MR A C REDFEARN v SERCO LTD T/A WEST YORKSHIRE TRANSPORT SERVICE [2005] UKEAT 0153_05_2707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0153_05_2707Case No Appeal No. UKEAT/0153/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A C REDFEARNAPPELLANTSERCO LTD T/A WEST YORKSHIRE TRANSPORT SERVICERESPONDENT
Before
Mr Justice BurtonDate 27 July 2005
[1]APPEARANCES For the Appellant MR JOHN BOWERS QC Instructed by: Messrs Mitchells Solicitors 2 Peckitt Street Clifford Street York YO1 9SF For the Respondent MR BRIAN LANGSTAFF QC and MR CHRIS QUINN (Of Counsel) Instructed by Messrs Pinsent Masons Solicitors Dashwood House 69 Old Broad Street London EC2M 1NR SUMMARY Race Discrimination Claimant elected BNP councillor was immediately summarily dismissed for 'Health and Safety Reasons' on grounds that Asian patients and co-employees would be upset and/or hostile. ET found no discrimination on racial grounds (concluding that Showboat line of cases not relevant). ET erred in that(i) Showboat line of cases, involving broad definition of 'racial grounds', binding(ii) ET erred in failing to comply with the Nagarajan approach, and 'significant influence' of racial grounds. Remitted to different Tribunal. THE HONOURABLE MR JUSTICE BURTON (President) This has been the hearing of an appeal by the Claimant Mr Redfearn against the unanimous decision of an Employment Tribunal at Leeds, after a hearing on 11 November 2004, in a Judgment sent to the parties on 2 February 2005, to dismiss his complaint of racial discrimination both direct and indirect against his former employer, the Respondent Serco Ltd t/a West Yorkshire Transport Service, or WYTS.[2]The findings of fact by the Tribunal include the following: "3.3 The Claimant appears to have been a perfectly satisfactory employee and carried out his duties without any problem…" - those were, as we shall see, duties as a driver and as an escort in respect of the transportation of children and adults with physical/mental disabilities in the Bradford area - "until 26 May 2004 when an article appeared in the Bradford Telegraph and Argus which apparently identified the Claimant as a British National Party (BNP) candidate in the forthcoming local elections".[3]In those circumstances this "perfectly satisfactory employee" was, as will become clear, immediately and summarily dismissed by the Respondent, and although he was not entitled to unfair dismissal protection, because he had only been employed for a short period, he has brought a claim for unfavourable treatment, by reference to that dismissal, under the Race Relations Act 1976 ("The Act"). The occasion of the dismissal was upon its being known that he was standing, and was duly elected by the electorate of Bradford, as a Councillor representing the BNP.[4]The Tribunal set out the relevant parts of the constitution of the BNP in paragraph 3.4 of the Judgment, which reads as follows:
"3.4 The constitution of the BNP Eight Edition published November 2004 sets out in Section 1 its Political Objectives. We set out the first two objectives:- (a) The British National Party is a party of British Nationalism committed to the principle of national sovereignty in all British affairs. It is pledged to the restoration of the unity and integrity of the United Kingdom of Great Britain and Northern Ireland. It believes that the indigenous peoples of the entire British Isles, and their descendants overseas, form a single brotherhood of peoples, and is pledged therefore to adapt or create political, cultural, economic and military institutions with the aim of fostering the closest possible partnership between these peoples. (b) The British National Party stands for the preservation of the national and ethnic character of the British people and is wholly opposed to any form of racial integration between British and non-European peoples. It is therefore committed to stemming and reversing the tide of non-white immigration and to restoring, by legal changes, negotiation and consent, the overwhelmingly white makeup of the British population that existed in Britain prior to 1948"
. Section 2 of the BNP constitution deals with Membership:- "1) The British National Party represents the collective National, Environmental, Political, Racial, Folkish, Social, Cultural, Religious and Economic interests of the indigenous Anglo-Saxon, Celtic and Norse folk communities of Britain and those we regard as closely related and ethnically assimilated or assimilable aboriginal members of the European race also resident in Britain. Membership of the BNP is strictly defined within the terms of, and our members also self-define themselves within, the legal ambit of a defined 'racial group' this being 'indigenous Caucasian' and defined 'ethnic groups' emanating from that Race as specified in law in the House of Lords case of Mandla –v- Dowell Lee (1983) All ER 1062, HL." "2) The indigenous British ethnic groups derived from the class of 'Indigenous Caucasian' consists of members of: i) The Anglo-Saxon Folk Community, ii) The Celtic Scottish Folk Community; iii) The Scots-Northern Irish Folk Community; iv) The Celtic Welsh Folk Community; v) The Celtic Irish Folk Community; vi) The Celtic Cornish Folk Community; vii) The Anglo-Saxon-Celtic Folk Community; viii) The Celtic-Norse Folk Community; ix) The Anglo-Saxon-Indigenous European Folk Community; x) The Anglo-Saxon-Indigenous European Folk Community; xi) Members of these ethnic groups who reside either within or outside Europe but ethnically derived from them." "3) Membership of the party shall be open only to those who are 16 years of age or over and whose ethnic origin is listed within Subsection 2". Membership of the BNP is therefore open to whites only. The Claimant accepts that he is bound by the constitution as indeed the constitution suggests that he is and he also agrees that he "tows the party line".[5]Paragraph 3.5 of the Tribunal's Judgment reads as follows:
"3.5 Mr Geoffrey Binnington, General Manager of the Respondent, received a copy of a strong letter dated 27 May 2004 [ that is the next day after the news report] from UNISON to the acting Chief Executive Bradford City Council, shortly after that date. Paragraphs 1 and 2 of the letter stated: "
In the light of recent conversations I have had with various colleagues, I think it only right to make you aware of our concerns regarding the employment of a BNP candidate standing at the local council elections within WYTS", (the Respondent) "who are as you will be aware contracted to carry out services for the Council. Trade Union members employed at WYTS find his continued presence within the workforce to be a significant cause for concern, bearing in mind the BNP's overt and racist/fascist agenda. All employees, but particularly employees from the ethnic minority communities, find it unacceptable that their employer could contemplate continuing to employ an individual who is so fundamentally at variance to the views that most right minded citizens hold and given the multi ethnic and multi-cultural community within Bradford to which WYTS provide a public service – the issue obviously takes on a far greater significance. As an employer committed to equal opportunities, we are looking to you to take immediate action to ensure our members are not subjected to the kind racist hatred promoted by the BNP and its supporters". Mr Binnington also subsequently received a representation from GMB."[6]It seems there were also representations from other employees. Paragraph 3.7 of the Tribunal's Judgment records that:
" 70 to 80 per cent of the Respondent's passengers were of Asian origin as was 35 per cent of its workforce."
[7]In paragraph 3.10 of the Tribunal's Judgment there is recorded what then happened namely that the Respondent:- "…reached the view having taken legal advice, that to continue to allow the Claimant to remain an employee would raise significant difficulties." The Tribunal continued:- "It was felt that the Claimant's very public membership of , and representation for the BNP:-(1) Would present serious risk to the health and safety of employees of WYTS and all passengers transported by WYTS in the event that the buses operated by WYTS were attacked.(2) Would give rise to considerable anxiety amongst WYTS's passengers and in particular those relatives/carers entrusting vulnerable passengers to the WYTS's care, so as to mean that they would no longer be willing to entrust the transportation of those vulnerable passengers to the WYTS; and(3) Would potentially jeopardize the reputation of WYTS and its Group as a whole in that both existing and potential Public Sector clients and the wider general public may incorrectly associate WYTS/the Group with the BNP and its extreme policies."[8]On 30 June a meeting was convened with the Claimant and he was dismissed. A letter was produced at the Tribunal in unsigned form dated 30 June 2004, said to have been sent by Mr Binnington, the General Manager. That was all that was before the Tribunal. In fact, subsequent to the Tribunal, the original of that letter has been produced and it is materially different. The unsigned letter wrote as follows:
"Dear Arthur Following our conversation of today, I write to formally advise you that your employment will be terminated on the grounds of Health & Safety from today's date…with immediate effect…"
[9]And the signed letter simply said, after the opening:- "Following our conversation of today, I write to formally advise you that your employment will be terminated from today's date … with immediate effect…"[10]In any event, the Tribunal found that at the meeting on 30 June Mr Binnington had informed the Claimant that his employment was being terminated on the grounds of health and safety. That health and safety appears to have been put in three ways, by reference to(1) the fear of violence and/or anger by other employees hostile to the Claimant on the grounds of his being a BNP member, (2) the feared reaction towards the Claimant of Asian patients whom he might be caused to travel with or assist in the course of his work, which might cause them anxiety or anger, and (3) the more general aspect of annoyance or anger against the Respondent and/or the Claimant by virtue of his membership of the BNP.[11]The Claimant in fact it seems had for some period of time prior to his dismissal not been looking after or present with patients as a passenger escort of mini-buses, but had been a sole driver of buses without passengers, simply responsible for the mail, on the Respondent's behalf. There was no mention made of that fact, which appears to have been common ground between the parties, in the Judgment of the Tribunal.[12]The claim by the Claimant under the Act was by reference to both direct and indirect discrimination. And of course it does not at first sight strike the outsider as straightforward that someone who is a member of the BNP, which has the policies set out in the Tribunal's Judgment which we have recited, is making use race relations legislation in his favour. But, as will appear there are two important factors to appreciate in relation to the Act, first, that it is not of course an Act which can only be prayed in aid by those who as members of an ethnic minority, and secondly, as will appear, the definition of discrimination is, on the case for the Claimant, wide enough to cover what occurred here.[13]S1 of the Act covers both direct and indirect discrimination. So far as indirect discrimination is concerned, its definition has been amended by the Race Relations Act 1976 Amendment Regulations 2003 , pursuant to the Council Directive of 29 June 2000/43/EC ("the Directive"). No amendment has been made in respect of the definition of direct discrimination. The relevant section reads as follows:
"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; or..."
That is direct discrimination, and by s4(2) of the Act:- " It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-… (c) by dismissing him..." In this case it is alleged that there was direct discrimination by reference to unfavourable treatment, that unfavourable treatment being his dismissal.[14]So far as indirect discrimination is concerned, that is now governed by s1(1A) of the Act as amended, which reads as follows:
"A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection 1(B) [ which includes cross reference to s.4 which we have recited] he applies to that other a provision, criterion or practice, [very often abbreviated to PCP] , which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but - (a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared to other persons, (b) which puts that other at that disadvantage, and (c) which he cannot show to be a proportionate means of achieving a legitimate aim."
That is what is referred to as indirect discrimination.[15]We turn first to the Tribunal's conclusions dismissing the claim of direct discrimination. As we have earlier indicated, the basis upon which this Claimant relied to bring his case within s1(1)(a) of the Act is a broad definition of "on racial grounds". This has been established in a number of cases to which we shall refer. It is primarily founded on a case called Showboat Entertainment Centre v Owens [1984] IRLR 7 . That case was a decision of this Appeal Tribunal given by Browne-Wilkinson P, as he then was, and which itself was founded upon an earlier Court of Appeal case, in which the lead judgment was given by Lord Denning MR, Race Relations Board v Applin [1973] 1 QB 815.[16]In the Showboat case an employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer's amusement centre, and the tribunal at first instance had found that that was a dismissal "on racial grounds", notwithstanding that the dismissed employee was white. Browne-Wilkinson P said at paragraph 11 of his judgment:- "Therefore the only question is whether Mr Owens was treated less favourably 'on racial grounds'. Certainly the main thrust of the legislation is to give protection to those discriminated against on the grounds of their own racial characteristics. But the words 'on racial grounds' are perfectly capable in their ordinary sense of covering any reason for an action based on race, whether it be the race of the person affected by the action or of others."[17]At paragraph 15 Browne-Wilkinson P said, "We can, therefore see nothing in the wording of the Act which makes it clear that the words 'on racial grounds' cover only the race of the complainant." And in paragraph 19, after referring to Race Relations Board v Applin , and to an earlier decision to the same effect, also by this Appeal Tribunal, given by Kilner Brown J, Zarcynska v Levy [1978] IRLR 532, Browne-Wilkinson P concluded:
"There seems to be no stopping point short of holding that any discriminatory treatment caused by racial considerations is capable of falling within s1 of the 1976 Act."
[18]That decision in Showboat has been subsequently approved by the Court of Appeal, in Weathersfield Ltd v Sargent [1999] IRLR 94 , which was again a case again in which an employee had resigned, and was found to have been constructively dismissed, after having been given an unlawful instruction to discriminate on racial grounds against blacks and Asians. It was submitted before the Court of Appeal, consisting of Pill LJ, Swinton Thomas LJ and Beldam LJ that Showboat should be overruled, or alternatively distinguished. Pill LJ said that he agreed with the reasoning in Showboat, which he set out by reference, of course, to Browne- Wilkinson's P judgment, namely that the words on "racial grounds" were to be broadly construed; and he found that it was "justified and appropriate" to give a broad meaning to the expression racial grounds.[19]Swinton Thomas LJ thought that there was strength in counsel for the respondent's submission that s1(1)(a) might have been intended to be limited to the race of the complainant, but rejected that proposition, and accepted the Showboat principle of the broad construction of "racial grounds", (as did Pill LJ, and Beldam LJ, who agreed with both judgments).[20]He said this at paragraph 28:
" I do not think that it is helpful in a case such as this to try and ascertain the intention of a draftsman of the Act, or the intention of Parliament, because it seems to me to be unlikely that the circumstances that arise in this case were considered either by the draftsman or by Parliament. In my judgment it is more helpful to focus on the intention underlining the Act itself and the words used. The intent of the Act is to deter racial discrimination…"
But he then went on to agree in terms with Browne-Wilkinson P's words on the question of broad construction of the words "on racial grounds" in s1(1)(a).[21]All those authorities were put before the Employment Tribunal. What was not put before the Employment Tribunal, although it could have been, was a more recent decision of this Appeal Tribunal, given in a judgment on 21 June 2004 by Silber J in Carter v Ahsan (unreported) EAT/0907/03, which was not an employment case, but in which s1 of the Act was expressly in play, albeit that it was related to s12 of the Act, (to which s1(1)(a) also applies) relating to a body conferring an authorization or qualification needed to engage in a particular profession, namely in that case having one's name put on a panel of potential local council candidates. The claim was brought by a would-be candidate against the Labour Party, and his claim of direct race discrimination was upheld by the tribunal and on appeal.[22]His own race was Pakistani, but it was not suggested that the Labour Party had discriminated against him for that reason. The basis for the discrimination was said to be what were called 'Pakistani Muslim factors'. They were set out in paragraph 49 of the judgment of Silber J, and they related to the constitution and history of events arising out of the particular electorate, and of those who were prominent in it. Silber J found as follows at paragraph 73, after reciting Showboat :
"In our view there is no reason why the three Pakistani Muslim factors … cannot be regarded as "racial considerations" or "reasons …based on race."" 23. Before we turn to consider how the Employment Tribunal dealt with this case, it is important to reflect upon the nature of a claim of direct discrimination, and its structure. It is apparent from our reading of the very short s1(1)(a), which is much shorter than the relevant sections relating to indirect discrimination, that it is a very straightforward cause of action. If the unfavourable treatment on racial grounds is established, there is no defence of justification, such as arises in relation to indirect discrimination. Equally, although questions of motive may arise in looking at the facts as to whether there has been unfavourable treatment on racial grounds, if in fact there has been unfavourable treatment on racial grounds the goodness or badness of the relevant motive is entirely irrelevant. 24.This was made clear in a number of authorities, for example R v Commission for Racial Equality ex parte Westminster City Council [1984] IRLR 230, a decision of Woolf J, as he then was, in the High Court, particularly at paragraphs 20 and 21:- "
In this case although the employer's motives are wholly unobjectionable, he is clearly treating the black employee less favourably on racial grounds and is clearly guilty of unlawful discrimination under the Act." 25. Again in Din v Carrington Viyella Ltd, a decision of this Appeal Tribunal, Browne-Wilkinson P [1982] IRLR 281 makes this clear at paragraph 11:- "What has to be enquired into is the reason why a particular course was adopted: the question is was it on racial grounds?" And Browne-Wilkinson P deprecated any consideration of motive:- "It will be discriminatory even though the motive lying behind it did not necessarily involve a prejudice of a racial kind." This was also made clear in O'Neill v St Thomas More School [1997} ICR 33 per Mummery P, particularly at pages 46 and 47.[26]In those circumstances it is clear that, if those authorities govern, the issue is simply one as to whether the unfavourable treatment was "on racial grounds" - and we shall return to precisely what that means in a moment - and that the motive of the person who treated another person unfavourably on racial grounds is not relevant, if that be established.[27]The Tribunal addressed the Showboat line of authority in paragraph 5.2 of its Judgment. It said as follows:
"The authorities upon which the Claimant sought to rely … which are known as the Showboat line of authorities … in each case involved someone in a position of the Respondent asking someone in the position of the Claimant to carry out an unlawful act against someone in the position of the passengers/employees of the Respondent. We believe those authorities to be wholly inapplicable to a case of this kind."
[28]We are satisfied that that is not a sufficient addressing by the Tribunal, or a correct one, of the authorities which we have summarized, and Mr Langstaff QC, who has appeared, leading Mr Quinn (who appeared below), before us, has not sought to support that minimalist approach to distinguishing those cases.[29]Whereas it is true that, so far as the facts are concerned, the Showboat case itself and Zarcynska and Weathersfield all did arise in those particular circumstances, the founding case upon which they all relied, to which we earlier referred, Race Relations Board v Applin, was in fact a case relating to adoption, and Carter v Ahsan , which was not cited before the Tribunal, is plainly not in any way limited to the factual scenario which the Tribunal there refer to.[30]In any event it is quite clear that it is not possible to distinguish a binding line of authority by indicating that the facts in that line of authorities were different. That is not a way in which legal principles can be distinguished, unless of course the cases were restricted to their own particular facts, time and time again. It is quite clear to us that this was not the way in which the courts described the principles in the cases to which we have referred, and indeed the passages which we have quoted made it quite plain that the judges were not limiting themselves to the particular facts of the case, but were construing the words "on racial grounds" widely.[31]To seek to meet that difficulty Mr Langstaff QC put forward a proposition, which was of course not argued below, as to another way in which to seek to limit the wide wording of "on racial grounds" which has been approved by the Court of Appeal in Weathersfield, and which has been frequently applied in the Showboat line of cases, to which we have referred. He submitted that to adopt the wide definition of the words "on racial grounds" could allow a finding in favour of an employee in the following scenario, which he postulated hypothetically. He submitted that there could be an employee who had himself acted racially and discriminatorily towards a fellow employee, and yet who could claim the protection of the Act if an employer took steps against him as a result.[32]One example that arose in the course of argument was of a foreman who had treated black and white employees differently, and inappropriately and discriminatorily, and was then disciplined by his employer for having done so. Mr Langstaff QC submitted that that would be unfavourable treatment by the employer, and "on racial grounds" if those words are to be broadly construed, but the employer would have been doing so clearly not only with the best of motives but also with the purpose of furthering the intent of the race relations legislation. He submitted that if that example could fall within the definition of unfavourable treatment "on racial grounds" that would make a laughing stock of the legislation, and would be quite contrary to the intention of Parliament. He did not seek of course to suggest that that was on all fours with this case. But he certainly submitted that, if he was right that that incident should fall outside s1(1)(a) of the Act, so too should the Claimant's claim on the facts of this case.[33]Mr Langstaff QC recognized that, just as he could not support the broad-brush proposition of the Tribunal that it could simply ignore the Showboat cases, it was also not appropriate for him to contend that there could simply be open house for a Tribunal to decide, on the particular facts of a given case, whether the claim did or did not fall within the definition of "on racial grounds". That would clearly lead to total uncertainty. So he formulated, over the short adjournment, what we have called the 'Langstaff Test'.[34]He submitted that the following ought to be adopted by the courts as a principle which limits the otherwise wide words of "on racial grounds" in s1(1)(a). He submitted that less favourable treatment of a claimant is not "on racial grounds" where the treatment is because the claimant himself has acted, or is likely to act, in a way which treats others less favourably by reason of their race. A racial discriminator could thus not make a claim if he was penalized for such treatment, under s1(1)(a). If Mr Langstaff QC were right then he would submit that that this would apply on the facts to this case. He submitted that that proposition ought to be adopted for the following reasons.[35]First, that that, and that alone, would accord with the policy of the Act, which is intended to deter, and not to reward, racial discrimination. Secondly, he referred to the passage in Weathersfield, to which we have already referred, in the judgment of Swinton Thomas LJ at paragraph 28, (with which, as we have indicated, Beldam LJ agreed), and which he submits to be not inconsistent with the judgment of Pill LJ, in that while agreeing with Pill LJ so far as related to the wide definition of 'on racial grounds' Swinton Thomas LJ stated that it was clear that the intention of the Act was to deter racial discrimination. Thirdly, he submits that this is the only way to ensure that s1(1)(a) of the Act complies with the Directive which implemented the principle of equal treatment between persons irrespective of racial or ethnic origin, and he cited some of the very general preface to that Directive.[36]Finally, he submitted that to formulate such an exemption from the wide terminology of 'on racial grounds' would be consistent with the decided cases, because all of the decided cases of course required that a wide definition of "on racial grounds" in order to deter discriminatory conduct and the adoption of his test would not have prevented any of that conduct from offending against the Act.[37]Mr Bowers QC for the Claimant was succinct in his opposition to the proposal of adopting the Langstaff Test, but in our judgment his brevity was justified, and we accept the submissions that he made.[38]First, he submitted that what we would be doing if we adopted the Langstaff Test was legislating judicially. He did not submit that it was inappropriate for this to be done at the Appeal Tribunal level simply because the matter had not been argued below, although that might have been something he could have said. It has of course been given very careful consideration by leading counsel before us, albeit only during the course of argument, but he pointed out the great difficulty in "legislating" in this area – difficult enough for Parliament and the more difficult for a court, particularly when it is argued for a first time before an appeal tribunal, even if that appeal tribunal is one which has the benefit of lay members upon it. He pointed out the potential consequences of the suggested exemption, if it was to be regarded as an implied judicial reading down of the Act. He pointed out how there will be cases in which acts by some people, which some may regard as meritorious, and which are intended to assist in removing handicaps and disadvantages for the disadvantaged and the minorities, can yet be complained of as discriminating against others. Thus if those who can be said to have been treating another person discriminatorily cannot then complain of discriminatory treatment against themselves, there are bound to be difficult cases for which future exceptions, or exceptions to the exception, might have to be made; and that this kind of implied legislation in the race relations area cannot, and should not, be done 'on the hoof', and hence not by the Courts.[39]There is a real risk, he says, of guilt by association if, as Mr Langstaff QC made clear, it were intended to extend the Langstaff Test to the facts of this case, where no particular conduct, or particular belief, is ascribed to this particular Claimant. And questions of Human Rights would in that context be bound to arise.[40]He submitted, secondly, that there is no warrant in any of the authorities for the limitation of the wide words of "on racial grounds" and that if there is to be such limitation, it cannot be done by judicial reading down, but only by Parliamentary legislation.[41]Thirdly, he submitted that it is unarguable that this could be an automatic result of the passing of the Directive. The Directive leaves Member States to comply with it by adopting their own domestic legislation within a certain margin of appreciation. There has been no suggestion that the United Kingdom is in breach of its obligations under the Directive, and indeed the United Kingdom Parliament took steps, pursuant to the Directive, to amend the indirect discrimination legislation, but, notwithstanding the fact that Weathersfield antedates the Directive, no steps were taken to amend the direct discrimination legislation.[42]We agree that if some step is required to be taken to limit those who can take advantage of s1(1)(a) of the Act that can, and should, be considered by Parliament, and not by judicial legislation. The answer may lie, as Mr Bowers QC suggested, simply in the question of remedy. It would not, and may not, matter, except from the point of view of principle, if it is theoretically possible for a discriminatory or even racialist claimant to succeed under s1(1)(a) in complaining of action taken against him or her, if in fact no remedy followed. Mr Bowers QC pointed out both that the possibility of there being no remedy was canvassed in O'Neill by Mummery P and, more significantly, that, as Mummery P himself pointed out, the compensation that can be awarded under any of the discrimination statutes only arises to the extent, if at all, that compensation is just and equitable, and that the answer may well lie in the fact that a person such as has been postulated by Mr Langstaff QC, even if successful under s1(1)(a), would thus not receive compensation or any remedy.[43]In those circumstances we return to the decision of this Employment Tribunal against the background of the fact that it has failed to comply with binding authority of the Employment Appeals Tribunal and the Court of Appeal as to the broad construction of "on racial grounds" The conclusion of the Tribunal on direct discrimination, leaving aside the Showboat line of authorities, is dealt with extremely shortly. It reads as follows; "5.1 Insofar as direct discrimination is concerned we are satisfied that if any discrimination existed against the claimant it was not on racial grounds." We interpose that that is a somewhat strange sentence. Discrimination ordinarily means " "unfavourable treatment on racial grounds", and yet the sentence goes on to say that it was not on racial grounds, and thus on the face of it the sentence is a contradiction in terms. The only reconciliation that we can put forward is that the word "discrimination" was in fact this Tribunal's shorthand for "unfavourable treatment". And we continue the reading of the paragraph on that assumption. "We are satisfied that if there was discrimination, [for this we therefore read "unfavourable treatment"] it took place on health and safety grounds, which was brought about by the Respondent discovering that the Claimant's candidature as a BNP councillor, which automatically meant that the Claimant was a member of the BNP and also his subsequent election, having regard to the high preponderance of passengers and significant number of employees who were of Asian origin." 5.2 We further do not believe that the action taken against the Claimant because of the Respondent's concern in relation to its passengers and employees of Asian origin, gives the Claimant any grounds for suggesting that the Respondent directly discriminated against the Claimant…" Apart from the reference to Showboat , and the statement in paragraph 5.3 that: "We do not believe that the consideration of a comparator, real or hypothetical, in this case would take the Claimant any further" that is the extent of the Tribunals consideration.[44]It found consequently that the reason for the dismissal, if one can put it in unfair dismissal terms which this is not, was health and safety, and it did so notwithstanding the absence before it of what turns out to have been the correct letter, and without reference, as we have indicated, to the fact that, at any rate for a few weeks prior to termination of employment, the Claimant was not working with passengers/patients.[45]It is wholly clear from those paragraphs that the health and safety issues which are referred to are issues which arise directly out of the membership by the Claimant of the BNP, which the Tribunal has already found was a party which was open to whites only; and that the direct consequence, as the Tribunal found, of the membership, of that party was the health and safety problem "having regard to the high preponderance of passengers and significant number of employees who are of Asian origin", and this must be a reference to the possible anxiety suffered by these Asian passengers and employees – the latter being a reference to the 35% of employees who presumably might, like the passenger, be upset or anxious. There is no express reference to the employees who are not of Asian origin who might be roused to anger, as mentioned earlier in the Judgment. And then in paragraph 5.2 the Tribunal again makes entirely clear its conclusion that the action was taken "because of the Respondent's concern in relation to its passengers and employees of Asian origin."[46]Mr Bowers QC, who has appeared for the Claimant and did not appear below, has made three attacks on those findings. The first, namely that the decision that the dismissal was on health and safety grounds is perverse, is one which we leave aside, as he did, because it was not necessary to take the matter further in argument. The second submission was that even if the reason was health and safety, and accepting that finding, the reason for the health and safety was itself founded on racial grounds, as the Tribunal itself makes clear in paragraphs 5.1 and 5.2. His third submission was that in any event it was at least arguable, as a result of the way in which the Tribunal had put its findings, that health and safety was only one of the reasons, albeit that, had unfair dismissal been the issue, it would have been the principal reason.[47]It is in that latter context that he strenuously criticises the Tribunal for its failure to approach the question of racial discrimination correctly, by reference to the authority of the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 172. He points out the substantial distinction between the well established question in unfair dismissal, where it is necessary to find out what the reason or principal reason for the dismissal was, not just by reference to the statute but going right the way back to Abernethy v Mott, Hay & Anderson [1974] ICR 323, and race discrimination, where the test is succinctly set out by Lord Nicholls in Nagarajan at paragraph 19:
"If racial grounds…had a significant influence on the outcome, discrimination is made out."
[48]It is possible that, if anything, the law has moved further in this regard since the House of Lords, by virtue of the recent decision of the Court of Appeal in Igen v Wong [2005] IRLR 258 , but that decision may be inconsistent with Nagarajan , and it is sufficient for Mr Bowers QC's purpose to rely on Nagarajan . He submits that even if the Tribunal was entitled to find that the unfavourable treatment took place on health and safety grounds, this Tribunal was obliged to ask itself whether racial grounds had a significant influence on the outcome.[49]Having rejected, as we have, the Langstaff test and the propositions of the Tribunal in relation to the Showboat line of authorities, we must apply the binding authority of the Showboat cases to which we have referred, which requires a broad definition of 'racial grounds'. Mr Bowers QC submits that whether the reason was, at least in part, dismissal on racial grounds or whether the dismissal for the reason of health and safety grounds was itself founded on racial considerations, for the purposes of this argument this does not matter, if, in either event, racial grounds had a significant influence on the outcome: and that is the question that the Tribunal ought to have asked.[50]He submits that the very finding by the Tribunal itself, in paragraph 5.1 and 5.2, would indicate, by reference to "the high preponderance of passengers and significant number of employees who were of Asian origin" and "the Respondent's concern in relation to its passengers and employees of Asian origin", that racial considerations did play a significant influence in the outcome.[51]Mr Langstaff QC has sought to submit that the Nagarajan test in paragraph 19 of Lord Nicholls' speech does not arise if there has first been a finding on causation grounds as to why the complainant received less favourable treatment; see paragraphs 13 and 14 of Lord Nicholls' speech. If this Tribunal found why it was, and concluded that it was on health and safety grounds, then the "racial grounds" question does not arise.[52]We do not agree. It is quite plain that the Nagarajan test in a race discrimination case always requires consideration: having found what the principal reason was, or indeed having found what the combination of reasons was, it is still necessary for a court to conclude, where the act of dismissal is said to be the unfavourable treatment, whether racial grounds had a significant influence on the outcome.[53]This Tribunal did not make that finding or answer that question. We must therefore set aside this Judgment so far as it concerns direct discrimination because of the wholly flawed approach by the Tribunal:(1) in its disregard of the Showboat line of authorities, and thus its lack of understanding of the broadness of the meaning of the words 'racial grounds' and(2) by virtue of its approach to Nagarajan , that is entirely ignoring the crucial question as to whether racial grounds, as so broadly defined, had a significant influence in the outcome, by simply concluding that the discrimination took place on health and safety grounds without going on to consider whether those health and safety grounds themselves were significantly based upon or influenced, or accompanied, by considerations of race.[54]We are invited by Mr Bowers QC to say that had this Tribunal asked itself the direct question, namely whether the dismissal was significantly influenced by racial considerations, that is racial grounds as broadly defined, this Tribunal would be bound to have given the answer that it was, and thus to have found in favour of the Claimant. Mr Langstaff QC submits that that cannot be necessarily arrived at, had the Tribunal asked itself the right question. He puts in the very forefront of his argument the fact that this Tribunal found health and safety grounds, and that this Tribunal also plainly addressed the political hostility, which was clearly a matter in the minds of the fellow employees of the Claimant, arising out of his membership of the BNP.[55]It is at least arguable, by virtue of the Tribunal's findings so far as indirect discrimination is concerned (in paragraph 5.6 of its Judgment), namely that what the employer was doing was giving a decision that no member of the BNP could be employed by the Respondent, that that latter aspect, which did not feature on its face in the Tribunal's judgment on direct discrimination, might have played a role, had they asked themselves the right question. Mr Bowers QC has an answer to that, namely by reference to the authority of James v Eastleigh BC [1990] ICR 554 , that to dismiss the Claimant in the particular circumstances of this case because he was a member of the BNP, which has a racially exclusive constitution, could itself to be said to be unfavourable treatment on racial grounds, although that was not a finding which this Tribunal made.[56]In all the circumstances we cannot be satisfied as to what the decision of this Tribunal would have been, had it asked itself the right questions. We propose to quash the decision of the Tribunal on direct discrimination, and remit the matter. We will come back in a moment to the nature of the remission.[57]We turn briefly to indirect discrimination. That too was succinctly dealt with by the Tribunal in paragraph 5.6, namely in one paragraph:
"In respect of section 1(1A), which does apply in the employment field, the Respondent did apply a provision that if the Claimant were a member of the BNP he could not be employed by the Respondent on health and safety grounds. The Respondent could equally have applied that provision to persons not of the same race or ethnic or national origin as the Claimant. Such a provision would put persons of the same race or ethnic or national origin as the Claimant at a particular disadvantage when compared with other persons and the Claimant was put at such a disadvantage. However, we are satisfied that the Respondent has demonstrated to us that the application of the provision was a proportionate means of achieving a legitimate aim namely the keeping of health and safety within the Respondent for all the reasons set out at paragraph 3.11 in our findings of fact."
[58]Mr Bowers QC submits that this one sentence, recording acceptance by the Tribunal of the justification put forward of health and safety, albeit with cross-reference to one of the paragraphs of findings of fact, is wholly unacceptable. It is of course right that in indirect discrimination there is a defence of justification, which is not available in respect of direct discrimination, and thus there was no error of law by the Tribunal in concluding that there was justification: and plainly health and safety grounds are a conceivable ground of justification.[59]However, it is plain from a recent decision of the Court of Appeal in Hardys & Hansons PLC v Lax [2005] EWCA Civ 846 (unreported) [ H&H ], and not for the first time - because a number of earlier decisions of the Court of Appeal and of this Court are referred to in the leading judgment of Pill LJ in that case – that justification is not a straightforward matter. The fact that the employer alleges justification, - and the Court of Appeal held in H&H that an employer was not to be entitled to a margin of appreciation in arriving at that conclusion - was not to be accepted uncritically by a tribunal.[60]The Court of Appeal referred to the words of Sedley LJ in Allonby v Accrington and Rossendale College [2002] ICR 1189 in which he emphasised the task of the employment tribunal as being to carry out what he describes as a "critical evaluation". Of course it is not for the tribunal to put itself in the place of the employer, but it is equally not for the tribunal to accept what the employer said without more. Then there is the requirement, which Pill LJ also spelt out in his judgment for the appellate tribunal to ensure that the employment tribunal had itself carried out its job properly in scrutinizing carefully the manner in which the employer's decision had been reached.[61]None of this in any way challenges the general proposition both that tribunals must not put themselves in the position of the employer and that appellate tribunals must be slow to interfere with the decision of an employment tribunal. But what it does mean is that the Appeal Tribunal must be in a position to be satisfied that the employment tribunal has carried out its job. Absence of reasons is one of the indications that the employment tribunal has not carried out its job. No reason is given here, in the one sentence in which the Tribunal sets out the case of justification put forward by the Respondent, by which it can be seen as to whether any critical evaluation at all has been carried out with regard to the case for the employer of health and safety. The only indicator of any particular thought process on the part of the Tribunal is by reference to the "proportionate means of achieving a legitimate aim". Mr Bowers QC submits that proportionality is indeed an important aspect of the critical evaluation that is required to be done by the Tribunal: but the Tribunal does not indicate how, or upon the basis of what evidence, it came to the conclusion that the dismissal of this Claimant was a proportionate means of achieving the aim of health and safety.[62]Mr Bowers QC points out that he was already doing, at any rate perhaps temporarily - but that may be a matter for consideration of the evidence, a job which involved no contact with patients or fellow employees. He points out that this was a large organization with a substantially large staff and that dismissal immediately upon its being known that he had succeeded democratically in being elected as a councillor was a heavy response by the employer, without at least considering any alternatives. None of this appears in the Judgment even if it might have been explored, or at least explorable, in the evidence.[63]We are satisfied that this conclusion of the Tribunal cannot be upheld, and that the matter must be remitted back for further consideration as to whether the defence of justification is indeed established, the onus of course being upon the Respondent.[64]By a Respondent's Notice Mr Langstaff QC asserted that the Tribunal had been wrong to conclude that there was a PCP, that there was a relevant pool and that there was disparity between treatment of one race and another. Mr Bowers QC submits that it is plain that the Tribunal came to the conclusion that the PCP was being a member of the BNP, and Mr Langstaff QC is hardly able to resist that proposition. Mr Bowers QC further submits that it is clear that the pool was of those who could be employed by the Respondent. That in principle also appears to us to be correct.[65]Mr Bowers QC further submits that it is also plain that there must be disparity within the meaning of s1(1A) of the Act, by reference to the finding of the Tribunal in paragraph 3.4, to which we have referred above, that membership of the BNP is open to whites only, which would appear to lead to the conclusion by the Tribunal that persons of the same race or ethnic or national origin as the Claimant i.e. other white people would be at a greater disadvantage when compared with black people, simply because the latter are not going to be members of the BNP, and the former might be. Mr Langstaff QC however submits that that is not necessarily a conclusion which follows without addressing the question as to whether there might be any members of the BNP other than this Claimant amongst the potential applicants for jobs to the Respondent.[66]We are not reaching any conclusion as to whether Mr Langstaff QC's argument is correct in this regard. All we conclude is that if this matter must be remitted, as it must, to the Employment Tribunal, all questions relating to indirect discrimination are open for consideration by the tribunal, just as are all issues by way of direct discrimination.[67]We turn then to the question of remission. We are satisfied that this must be heard by a different tribunal. We have heard submissions from Mr Bowers QC that this is a case which falls smack within those principles in Sinclair Roche & Temperley v Heard [2005] IRLR which indicate the appropriateness of a fresh tribunal where(1) the initial judgment was wholly flawed - and we conclude that it was and(2) there is a real risk on a second bite of the cherry, notwithstanding the professionalism of the tribunal, that there will be a pressure to come either to the same decision, because that is the way that the tribunal would wish to decide in the light of its previous opinion, or to come to a different decision just because it feels it must.[68]There was in Sinclair Roche a very real concern about sending the matter to a different tribunal by reference to the length of the hearing below. That fortunately does not arise here, where effectively the hearing only took one day, and we conclude would be unlikely to take more than two days on a remission. We consider it would be sensible if it were a full time Chairman who chaired such a remitted hearing. In those circumstances this Appeal is allowed and the decision is, both as to direct and indirect discrimination, quashed and the matter is referred for hearing to a fresh tribunal.[69]We should add that there was a substantial further submission by Mr Bowers QC contained in his Notice of Appeal, based upon issues of Human Rights. We have not heard argument on them, nor addressed them, in the light of our conclusion. They are plainly likely to arise and need to be addressed on this remission.