange Insurance Group [1990] ICR 616, and Marshall v Southampton and South West Area Health Authority (No.2) [1994] ICR 893 ECJ). (4) For example, the necessity to compare a man and woman's case for the purposes of s.1 was held to be entirely inappropriate as far as pregnancy dismissals are concerned (see Webb v EMO Air Cargo (UK) Ltd [1994] IRLR 482, ECJ, [1995] IRLR 645, HL.(5); but see Cox 1997, p 23) and has been part of the current debate concerning transsexuals ( P v S and Cornwall County Council [1996] IRLR 347; Wintemute 1997 p 343). Following extensive litigation, the SDA and EqPA underwent some amendment,(6) and, even where the statutes are unaltered, the courts have largely departed from traditional methods of interpretation in order to make national legislation consistent with the underlying principles behind EC equal opportunities law (a recent example is Falkirk Council and others v Whyte and others [1997] IRLR 560).
Although the EC Commission and the ECJ have been very active in ensuring that member states comply with the sex equality requirements of Article 119 of the Treaty of Rome and the Equal Pay and Treatment Directives, there are no specific EC provisions establishing individual rights of action for harassment. National courts take note of both the EC Recommendation and Code of Practice on measures to combat sexual harassment at work but focus remains at EC and national level on discrimination law.(7) The European Commission has entered consultations with a view to facilitating agreement, or introducing specific legislation concerning sexual harassment, (EC Consultation Paper) and following the election of a Labour Government and the Amsterdam Summit, the UK are now likely to be party to any such provisions (see Barnard 1997, p 275) but evidence of disagreement between member states, and employer/worker groups, as to the form and extent of protection, suggests that such measures are not imminent. (See comment in EOR 33, in particular as to the reaction of UNICE and their refusal to recognise the need for a binding instrument at European level).
What is regrettable is that, in spite of EC influence and various amendments, the RRA and SDA remain substantially in their original form whilst the case law grafted onto them contains much complexity and mystery. Race-based claims have no EC foundations but, since the RRA mirrors the SDA, judges have usually applied the same national precedents to both and amendments to the SDA, following ECJ decisions, have led to comparable amendments in the RRA.(8)
In the UK, the recent Protection from Harassment Act 1997 (PHA)(9) creates both criminal and civil actions against a person who pursues a course of conduct amounting to harassment. In time this Act may have considerable impact, but it is yet to be tried and may not provide adequate remedies against an employer since it does not focus upon employment. Until it is tested or EC law changed, the fundamental questions regarding liability for harassment within employment will essentially reflect those for discrimination, (see James v Eastleigh Borough Council [1990] ICR 554, IRLR 288, HL and Porcelli v Strathclyde Regional Council [1986] ICR 564) and almost certainly will continue to do so where an action is pursued against the employer.(10) It is within this context that the courts have been active.
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2. A separate species of vicarious liability
The employer's liability for sexual or racial harassment arises either directly when the employer itself is directly responsible for the treatment (through SDA s.1 and s.6 and RRA s.1 and s.4.) or through vicarious liability. The RRA s.32 provides that
'Anything done by a person in the course of his employment shall be treated as done by his employer as well as by him whether or not it was done with the employer's knowledge or approval.'
Under section 32(3) it is a defence for the employer to show that 'he took such steps as were reasonably practicable' to prevent both that specific act and general acts of discrimination within employment. Similar provisions are contained in the SDA s.41 and in the new Disability Discrimination Act 1995 (DDA) s.58.
The question of when an employer is vicariously liable for an act of harassment has been subject to revolutionary treatment by the Court of Appeal in Tower Boot. This case involved serious physical and verbal abuse of a young man of mixed race by some fellow employees. The employer argued that the harassers' actions, including burning Jones' arm with a hot screwdriver, could not be regarded as within the course of their employment. However, the court accepted Jones' contention (Tower Boot, pp 171 and 172) that the RRA goes beyond the common law test for vicarious liability (set out by Salmond as 'whether the unauthorised wrongful act of the servant is so connected with that which he was employed to do as to be a mode of doing it': Heuston 1996) in two major respects. First, because the Act is not confined to the master and servant relationship, since it refers to individuals working under contracts for services (RRA s.78), and so a restricted view of 'in the course of his employment' should not be taken; and, second, that the words in s.32(1) 'whether or not it was done with the employer's knowledge or approval' places a higher level of liability on the employer.
Indicating the limits of the judgment in Irving v the Post Office [1987] IRLR 289 CA, a case involving a postman who wrote racist remarks on an envelope, where the traditional approach to liability was adopted, the court focused on matters of 'policy'.(11) In reply to Tower Boot's contention that 'Parliament must have intended the liability of employers to be kept within reasonable bounds' (Tower Boot, p 172), Waite LJ responded
'I would reject that submission entirely. It cuts across the whole legislative scheme and underlying policy of s.32 (and its counterpart in sex discrimination), which is to deter racial and sexual harassment in the workplace through a widening of the net of responsibility..' (Tower Boot p 172)
Following Tower Boot, an employer will be vicarious liability for harassment occurring in the workplace or during working hours, unless it can show the statutory defence. In Irving, the Post Office did not know that the postman had written racist remarks on an envelope and did not have the ability to control him, they could also demonstrate that they had an operative harassment policy and a good record of responding to complaints. So, even if the court had decided that the postman's conduct was within the 'course of his employment', the Post Office may well have established the RRA s.32(2) defence (which mirrors the SDA s.41(3) defence). By contrast in Tower Boot, the employer was aware that the harassment was taking place but did not take adequate steps to prevent it or to discipline the perpetrators (see Buckley 1997, p 161).
As has been pointed out both in the judgment and by academic commentators (See for example Buckley 1997, p 160; Monoghan & Javaid 1997, p 351; Whitters 1995, p 530), Tower Boot avoided the situation where the employer has less responsibility the more extreme the nature of the harassment. Waite LJ concluded
'It would be particularly wrong to allow racial harassment on the scale that was suffered by the complainant.....to slip through the net of employer responsibility by applying to it a common-law principle evolved in another area of the law to deal with vicarious responsibility for a wrongdoing of a wholly different kind. To do so would seriously undermine the statutory scheme and flout the purposes which they were passed to achieve' (Tower Boot, p 172).
The Court of Appeal's starting point is one of principle, echoing EC law, and to meet that end they appear to have isolated the RRA and SDA from the common law. Waite LJ stresses the difference between the statutory liability for unlawful discrimination and other tortious actions where vicarious liability arises. Whilst recognising the desirability of finding a remedy for the victim of harassment, the fundamental differences he draws attention to are not immediately discernable. Actions for common law torts also involve the responsibility of employers for employees and often arise in circumstances where serious injury or death has been caused to fellow employees or third parties. However, an important distinction is that, under the Acts, the perpetrator of the discrimination is only responsible where the employer is held to be vicariously liable. In this way the restrictions of the common law test for vicarious liability represent an obstacle not only to an action against the employer but also against the culprit. Interestingly, as Tower Boot was concerned with a racial issue, the action could not be directly founded on EC law nor was the court bound to apply a purposive interpretation(12).
Approval was given in Tower Boot to the EAT decision in Burton as 'a useful illustration of matters to which employers need to be alert .'(Tower Boot, p 172) Whereas the ruling in Tower Boot focused on the responsibility of employers for the conduct of their employees, Burton and subsequent cases have concentrated on the direct liability of employers for exposing their employees to the risk of harassment from third parties.
3. Direct Liability: Who is discriminating?
In Burton, two young black waitresses were subjected to considerable racial abuse and harassment by Bernard Manning and some of his audience. The employer was held to have unlawfully discriminated on the grounds of race, even though it had not engaged Bernard Manning, but merely provided a catering service. The RRA s.4(2) makes it 'unlawful for a person, in relation to employment by him ....to discriminate against another .... by subjecting him [or her] to any... detriment'. In this case it was common ground that the treatment of the applicants by the 'entertainer' and his audience was a detriment.(13) The two major issues were whether the employer had discriminated against the employees and whether the employer had on the facts 'subjected' the employees to the detriment. Even though the manager in Burton had not warned the duty staff to watch out for problems, the tribunal came to the conclusion that this omission did not amount to 'less favourable treatment' on 'racial grounds' as required by the s.1 definition of discrimination. They concluded that the manager's failure to take appropriate action had 'nothing to do with their ethnic origins' although he knew that Bernard Manning was a 'blue' comic, he had not anticipated this type of harassment. (Burton, p 598: Para 20 of the tribunals reasons)
On appeal both counsel agreed that a person may discriminate against another when as a result of his active or passive treatment the other suffers racial abuse or harassment. Rejecting the tribunal's finding, the EAT said
'In our view the tribunal did impose upon the employees a burden additional to that imposed by the Act , namely the burden of showing that the employers subjected the employee to a detriment on racial grounds. In effect they required the employees to show that the employers were themselves affected by racial bias or animus.' (Burton, p 598)
The EAT go on to point out that an intention to discriminate or a malevolent motive are unnecessary for a finding of discrimination. (see R v Birmingham City Council ex parte EOC [1989] IRLR 173 and James) However they did not separate 'intention and motive' from the remaining requirement that 'the grounds of race' are the causative factor for the treatment.[14] In Balgobin & anor. v Tower Hamlets London Borough Council ([1987] ICR 829(15) the EAT drew a distinction between the cause of the treatment and the consequences of the treatment (at p 836).(16) The first would satisfy s.1 but the latter would not.
In the case of James, emphasis was laid on whether the different treatment had been because of the man's sex and not whether the respondent had a discriminatory intention; i.e. would he have been treated in this way 'but for' the fact he was a man? (James, at p 568, per Lord Bridge of Harwich).(17) Similarly in Porcelli the court was concerned with the nature of the conduct. Lord Grieve asked the question whether the treatment was 'because she was a woman' (at p 572). The Lord President expressed his opinion that
'a particular part of the campaign [of abuse] was adopted against the applicant because she was a woman. It was a particular kind of weapon, based upon the sex of the victim, [and] ... would not have been used against an equally disliked man.' (at p 562)
Even this acceptance that harassment of a sexual or racial nature will almost invariably be 'less favourable treatment' still acknowledges the necessity to prove discrimination under s.1. (See Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 concerning 'pin-ups'; McColgan 1995, at p181-186; Skidmore (1997), at p 57)[18] The Lord President addresses the relationship between the definition of discrimination under s.1 and the unlawfulness of s.6 in the following way:
'Although it is necessary for a woman seeking to found a claim upon section 6(2)(b) of the Act to establish that her employer had discriminated against her by dismissing her or subjecting her to some other detriment it is accepted by the employers for the purposes of this appeal, that if the applicant...was discriminated against within the meaning of s.1(1)(a) she was subjected to a detriment within the meaning of s.6(2)(b)'. (at p 568)
In Burton this proposition is reversed. Instead of the proof of discrimination satisfying, in most cases,(19) the requirement to show a detriment, the court is saying that if it is proved that an employee is subjected to a detriment involving harassment then discrimination is shown. In Weatherfield Ltd T/A VAN and Rentals v Sargent (1997) EAT/114/96 the EAT emphasised that s.1 is a 'definition' section and should therefore only arise once an unlawful activity has been identified under RRA s.4. (at p 9) But definition sections are still vital since they determine the cause of action, especially where the words in question (i.e. ''sex', 'discrimination' and 'race') are the main focus of the Act. In October 1997, the majority of the EAT in The Fire Brigades Union v Fraser (1997) EAT/11/97 decided that a trade union had not discriminated against a male member when they withdrew representative support from him concerning an accusation of sexual harassment by a fellow employee and union member. In overturning the tribunal's decision, the Lord President said that the tribunal had
'fallen into the trap of assuming that because the Union had behaved, in its judgment, unfairly, that they were entitled to draw the inference that the Union had been guilty of unlawful discrimination'. (at p 19)
There may have been less favourable treatment concerned with a sexual issue but it was not on the grounds of sex.
Section 1 of the Discrimination Acts is effectively redundant where the detriment itself meets the definition and in cases where the harassment is meted out by the employer these definitions are indeed tautological, but unless the tribunal's findings of fact can be regarded as perverse, there was no such coincidence of treatment in Burton. The waitresses had volunteered to serve that evening. It is stretching the sections to the limit to hold that grounds of race had caused the less favourable treatment by the employer.
The requirements of both sections may be met when the 'person' who discriminates is the employer or a fellow employee, for whom the employer is responsible. But to follow the EAT's logic in Burton, when the employer has no responsibility for the harasser, one must alter the words of the section from 'It is unlawful for a person to discriminate...' to 'It is unlawful for a person to subject another to a detriment so that discrimination occurs.' Surely not what the draftsmen intended.[20] The court did not address the question of 'Who is discriminating?' Discrimination is side-lined and enormous importance is placed on the phrase in RRA s.4 (SDA s.6) 'subject to...any other detriment'.
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4. Subjection: Control Not Intention
Counsel for the employer argued that in order for liability to arise under RRA s.4 there should be real culpability due to knowledge, recklessness or foresight. Counsel for the applicants argued that the necessary ingredients were an 'element of knowledge or foresight and an element of culpability'. She sought to draw comparisons with the tort of negligence both as regards the question of intention and transferable foresight (in this case from sex to race). The employer in Burton admitted that he might have contemplated a risk of sexually offensive remarks if he had thought about it.
The EAT rejected both of these arguments holding that the correct test was concerned with 'control'.
'We do not think it necessary or appropriate that any particular degree of foresight on the part of the employer need be established. Indeed we think that it is undesirable that concepts of the law of negligence should be imported into the statutory torts of racial and sexual discrimination.'(at p 600)
This last sentence echoes Waite LJ in Tower Boot. The test is divorced from the necessity to prove any intention, foresight or motive and rests on the question of control. Although foresight and knowledge may be relevant to control.
'A person subjects an employee to the detriment of racial harassment if he causes or permits the racial harassment to occur in circumstances where he can control whether it happens or not. ......An employer might foresee the racial harassment and yet be able to do very little, if anything to prevent it from happening or protect his employees from it(21)...Yet the prevention of such an event will be largely outside the employer's control. On the other hand if the harassment occurs, even quite unexpectedly, but in circumstances over which the employer has control, a tribunal may well find that he has subjected his employee to it.' (at p 600)
In this case the manager should have instructed the relevant supervisors to be alert to any such difficulties, with the result that the waitresses could have been withdrawn from the hall at an early stage.
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5. Liability for Third Parties or Just a Question of Exposure?
In Burton some problems could have been anticipated, although as discussed the interpretation seems over-generous in holding that the employer 'discriminated'. In the case of Go Kidz Co Ltd v Bourdouane EAT/1110/95 where the 'unexpected' scenario referred to by Waite LJ is illustrated, the EAT reached a similar decision in holding the organiser of children's parties responsible for unlawful sex discrimination by subjecting a young woman, who was in charge of a birthday room, firstly to the detriment of the harassment itself and secondly to dismissal.
There are major differences between the facts of these two cases. In Go Kidz the employer encouraged the employee to return to a situation which knowingly exposed her to harassment by one of the children's parents and, later, dismissed her when she and her mother pursued a complaint about the matter. In Burton, although the events could have been contemplated, the employees volunteered to do the work in the first place and were offered different work once the risk of further abuse was apparent. The employer in Burton behaved sensitively in response to the situation, Go Kidz did not.(22)
Referring to Porcelli, the EAT in Go Kidz said that it is sufficient for a complainant to show that behaviour is sexually offensive to a woman in order to establish discrimination under s.1(1)(a) SDA. In addressing the extent to which the Act rendered an employer directly liable for the harassment they stated that
'the direct duty placed upon the employer by the provisions of s1(1)(a) and s.6(2)(b) of the 1975 Act is to take all reasonable steps to prevent such discrimination taking place where it is within his power to prevent it. That will necessarily involve a degree of knowledge or foresight as to the risk of discriminatory acts being directed at the employee in the course of her employment and the power to prevent them occurring or continuing.' (at p 5)
Here the employer had actual knowledge once he permitted the treatment to continue. This raises the issue of whether the employer is 'discriminating' at this point. Lord Brand's statement in Porcelli was quoted in support of this contention
'...if a form of unfavourable treatment is meted out to a woman to which a man would not be vulnerable, she has been discriminated against within the meaning of s.1(1)(a).'(at p 576)
Since the dismissal was in response to Bourdouane's insistence that the sexual assault should be reported to the police, this action is more recognisable as direct discrimination, or at least victimisation,(23) and can be more easily pass the 'but for' test of James than Burton (i.e. the employer would not have dismissed her but for this complaint concerning her treatment as a woman). The underlying argument here is that the employer is not actually liable for the third party's actions but for its own action in exposing the employee to the harassment. Where there is knowledge it is easier to find discrimination, but, as discussed above, the EAT in Burton would not accept this as a determinative factor.
An inevitable sequel to Burton and Go Kidz is Chessington World of Adventure Ltd v Reed EAT/1063/96 where the vicarious liability provisions were not utilised and the employer was held directly liable in a case where the harassers were its employees. Reed was concerned primarily with the question of discrimination against a transsexual and the EAT upheld the tribunal's decision that a direct comparison of treatment between a biological male and a biological female was not required when interpreting the SDA in the light of the Equal Treatment Directive. It was sufficient that the unfavourable treatment was sex based. (As in cases such as Webb v EMO Air Cargo (UK) Ltd (No2) [1995] 4 All ER 577, [1995] ICR 1021, and P v S [1996] ICR 795, [1996] IRLR 347) Of great significance is that, following Burton, the tribunal decided that the employer was directly liable for the very serious harassment suffered by the victim at the hands of some fellow employees over a long period because of her sex-reassignment. The EAT agreed with the tribunal:
'In our judgment, similar principles apply [as in Burton], all the more so where those responsible for the harassment are employees and not a third party. It is abundantly clear, on the tribunal's findings of fact, that here the appellant was aware of the campaign of harassment directed towards the respondent, but took no adequate steps to prevent it, although it was plainly something over which it could exercise control.' (at p 7)
The tribunal did not rule upon whether the employer was vicariously liable, although it would seem that such an action would have succeeded following Tower Boot. The employer had not taken adequate steps to prevent the harassment and so a defence taking 'such steps as were reasonably practicable to prevent the employee from doing the act' (SDA s.41(3)) would fail.
Direct liability will therefore be found in harassment cases where tribunals consider that the employer has 'control' of a situation. Where employees are the harassers, rather than third parties, it seems likely that an adverse environment will be sufficient evidence, reinforcing the necessity for every employer to have a clear policy on discrimination which is demonstratively part of the culture of the organisation.(24) This may be 'good employment practice' but is 'good law' where such a complicated construction is necessary to extract it?
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6. A Question of Interpretation or Purpose?
It is difficult to fault these decisions when viewed from the perspective of the victim. In each case the applicants had suffered extreme harassment and the courts have met the challenge by providing a remedy. More questionable is how they have arrived at the remedy and that such flexibility of interpretation has not been permitted in other cases where applicants have been exposed to discrimination.
In Tower Boot Templeman LJ was quoted with approval when he said of the RRA:
'the Act was brought in to remedy a very great evil. It is expressed in very wide terms, and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act.' ( at p 171; see also Saujani v IRC [1981] 1 QB 458, 466)
Waite LJ added that there was no indication that Parliament intended 'in any way to limit the general thrust of the legislation.'(Tower Boot, p 171) Similarly in the case of Harrods Ltd v Remick and others [1997] IRLR 583 the Court of Appeal looked for the intention of Parliament concerning the scope of RRA s.7 (at p 584). A wide definition was given to the phrase 'work for' to enable three employees of concessionaires to claim race discrimination where Harrods had either refused or withdrawn 'store approval' from them. The Vice-Chancellor said that the correct approach to s.7(1) was to
'give a construction to the statutory language that is not only consistent with the actual words used but also would achieve the statutory purpose of providing a remedy to victims of discrimination who would otherwise be without one.'(at p 585)
The court was persuaded that although Harrods had no managerial control over these workers, it still derived some benefit from the work. Professor Bob Hepple QC (at p 586) had argued that the primary obligation imposed by the contractual arrangements between Harrods and the licensees was an obligation to market goods, not an obligation to supply labour.
This reliance on statutory purpose cannot justifiably support a claim that Parliament, at that time, intended or expected a purposive approach to be made with regard to the RRA or SDA and, as the Renton Committee (1975) pointed out (at para 19.3), law is drafted with the expectation of a certain mode of interpretation.(25) It is clear from the White Papers 1974 and 1975 concerning sex and race that the legislation would not be wide enough to address all matters of discrimination,(26) and that references to 'width' were largely concerned with the expansion of the unlawful categories to such matters as housing and education; as opposed to the Conservative Government's Bill which had proposed protection in relation to employment alone. (See White Paper (1974) at paras 22 and 23). Hansard shows that considerable time was spent ensuring that the Act should stand up to a literal interpretation. For example, the Government widened the existing definition of race to include 'nationality' as well as retaining 'national origins' for the sake of clarity.(27) However, judges have not entirely abandoned the literal mode of interpretation and reverted to it in the case of Waters v Commissioner of Police of the Metropolis.
The case of Waters provides an unsatisfactory contrast to Remick, Tower Boot and Burton. Following allegations by Waters that a fellow officer had sexually assaulted her, the Court of Appeal upheld the decisions of the tribunal and the EAT that the employer could not be held vicariously liable, since the acts complained of took place whilst both officers were off duty. She was unable to fulfil the requirements of a claim of victimisation under SDA s.4(1)(d) since although, she had on the face of it, suffered 'less favourable treatment' because of her allegations, the reason for the treatment was not
'that the person victimised...
(d) alleged that the discriminator or any other person had committed an act which...would amount to a contravention of this Act' (the author's emphasis)
In the EAT, the applicant's representative said that the technicalities of the SDA should not inhibit a successful action and argued
'If a complaint is made of conduct within the range of discriminatory behaviour, it matters not that the complaint when scrutinised proves to be unsound in law - whether it is because vicarious liability is not established or for any other reason. It is enough that the complaint is made, even if - in legal terms - it misses the mark. Any other interpretation would frustrate the purposes of the Act.' (at p 596)
Such argument was rejected in the EAT on the grounds that
'That submission amounts to substantial rewriting of the provisions which cannot be justified as statutory interpretation, even by reference to the terms of the Directive.' (Per Mummery J, Waters [1995] IRLR 535 (EAT))
Neither the EAT nor the Court of Appeal were 'slow to find' the treatment 'outside the ambit of the Act' (See Templeton LJ above). The Court of Appeal said that although legislation should be construed to fulfil its important public purpose there were limits:
'Charges of race and sex discrimination are hurtful and damaging and not always easy to refute. In justice, therefore, to those against whom they are brought, it is vital that discrimination (including victimisation) should be defined in language sufficiently precise to enable people to know where they stand before the law.' (at p 597)
It is of note that this case was dealing with a woman who alleged that she had been harassed and disadvantaged following her complaint of rape and buggery against a colleague. She lost the case, not on factual grounds, but because of the wording of the Act.(28) The case was somewhat complicated by the special relationship between the Commissioner of Police and his staff but this did not affect the decision with regard to the SDA. It seems that the victimisation provisions are not afforded the pliability of other forms of discrimination. (See Buckley (1997), pp 161-166) The appeal was dismissed applying very different principles to those promulgated in Burton, Go Kidz and Reed. Waite LJ continued
'It is better, and safer, to give the words of the subsection [s4(1)(d)] their clear and literal meaning.' (at p 597)
Similar comments were made in the case of Adekeye v Post Office (No2) where the applicant attempted to rely on alleged discriminatory treatment during a post-dismissal appeal procedure. Under RRA s.4(2) a claim of unlawful discrimination may only be made against an employer by 'a person employed by him'. Adekeye argued that the section should cover someone whose internal appeal hearing takes place after dismissal, or alternatively that her application for reinstatement should be viewed as a job application under s.4(1). The Court of Appeal rejected these arguments - giving the words their ordinary and natural meaning - the section covered a person who was employed at the time of the act complained of, not to a person who had been employed sometime previously. They referred to J Sainsbury Ltd v Savage [1981] IRLR 109, CA which stated that the effective date of dismissal is not postponed by an internal appeal procedure. (at p 109)
The argument that the court was obliged to interpret the section in the light of Equal Treatment Directive did not attract support. Although it was recognised as arguable, the Court of Appeal was sceptical and said that, in any case, it was too great a distortion of the meaning of the words contained in the SDA even if an analogy should be drawn with the RRA for the sake of consistency.(29) The court stressed that the wording of the Act should not be so distorted as to extend to this situation and were not moved by arguments that the appeal hearing was part of the 'dismissal process'. (Compare with Litster v Forth Dry Dock and Engineering Co. Ltd [1989] ICR 341.(30) Strangely, such interpretative inhibitions did not prevent a purposive approach in Burton or Remick, which were both concerned with issues of race.
A further case, Lasertop Ltd v Webster [1996] IRLR 489, also denied a remedy to an applicant when the respondent relied on the genuine occupation qualification (GOQ) of 'decency and privacy' under SDA s.7(2)(b). The EAT did 'not feel able to give a purposive construction to the plain words of the statute' following the decision of the Court of Appeal in Adekeye, even though they recognised that 'the statutory provisions lead to an apparent lacuna in the protection against discrimination' (at p 500). They allowed the employer to rely on SDA ss.7(3) and (4)(31) whose combined effect meant that an employer, who had not yet started in business, could refuse to employ a man because it had not 'already' sufficient female employees to cover the managerial duties of showing prospective members round a woman-only health club. As a case involving sex discrimination the decision was clearly open to challenge from a European perspective and displays even greater inconsistency, compared with cases such as Tower Boot and Burton, than Waters or Adekeye. (See the comment in EOR (1997), pp 51-52).
Waters, Adekeye and Lasertop highlight the inability of law created in a form suited to literal interpretation and lacking flexibility to fulfil a general purpose. It may be that judges have drawn back from 're-writing' the law but it is suggested that the generosity of construction shown in Tower Boot, Burton and Remick allows for so much re-construction that the distinction is not justified. It is also entirely unsatisfactory to apply different rules to race and sex discrimination, especially when the approach appears to vary case by case.
Top | Contents | Bibliography
Conclusion
In Bracebridge Engineering v Darby [1990] IRLR 3,(32) Wood LJ recounts how Sir John Donaldson in Aldred v Nacanco [1987] IRLR 292 had 'impressed upon us that it was not always useful to look at a multitude of cases but to go back to basic principles.' The issue was vicarious liability and the basic principles referred to were contained in Salmond on Tort. But the courts were at pains to distance the Discrimination Acts from common law principles in Tower Boot and Burton, and from EC principles in Adekeye.(33) Waite LJ explains in Tower Boot that the sex and race discrimination legislation
'broke new ground in seeking to work on the minds of men and women and thus affect their attitude to the social consequences of the difference between the sexes or the distinction of skin colour.' (at p 171)
Whatever the aims, the ground is certainly uneven. The 'basic principles' are unclear, and the law relating to discrimination, and harassment in particular, is in urgent need of reform. The PHA and the proposed Human Rights Bill will no doubt provide additional remedies to victims of discrimination but will not necessarily meet problems specific to the work environment (see Leach (1997) and Hepple et al (1997) for a discussion of the implementation of international human rights treaties). Unless a unified approach to the legislation is adopted then the problems and inconsistencies discussed in this paper will perpetuate.
One solution is to remove harassment entirely from the 'discrimination foundation'. A proposition made by Dine & Watt (1995) and favoured by the author. They argue that 'sexual harassment has little to do with discrimination' a point aptly illustrated by Burton and Go Kidz. (See also Hepple et al (1997), at p 11.(34)) The civil action contained in the PHA will go some way towards this, but it is unlikely to give an adequate cause of action against employers. Also prohibited conduct under the PHA must take place on more than one occasion and would not therefore catch some more serious forms of harassment such as that in Bracebridge.
Several proposals are set out by Hepple et al (1997) including a single equality Act, specialist adjudication and improving remedial powers of tribunals.(pp 11-15) Wintermute (Wintermute, R 1997a, 259) in reviewing this report supports the call for a single anti-discrimination Act. He writes that, after being accustomed to the 'Canadian model' of a single Act,
'the British model for prohibiting race and sex discrimination, through separate (although often identical) Acts enforced by separate agencies, struck me as distinctly odd.' (at p 259)
Hepple et al describe the existing discrimination legislation as an 'incoherent patchwork of piecemeal legislation'. (at p 6) McColgan suggests that harassment problems should be hived off as special cases or recommends us 'to rethink our entire legislative approach to sex discrimination' (McColgan 1995, 186); and Tatchell suggests that a comprehensive Equal Rights Act would provide a 'broad legal framework' which would outlaw discrimination on a wide range of grounds (Tatchell 1997). Whatever reformulation of legislation occurs recent judgments have made it essential that the law is drafted in such a way that it may be applied consistently to all cases within its ambit. If harassment is to receive special treatment in the courts then it should be afforded special status by the legislature. Likewise if a purposive approach is to be adopted then any new law must be drafted to meet a purposive interpretation and this should be applied across the board. The DDA 1995, for example, is drafted in a very similar way to the other Discrimination Acts, thus perpetuating difficulties concerning appropriate comparators. (See Clark v Novacold Ltd COIT Case No. 1801661/97. Discussed in IDS (1997) at p 5. In Waters Waite LJ warns
'Precision of language is also necessary to prevent the valuable purpose of combating discrimination from becoming frustrated or brought into disrepute through the use of language which encourages unscrupulous or vexatious recourse to the machinery of the Discrimination Acts.' (at p 597)
But the restrictions of precision of language were circumvented in Burton and Remick. The legislature and judiciary need to adjust in unison to the new environment. In construing statutes judges must draw a line between those who have a cause of action and those who do not, and the line should be evenly drawn. Decisions such as Tower Boot and Burton may be welcomed and justified on their individual facts, but they reveal a level of inconsistency when compared with other discrimination claims that is unacceptable. The EOC in 1988 proposed that the Sex Discrimination Act 1975 should be re-written. They said that
'The 1975 Act is essentially a series of prohibitions by which less favourable treatment of a member of one sex by comparison with the other is declared unlawful. From this one could deduce a general right for a person not to be subject to discrimination. But the creation of a framework within which good practice can develop is more likely to be achieved if its basic provisions are expressed in a positive way rather than negatively in a series of prohibitions. Adopting this approach, the basic principle could be expressed as a right not to be discriminated against.' (EOC 1988, at p 5)
Ten years later the cases call out for this overdue reform. But whether the law is expressed in terms of rights or prohibitions, harassment cases should be treated separately from discrimination, and more concentration should be given to the way in which the law is drafted. The existence of such complexities and inconsistencies in the national law, partially set against an EC backcloth, where in some cases judges proclaim the benefits of a purposive, and in others, a literal, interpretation, makes a mockery of the law and brings into question equality of justice as well as equality of opportunity.
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Footnotes
(1). i.e protection from discrimination in employment on the grounds of sex, marriage and race. Later targets have been trade union and disability discrimination.
(2). As opposed to indirect discrimination and victimisation.
(3). Harassment will usually be the claim of a detriment under RRA 4(2)(c) and SDA 6(2)(b).
(4). Barber and Marshall, concerning discriminatory pension ages and compensation limits, respectively, demonstrate the enormous significance of ECJ judgments nationally.
(5). Previous cases had tried to make a comparison with a sick man (Hayes v Malleable Working Men's Club [1985] ICR 703).
(6). Especially in the areas of retirement, pregnancy, part-timers and compensation. Sex Discrimination Act 1986, and Sex discrimination and Equal pay (Remedies) Regulations 1993, Employment Protection (Part-time Employees) Regulations 1995. Also regarding pay, the Equal Pay Act 1970 has been amended by the Equal Pay Amendment Regulations 1983. Some of the amending provisions have been consolidated in the Employment Rights Act 1996.
(7). Relevant provisions are the Council Resolution on the protection of the dignity of women and men at work (OJ No C 157, 27 June 1990), Commission Recommendation on the protection of the dignity of men and women at work (91/131/EEC). The latter states that unwanted conduct of a sexual nature may sometimes be an infringement of Council Directive 76/207/EEC and recommends member states to take action to ensure that the Code of Practice on measures to combat sexual harassment is implemented in both the public and private employment sectors. Note that in Grimaldi v Fonds des Maladies Professionelles C-322/88 [1990] IRLR 402 the ECJ, referring to EC Recommendations, stated that 'it needs to be emphasised that the acts in question could not be considered to be lacking in legal effect. The national courts are bound to take the recommendations into consideration in order to decide disputes submitted to them, in particular where they clarify the interpretation of national provisions adopted in order to implement them or where they are designed to supplement binding Community measures.'
(8). The Race Relations (Remedies) Act 1994 removed compensation limits from race discrimination cases following the ECJ decision in Marshall (No 2) and the Sex Discrimination and Equal Pay (Remedies) Regulations 1993. For discussion of proposals to combat race discrimination within the EU see Bell & Waddington (1996); Barnard (1997) especially at p 281, concerning the new Article 6a, the proposed general non-discrimination clause, of the draft Amsterdam Treaty (CONF/4001/97, 19 June 1997) which gives the power for the EU institutions to 'take appropriate measures to combat discrimination based on sex, racial and ethnic origin, religion or belief, disability, age or sexual orientation'.
(9). The PHA allows a civil as well as a criminal action where a person pursues a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other (ss 1 and 3). Harassment is not confined to sex or race and damages may be awarded for anxiety as well a financial loss. See comment at EOR No 73. May/June 1997. The Criminal Justice and Public Order Act 1994 s.154 only created an offence of harassment.
(10). Since the RRA s.4 and the SDA s.6 make discrimination unlawful 'in relation to employment by him' the main action will lie against the employer as principal or vicariously. These actions will only succeed against a harassing employee if the employer could be held responsible under RRA s.33 and SDA s.42.
(11). The court in Irving did not specifically address the scope of the relevant section and applied the common law test for vicarious liability. Buckley (1997) suggests that this case has been given a mistakenly wide application in subsequent cases and that the ruling was dictated by those particular facts.
(12). In practice race discrimination cases have benefitted 'vicariously' from EC sex discrimination law. For example the rise in compensation limits. But see Adekeye v The Post Office.
(13). The waitresses were subject to a series of racial and sexual remarks from both Bernard Manning and the audience, including questions such as 'darkies are good at giving blow jobs'.
(14). A claim may still be based on the 'grounds of race' where the discrimination occurs as a result of the constructive dismissal of a white person because of their objection to racist policies. See Showboat Entertainment Centre Ltd v Owens [1984] ICR 65, and, more recently, Weatherfield Ltd T/A Van and Truck Rentals v Sargent (1997) EAT Transcript EAT/1414/96.
(15). Similarly in James Lord Bridge of Harwich drew the distinction between s.1(1)(a) which is concerned with disparate treatment whereas s.1(1)(b) is concerned with disparate consequences.
(16). After discussing Porcelli, the EAT in Burton distinguished the circumstances. 'There is no doubt that the intolerable circumstances to which the employees were exposed had a sexual context but the reason that they were exposed to that intolerable situation which affected them because they were women was not on account of their being women; the consequences of working with Mr Clarke [who previously harassed them] was no doubt a detriment to them as women; but they were not required to work with Mr Clarke because they were women'. So the case failed because the complaint did not meet the definition in s.1(1)(a).
(17). Even in pregnancy cases this test remains, although the 'but for' test applies to 'pregnancy' rather than 'sex'. (See Cox 1997, p 24)
(18). McColgan (1995) discusses Stewart and considers how treatment may be defined by the different effect that the poster showing a nude woman may have on a woman or on a man. Skidmore (1997) says that the courts have readily concluded 'less favourable treatment' but 'the difficulty in locating sexual harassment in discrimination law has been to persuade the courts that it was 'on the grounds of sex'. The focus should be on the victim's perception and experience.
(19). Sometimes 'harassing' behaviour, because of the individual circumstances, may not be considered to be a detriment or relate to the employment. See cases such as Wileman v Minilec Engineering [1988] ICR 318 and Snowball v Gardner Merchant [1987] ICR 719 which indicate that the woman's own conduct and attitudes may be relevant. This is illustrated by two recent tribunal decisions. The first held that a woman who had actively encouraged the antics of a male stripogram arranged for her birthday could not later claim sexual discrimination Steele v Optica Ltd Case No: 20614/95 15 October 1996 and the second the case of Fullbrook v (1) Anbryn Properties Ltd and (2) Allen case No:8125/96 4 Oct 1996 where an evident detriment arising from harassment did not amount to sex discrimination for the purposes of the SDA where the parties had been lovers. These cases are summarised in the EOR Discrimination Cases Digests No.31 Spring 1997 and No.32 Summer 1997 respectively.
(20). When questioned about the structure of actions under the proposed SDA John Fraser (The Under-Secretary for Employment) explained - '[The SDA s.6] does not create an unlawful act. It is the application of...[the definition of the clauses defining discrimination] to situations covered by subsequent parts of the Bill. There needs to be a combination of discrimination, as defined in [SDA s.1] applied to situations which are described in the later part of the Bill.' Hansard 26 March 1975, House of Commons, Second Reading Sex Discrimination Bill, 513.
(21). In Burton at p 600 the court gave the example of a bus or train conductor.
(22). In Carter v West Cliff Hall Sidmouth Ltd COIT Case No: 31165/90 a tribunal held that prompt action will not in itself provide a defence where the employer is vicariously liable. (See IDS Brief 584, 8) The same principles undoubtedly apply where liability is direct and such considerations are relevant to whether the employer subjects the employee to the harassment. There is no such defence once discrimination is established.
(23). Under RRA s.2 and SDA s.4 victimisation is defined in terms of 'less favourable treatment' because the victim has alleged a contravention of the relevant Act.
(24). See EC Code of Practice on Protecting the Dignity of Women and Men at Work, EOC Code of Practice for the Elimination of Discrimination on the Grounds of Sex and Marriage and the Promotion of Equality of Opportunity in Employment (SI 1985/387) and CRE Code of Practice for the Elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment (SI 1983/1081). In the CRE (1995) at p 16, the following comment is given on the case of Graham v Royal Mail and Nicholson (1993) concerning vicarious liability 'The tribunal specifically commended Royal Mail on its policy and the speed with which it had acted upon it. The case is noteworthy because, even if the tribunal had found racial discrimination, it is unlikely that it would have held Royal Mail liable for its employees' discriminatory actions.' See also Skidmore (1997).
(25). The Renton Committee (1975) discussed the fact that interpretation influences drafting (para 19.3) although this committee proposed that legislation should be drafted in a less complex form and be subject to a purposive approach to legislation (para 19.28), they added at para 19.41
'The real problem is one of confidence. Would Parliament be prepared to trust the courts? We refer again to the evidence given to us by Lord Emslie and Lord Wheatley: "It is probably the case that legislation in detail is resorted to because Parliamentarians harbour the suspicion that judges cannot be trusted to give proper effect to clear statements of principle. This, with respect to them(the Parliamentarians), is wholly unfounded".'
It, however, reflects Parliaments purpose in agreeing the wording of legislation at the time.
(26). Both acknowledge that discrimination needs to be tackled on a voluntary and administrative basis and that the law needs to be drafted so as to avoid ambiguity. See, for example, White Paper (1974) para 21 and White Paper (1975) at para 25.
(27). Mr Roy Jenkins (the Secretary of State for the Home Department) said 'The relatively fine distinction between nationality and national origin created an obvious pretext, a gap..' (Hansard (1975-76) Vol 906, 1552).
(28). If Waters had applied to a tribunal to complain about the sexual harassment at an early date, albeit that it was bound to fail, then any retaliatory action by the employer could have been caught under s.4(1)(a) (victimisation because a person has brought proceedings).
(29). Note that a tribunal has asked the ECJ for a preliminary ruling in the case of Coote v Granada Hospitality Ltd as to whether refusal to grant a reference for a former employee who brought a sex discrimination claim is contrary to EC law. IRLB (1997) refers at p 15.
(30). In Litster the House of Lords was prepared to add words to meet the required purpose in a case involving the transfer of undertakings. The principles in this case were not dissimilar to those in Adekeye.
(31). SDA s.7(3) extends the GOQ to where only some duties of the job fulfil the requirements of s.7(2). S.7(4) provides that the GOQ does not apply where the employer already has female employees to carry out the duties and it is reasonable, given factors such as the number of female employees, to expect them to perform those duties.
(32). Bracebridge, like Insitu Cleaning Co v Heads [1994] IRLR 3, stated that a single act of harassment if sufficiently serious could found an action.
(33). From the point of view of interpretation, the common law itself provides for plenty of scope in the area of harassment. The implied contractual duties of an employer to look after his employees health and safety at one end and maintain trust and confidence at the other have great scope for such protection. See for example Johnstone v Bloomsbury Health Authority [1991] IRLR, CA; Walker v Northumberland County Council [1995] 1 All ER 737; Bracebridge at p 6; and Stewart as examples of constructive dismissal. For discussion of harassment as a tort see Khorasandjian v Bush [1993] ALL ER 669, especially Dillon LJ at 678; Thomas and Others v National Union of Mineworkers (South Wales Area) and others [1986] I Ch.20 especially Scott J, 56-65; and Allen (1996), p 16.
(34). Hepple et al (1997) state that 'It is also important that sexual harassment should expressly be made unlawful, instead of complainants having to rely as at present on a comparison of the treatment of men and women subjected to harassment... The comparative approach is quite unsuited to the wrong of sexual harassment.'