Appeal No. UKEAT/0288/10/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 December 2010

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MS K BILGAN
MS N SUTCLIFFE

MS H B CONTEH	APPELLANT

PARKING PARTNERS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS ALTHEA BROWN
(of Counsel)
Instructed by:
Southwark Law Centre
Hanover Park House
14-16 Hanover Park
Peckham
London
SE15 5HG
	
For the Respondent	MR MARTIN WEST
(Representative)	

SUMMARY
HARASSMENT – Conduct

Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of others whom her employer did not control, in what circumstances is that employer liable to her for damages for discrimination or harassment on the grounds of race?  An argument that the employer of a Claimant subject to overtly racist abuse and hostility should be held liable for discrimination because the environment thus created was inherently racist and he adopted it by requiring the employee to continue to work in it was rejected by an Employment Tribunal, and that decision was upheld.  Consideration was given to whether and if so when an employer’s failure to ameliorate a hostile environment could potentially give rise to a claim under s.3A of the Race Relations Act 1976.

THE HONOURABLE MR JUSTICE LANGSTAFF
Introduction
1.	Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of others whom her employer did not control, in what circumstances is that employer liable to her for damages for discrimination or harassment on the grounds of race?  This is the question raised by this appeal from a decision of the Employment Tribunal at London (South), reasons for which were delivered on 11 March 2010.  The Tribunal dismissed claims made by the Claimant employee for direct discrimination on the ground of race and for racial harassment.

The Facts
2.	The facts drawn from the Statement of Facts by the Tribunal are essentially these.  The Claimant is a black African female born in Sierra Leone.  She was employed by the Respondent employer from 16 February 2009 as a customer car park attendant working in a car park beneath the St George’s Residential Development on the Albert Embankment in Southwark.  The employer is a company which carries on business providing car parking facilities, including that at the car park in the development.

3.	She was employed to work two 12‑hour shifts on Saturdays and Sundays.  She worked alone.  Access to and egress from the car park was by season or daily ticket.  People who visited or worked at a marketing unit for St George’s, which was still in operation at the relevant time, were dispensed a ticket on entry to the car park which the marketing unit had a facility to validate so that the individual could leave the car park without having to pay.  The validation machine in the marketing unit did not always work.  Problems were encountered with the validation of some tickets, in which case they had to be validated by the car park attendant in the office next to the exit lane.  The Claimant had standing instructions not to allow anyone to leave the car park without such a validated ticket.

4.	On the evening of 14 March 2009, the Claimant was on duty.  A member of the marketing staff did not have a validated ticket to leave the car park and the Claimant told her she could not do so.  The member of staff concerned was in fact the manager, Terry Wrightson.  The following morning another member of the marketing staff came into the Claimant’s office.  This woman, called “Carolanne”, was said by the Claimant to have started swearing at her that she had been rude to her boss the day before, and an altercation ensued.  In the course of that, Carolanne was alleged to have said that “The fucking bloody machines are not working and who is paying your fucking bloody wages?”, pointed to the sign on the wall and answered the question by saying, “St George’s, you fucking stupid black African bitch”.  She went on insulting the Claimant, eventually letting herself out and slamming the door.

5.	A further incident took place that same evening when both Miss Wrightson and Carolanne, deliberately it would appear, blocked the exit barrier to outgoing traffic for about 15 minutes, shouted and argued with the Claimant.  

6.	These matters were reported by the Claimant to her employer.  She had an immediate manager above whom were two tiers of management, Mr Shipley being the top.  Mr Shipley, to whom the matters were reported on the Monday, then placed a call to Miss Wrightson and spoke both to her and to Carolanne.  They denied that there had been any such abuse.  Although he attempted to make further arrangements to see both, these were not followed through, it would appear, by them.

7.	He had to consider whether he should speak to managers above their level in St George’s.  He was concerned, so the Tribunal found, that because of the relationship between the employer and St George’s they could decide who they wanted on site, and as there had been no previous recorded complaint of abuse, they might ask that the Claimant be removed from post.  There were no alternative jobs for her to take up with the Respondent.  He was unwilling to rock the boat and knew he had no power or authority to take action against the women concerned.

8.	He did not, however, leave matters there.  He did review the CCTV footage which covered the incident, though sadly without sound, which appeared to show Carolanne looking angry and jabbing her finger at the Claimant, but the Claimant worthily not reciprocating.  He felt that, having reviewed that, he had nothing strong enough to prove that an employee of St George’s had conducted herself in the way in which the Claimant had alleged, though he did not disbelieve the Claimant.

9.	He decided to make arrangements to avoid further unpleasant contact between the marketing staff and his car parking staff so far as was possible.  This was done by obtaining the first names of all the current members of marketing staff, making a list of persons who were to be let out of the car park free of charge, whether or not their ticket had been validated properly (there were seven names including Carolanne and Miss Wrightson) and who should not be requested to complete a manual barrier raise form as would otherwise have been the case.  Unfortunately, although that was sent by email to Miss Wrightson and to others, it did not come to the Claimant because Mr Shipley thought she had no email address.  She first became aware of it when Carolanne, in similar trenchant terms to those she had used before, pointed it out to her unpleasantly.

10.	Against that background the Tribunal summarised the action which the employer had taken at paragraph 52 of its decision.  It said that it had taken the steps we have mentioned, but went on to say what the Respondent did not do.  That was,

“(1) speak to other members of its staff to explore whether there was any history of abuse or earlier instances of abusive conduct (2) speak to more senior managers at St George’s or (3) speak to the Claimant after the event to explain what had been done or was proposed to be done and how the new working practice would operate for her benefit.”

11.	Those, that is the failures to do those three things, were claimed by the Claimant to be acts of discrimination and to be less favourable treatment both on the grounds of her race and victimisation following her report that she had been subject to racial abuse.  She complained that an environment had been created at work which constituted harassment within the Race Relations Act 1976.  We therefore turn to the provisions of the legislation which are central to this case.

The Legislation
12.	In the Act as it was applicable to the facts we have set out at the time, section 1 of the Race Relations Act 1976 provides:

“(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—
	(a)  on racial grounds he treats that other less favourably than he treats or would treat 	other persons...”

13.	By section 3A the Act deals with harassment:

“(1)  A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of—
	(a)  violating that other person’s dignity, or
	(b)  creating an intimidating, hostile, degrading, humiliating or offensive environment for 	him.
(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.”

The Tribunal Decision
14.	The Tribunal here was plainly dealing with the actions of persons over whom the employer had no direct control.  The employer was a contractor to the employer of those persons.  As such, the employer of the Claimant could not be held vicariously liable for the actions which they took.  The Tribunal dealt with direct discrimination in paragraph 54.  It took the view that in relation to discrimination the Claimant had proved facts that could amount to race discrimination by the Respondent - this might be considered a surprising finding but the Tribunal made it.  It then considered the explanation given by the Respondent. 

“The Tribunal were unanimous that, although not wholly satisfactory, the steps taken by the Respondent would not have been any different had the complaint been made by any member of its staff and whether the complaint had been made in relation to racial abuse or otherwise.  It was not satisfied that, had a complaint been made by a white female member of staff of racial or non-racial abuse, the Respondent would have acted any differently.  The Claimant has not, therefore, been subjected to any less favourable treatment and her complaints that she was, on the ground of race or by reason of a protected act, are not well founded and are dismissed.”

15.	The Tribunal then turned to look in slightly greater detail at the complaint of harassment.  It must be remembered that the allegation that the complainant had been subject to harassment arose out of precisely the same facts alleged against the employer as had the allegation of direct discrimination.  It considered the definition of harassment in section 3A.  It considered whether the definition of “conduct” - that is, engaging in unwanted conduct - could include a lack of conduct; that is, inaction.

16.	Basing itself on the possibility that such inaction as shunning a person or sending him or her to Coventry might be “conduct” it concluded that, in an appropriate case, inaction could amount to conduct.  It held (paragraph 57) that although the environment had been created by the action of third parties, it was arguable that inaction could amount to the creation of such an environment, if by “creation” one could include the continuation of a proscribed environment.

17.	Then it turned to whether or not the conduct complained of was on the grounds of the Claimant’s race.

“58. It was the Tribunal’s view that the actions of Mr Shipley were not motivated by the race of the Claimant.  He would have conducted himself in the same way whatever the race of complainant.
59.  But a further issue arises in relation to the expression ‘on grounds of race’.  Does it apply not only the motivation of the alleged harasser (sic) but to the subject matter of the complaint.  Was Mr Shipley engaging in unwanted conduct on the grounds of race because the complaint made by the Claimant was of racial abuse.  Although a difficult area in respect of which there appeared to be no authority, the Tribunal were unanimous that it had first to be satisfied that, had Mr Shipley taken the steps referred to above, it would have brought the hostile environment to an end.  There is no certainty that such would have been the case.  Indeed it may have made the situation worse.  The hostile environment appears to have continued albeit was less severe after the initial incident had occurred.  There were no instances of racial abuse although there was some gesticulation as the aftermath of the initial incident.  Had the Respondent taken the action above it is not certain that the adverse environment would have come to an end so that its continuation was not caused by the Respondent but by the original perpetrators of the abuse.  On that basis, therefore, it cannot be said that the Respondent had created the environment and it is unnecessary to determine whether or not Mr Shipley was motivated on racial grounds simply because the subject matter of the complaint was racial abuse.  The racial harassment claim is therefore not well founded.”

18.	It went on to express a view with which we entirely concur, that complaints of racial abuse are matters of utmost gravity and to be taken seriously.  It is plain the Tribunal had a sympathy for the Claimant and the unfortunate position in which the actions to which on the evidence the puerile and unpleasantly unlawful conduct of the staff of St George’s had exposed her.  We share that view.  However, this case cannot be decided simply upon sympathy for her position.  It has to be determined upon matters of law.  We turn therefore to the law and the submissions that were made to us upon it.

The Appellant’s Case
19.	What Ms Brown submitted was that the Tribunal had applied the wrong legal test in concluding that there was no liability because the actions of Mr Shipley were not motivated by race.  That was because it had failed to conclude that, through the very failure to act, the employer Respondent had created the environment whereby the Appellant had been subjected to and continues to be vulnerable to explicit and implicit racial abuse.

20.	These submissions were essentially based upon a reading of the case of James v Eastleigh Borough Council [1990] 2 AC 751 HL (a case in which “old age pensioners” were admitted free to a swimming pool, and hence women under 65 got in free but men otherwise in the same circumstances did not).  She maintained that there are some actions which are inherently discriminatory.  The criterion applied for entry to the swimming pool in James was such a criterion.  In such a case it is unnecessary to enquire as to “the reason why” an alleged discriminator has acted as he or she did.  That would otherwise be the approach: see the speech of Lord Nicholls of Birkenhead in The Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48; [2001] ICR 1065, in particular at paragraph 29.

21.	She maintained that the nature of the abuse to which the Claimant was, on the evidence before the Tribunal, subject, was such that it was inherently an act of race discrimination.  To take no action about it was thus necessarily, she maintained, inherently to adopt or be part of that act, and was itself therefore necessarily racist.  She maintained that a similar argument applied when one came to the question of direct discrimination.  In both cases, therefore, the Tribunal here did not need to and was wrong to consider the reason why Mr Shipley had taken the approach that he did.  Because it related to conduct which was proscribed as discriminatory by statute, he did not have the option to be inactive.  If he took no action his inaction was inherently and self-evidently discriminatory.

22.	She maintained that the inaction had inevitably caused or created the environment within which the Claimant had to work.  There was a duty arising from the employment relationship resting upon the employer to ensure that an employee was not exposed to risks, the type of which might cause harm, such as the corrosive effects of racist abuse upon the integrity of the personality; that it was entirely foreseeable that inaction would permit the continuation of racist abuse, and that to fail to take the steps which the employer did necessarily caused, i.e. created, the environment about which the Claimant complained.

23.	She drew our attention to the case of Gravell v The London Borough of Bexley EAT/0587/06.  That was a case in which a Tribunal had struck out a claim brought under section 3A of the Race Relations Act.  The Claimant’s case was that her employer had a policy to ignore racist comments from customers at the housing department where she worked, and that she was prevented by that policy from telling customers that any such remarks were simply unacceptable, a consequence being that she had to listen patiently to racist comments.  The Claimant also complained that she had received a text from a work colleague to her private mobile telephone which conveyed a racist joke and that further racist jokes had been sent to her similarly some three weeks afterwards, and that when she complained about them her employer took no action.

24.	HHJ Peter Clark came to the conclusion that, because he was considering an application to strike-out the claim as unarguable, he had to ask whether there might be a reasonable argument that, on these facts, the employer might be found liable for a claim of harassment contrary to section 3A.  He commented that there had been no decided case on the point (see paragraph 14).  He did not himself resolve that issue of law, nor purport to do so; he merely held that it was arguable.  He dealt with the text messages separately.  The result was that he directed that the Tribunal should continue to hear those allegations.

25.	It was argued before him that the effect of the House of Lords decision in Pearce v Governing Body of Mayfield Secondary School [2003] UKHL 34; IRLR 512 was to disapprove the decision of Burton v De Vere Hotels [1996] IRLR 596, where the court had held that an employer was liable for exposing members of staff to the racist jokes of Bernard Manning.  He concluded that it was arguable that the change in the law since those cases, to introduce section 3A of the Race Relations Act, might mean that the considerations there expressed were not any longer necessarily applicable so as to defeat the claims. But he did not ultimately decide the point, merely that it was arguable.  Pearce was relied on here by the employer: Ms Brown argued we should take the same approach to it as did HHJ Peter Clark in Gravell.

Discussion
26.	First, it is axiomatic that on an appeal to this Tribunal we have to accept faithfully the findings of fact to which the Employment Tribunal has come, unless it can be argued against the very high hurdle which exists in such claims that its conclusion is simply perverse.  Secondly, the starting point in what is governed by a statutory regime is the statute itself.  We shall deal with section 3A first.  These comments might be made about the section.  First, the Tribunal has to identify what is the unwanted conduct in which the employer is alleged to have engaged.  If the conduct is inaction then it has to be shown that action was wanted.  The Tribunal here did not address that point directly, but we shall assume that action was wanted, not least because the Tribunal recorded that the Claimant herself complained to the police about what had happened, and plainly therefore wanted something to be done.

27.	Next, it must be shown that that conduct has, in this case, the effect - though it may be, in other cases, a purpose - as set out by section 3A.  That is that inaction has here the effect of creating the proscribed environment.  That is a causation question.  Here it is worth considering the word which opens sub-paragraph (b), “creating”.  Parliament determined to use that word as opposed to an expression such as “causing”.  If a word such as “causing” had been used, it might be plain that Parliament had intended that the test of causation usually applied in tort claims would apply here too; that is, as is well established at common law, that anyone would be taken to have caused a result if they had caused or materially contributed to it.  “Creating” is a word which, so far as we know, has no such history.  It remains unexplored in case law.  The use of it suggests to us that the focus is upon what causes the environment to begin to be as it is.

28.	However, we are satisfied by the arguments of Ms Brown that creation does not have to be a matter of an instant.  What must be looked at is the environment, and then the question be asked: how was that environment created?  Creation may of course take place as a matter of an instant; but it may take place over time.  It may be that third party behaviour has created the environment in part, but the actions of an employer, to whom those third parties are not responsible, has made it worse, in which case the environment might be said to have been created by the actions of both.  The extent to which the employer had by his actions assisted in that process of creation would be relevant when one came to the question of compensation, but not for the purposes of liability.  Since the process of creation envisages a positive change in circumstance, can inaction ever be said to create an environment?

29.	An example would be where a failure to act when an employee reasonably required that there be action had itself contributed to the atmosphere in which the employee worked, as for instance where she or he felt unsupported, to the extent that the failure to support him or her actively made the position very much worse, effectively ensuring that there was no light at the end of the tunnel in remedy of the situation with which, as a result of the actions of others, he or she then faced.  In exploring that as a matter of theory we do not suggest that such cases will be common.  It is perhaps unlikely that they will be readily found and an Employment Tribunal should only conclude that such has happened if there is cogent evidence to that effect; but we can see it as a possibility which is covered by the wording of the statute. We have greater hesitation in concluding however that “creating” is apt to include a case where all that can be said against an employer is that he has failed to remedy a situation brought about by the actions of others for whom he is not responsible.

30.	The “unwanted conduct”, as it seems to us, therefore can (but not necessarily will) include inaction: but that conduct has to be taken on the grounds of race or ethnic or national origins if it is to create the hostile environment and thereby come within the heading of harassment.  Thus, if inaction occurs because, for instance, the relevant person in the employment of the employer is ill, or for instance because the office is so completely inefficient as to fail to deal with something, or for various other reasons which can easily be imagined which have nothing to do in themselves with race or ethnic or national origin, then the inaction, however regrettable it may be, is not on the grounds of race or ethnic or national origin.

31.	Ms Brown’s argument, as it seems to us, places too much weight upon the nature of the conduct of the third parties.  Assuming that third party conduct is to be taken as inherently racist, which must depend on the particular facts of any particular situation, does that mean that a failure to deal with it is itself inherently racist and therefore must be taken to have been itself on the grounds of race?  The question nearly answers itself despite Ms Brown’s persistent submissions, but in any event she too drew back from the conclusion which would inevitably follow from her argument that if, for instance in this case, Mr Shipley had had a heart attack which hospitalised him immediately after having had the complaint from the Claimant, and that that had been in truth the reason for his not dealing with the complaint, nonetheless he would have to be condemned and his employer with him as having acted in a racially discriminatory manner by subjecting the Claimant to racial harassment.  That would be too far, but she acknowledged it was the result of her primary submission.  It demonstrates to us that that submission was in error.

32.	If there is a need to deal with racist conduct committed by third parties, a failure to deal with that need is distinct from the need to deal with it.  It is the failure which has to be the focus of the Tribunal’s attention.  So it was here, and the Tribunal was satisfied, as we have recorded, that there was nothing remotely racist about the failure of Mr Shipley.

33.	Identifying then as we do that section 3A requires a Tribunal to focus upon the motivation - that is the reason why, not the motive but the motivation - of the employer and secondly, that it must focus upon the question of causation, we turn to that latter.  The Tribunal may not have dealt elegantly (at paragraph 59) with the point with which it was grappling.  The conclusion it came to as a matter of fact and judgment, however, was clear: that what Mr Shipley failed to do did not make, as they put it, the situation worse.  In other words, it did not - if one uses the normal language of causation - cause or contribute to the environment.  On the test that we have regarded as appropriate it did not create, in the sense of causing in the first place or adding to, the intimidating, hostile, degrading, humiliating or offensive environment.  Accordingly the Tribunal here had concluded as a matter of fact that the environment was not in any sense caused by the inaction of Mr Shipley, and in any event the inaction had nothing to do with the race of the Claimant.

34.	We turn to look at the decision as to direct discrimination.  Direct discrimination involves a comparison between the way in which an employer treats someone of the race of the Claimant and someone of a different race or different ethnic or national origins.  Here the Tribunal was satisfied that the employer would have shown the same degree of inaction in each case.  Ms Brown, in her submissions, suggested to us that an employer might fail to deal with a complaint of racial abuse simply because it was too difficult given the subject matter.  She wished us to characterise what had happened here as being just that.  If we had done then there would be much to be said for her argument that inaction on a complaint because the complaint was itself one of racial harassment would be inaction on the grounds of race.  That complaint would be dealt with in the way it was because of the racial element underpinning it.  Race would be the distinction between that and other complaints which on this approach would not be dealt with in the same way.

35.	Here, the Tribunal did not approach the case as being one in which the matter had simply been too difficult to deal with because it was a complaint relating to race.  It accepted or found that the reason for Mr Shipley’s failure to take the steps advocated by the Claimant was that he was unwilling to “rock the boat”.  This it found subsequently had nothing to do with the race of the Claimant nor the fact that the complaint was itself one relating to race.  The decision of the Tribunal makes it perfectly clear that, whatever the nature of the abuse had been, he would have taken the same lack of action to the extent that he did.

36.	We have concentrated in our remarks upon what Mr Shipley did not do.  It must be remembered in fairness to him that what he did do was, as Mr West submitted to us, significant, prompt, and it had the effect of reducing the extent to which the environment had been offensive, humiliating, etc.  Far from creating the environment, it went some way towards ameliorating it.  Such would inevitably follow from the Tribunal’s findings of fact.

37.	We have not, in the event, found it necessary to dig deeply into those authorities from the analogous but different area of liability in negligence for the actions of third parties.  Suffice it to say that the Home Office v Dorsett Yacht Co Ltd [1970] AC 1004 and the case of Smith v Littlewoods Organisation Ltd [1987] 1 AC 241 demonstrate that in terms of the common law, an alleged wrongdoer will not be responsible for the actions of a human third party merely because those actions are foreseeable.  More has to be shown, for instance that it is such activity as is highly likely to occur, or that it is the reasonable and probable consequence of the third party behaviour; and there must be a sufficient proximity between the alleged tortfeasor and victim, arising out of some relationship with the third party that calls for the alleged tortfeasor to take action to prevent it (as by ensuring that Borstal boys under the toretfeasor’s care do not escape into a marina, or that property which is highly likely to be set on fire by vandals if they get in to it is kept reasonably secure against their entry).  We are content not so to do because it seems to us that, in this statutory area, the extent of liability has necessarily to be determined by focussing upon the statute with such assistance as the words of that statute can give us, and there seems little to be gained from the citation of common law cases.

38.	For the reasons we have given we are satisfied that the Tribunal here were well within the four corners of the statute in making the findings of fact which they did, which cannot be sensibly attacked and are simply not perverse, and that therefore the appeal on both grounds must fall and is dismissed.