MR B ALLAWAY - FIRE MASTER v (1) MR T REILLY (2) LOTHIAN AND BORDERS FIRE BOARD [2007] UKEAT 0054_06_3105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0054_06_3105Case No Appeal No. UKEATS/0054/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MR B ALLAWAY - FIRE MASTERAPPELLANT(1) MR T REILLY (2) LOTHIAN AND BORDERS FIRE BOARDRESPONDENT
Before
Lady SmithDate 31 May 2007
[1]APPEARANCES For the Appellant MR D O'CARROLL Advocate Instructed by City of Edinburgh Council Corporate Services Legal Division City Chambers High Street EDINBURGH EH1 1YJ For the first Respondent Mr A O'NEILL, QC Instructed by Messrs Balfour & Manson Solicitor 54-56 Frederick Street EDINBURGH EH2 1LS For the second Respondent NO REPRESENATION SUMMARY SEX DISCRIMINATION Direct PRACTICE AND PROCEDURE Amendment A Fire Master employed by a Fire Board was included as second respondent, as an individual, in a claim by a former employee of that Board for sex discrimination. At a pre-hearing review, the Tribunal refused a motion at his instance to exclude him from the claim as an individual respondent. He appealed and renewed that motion on appeal. The appeal was refused on the basis that the claimant had set out an arguable case alleging relevant direct sex discrimination on his part. THE HONOURABLE LADY SMITH Introduction This case concerns claims by a sub-officer of Lothian and Borders Fire Brigade for discrimination on grounds of sex and unfair dismissal. Following a pre-hearing review, the claim under the Sex Discrimination Act 1975 was directed at the claimant's employers, who were the first respondents and also against their Fire Master as an individual, who was named as second respondent.[2]This appeal is brought at the instance of the Fire Master, to whom I will refer as second respondent. I will refer to the first respondent in the appeal, who is the claimant, as claimant. No argument on behalf of the Fire Board, (which, as I understand it, shares representation with the second respondent) was advanced on appeal not that that is surprising as it is not a matter in which it has a direct interest. The Claim 3. The claimant has lodged an ET1 in which claims are advanced for unfair dismissal and under the Sex Discrimination Act 1975. As regards the latter, reference is made in the form to the second respondent being one of the respondents in the claim and to various ways in which it is said that he acted so as to afford less favourable treatment to the claimant when compared to the way in which a female employee would have been treated by him. Paragraph 1.11 of the paper apart to the ET1, includes:
"The claimant considered that his treatment by the third respondent … would not have been afforded to a woman in comparable circumstances to the claimant."
[4]Paragraph 1.8 provides:
"The claimant submits in particular that his treatment by the third respondent in maintaining his suspension after the decision of the disciplinary tribunal until his eventual dismissal and in seeking ways to effect his dismissal or provoke his resignation throughout this period constitutes the subjecting of the claimant to a detriment, contrary to the requirements of Section 6(2)(b) of the Sex Discrimination Act 1975. The claimant submits that his dismissal with effect from 28 April constitutes direct sex discrimination on grounds of his sex, also contrary to Section 6(1)(b) of the Sex Discrimination Act 1975."
The latter is presumably intended to be a reference to section 6(2)(b).[5]Then, paragraph 1.21 provides:
" Separatim, Section 42(2) provides that the third respondent as employee or agent is deemed to have aided his employer's (vicarious) wrong and thereby and in terms of Section 41(1) to have done the unlawful act complained of himself. A person who knowingly aids another to commit an unlawful act of discrimination is himself deemed to have committed an unlawful act 'of the like description'. The employee cannot therefore hide behind respondeat superior. An employee will remain liable for aiding (provided he has acted 'knowingly') even if his employer escapes liability by proving under reference to Section 41(3) that he taken reasonable steps to prevent the discrimination."
It is thus made plain in the ET1 that the claimant seeks to have both his employers and the second respondent held responsible for the alleged discrimination and liable to him.[6]There was a case management discussion on 28 October 2005 before the Chairman, Mr K J McGowan, and he records:
"I was able to confirm to the parties (from the relevant tribunal files) that the respondents in the unfair dismissal claim are (1) Lothian and Borders Fire Board; (2) Lothian and Borders Fire Brigade and (3) Brian Allaway and in the sex discrimination claim (1) Lothian and Borders Fire Brigade; (2) Lothian and Borders Fire Board and (3) Brian Allaway."
At that discussion, counsel for all the respondents indicated that he would, at a preliminary hearing, challenge the unfair dismissal case brought against the second respondent. Further he sought a pre hearing review on whether or not it was appropriate for the second respondent to be convened as an individual respondent standing the fact that it was accepted by the first respondents that he was, at all times, acting in the course of his employment. The solicitor for the claimant consented to an order dismissing the claim against the Fire Brigade.[7]The pre hearing review took place on 12 May 2006. By that time, the claimant had lodged an amendment to his claim dated 20 February 2006. It adds specification to his sex discrimination case including numerous particulars of actions on the part of the second respondent that are complained of. At the end of that amendment, there appears the following paragraph:
"It is believed by the claimant that in all of the above respects the Second Respondent treated the Claimant, or aided and abetted the First Respondent to treat the Claimant, less favourably than he or they treat or would treat a woman in the same (or not materially different) circumstances. It is further believed by the Claimant that the Second Respondent did so act unlawfully with the knowledge that he was doing so. The Claimant believes that the Second Respondent was and is fully aware of the law relating to gender equality in the workplace."
At that hearing, counsel for the second respondent submitted that the amendment should be refused and the claim of sex discrimination against the second respondent dismissed.[8]The Tribunal did not uphold the submissions for the second respondent. In paragraphs 19 - 21, the Chairman explains why:
"19. In the paper apart to his claim form, the claimant sets out, in paragraph 1.18, the basis of his claim against the second respondent (who at that stage, was named as a third respondent). In particular, the claimant states in that paragraph 'The claimant submits in particular that his treatment by the third respondent in maintaining his suspension after the decision of the disciplinary tribunal until his eventual dismissal and in seeking ways to effect his dismissal or provoke his resignation throughout this period constitutes the subjecting of the claimant to a detriment, contrary to the requirements of Section 6(2)(b) of the Sex Discrimination Act 1975. The claimant submits that his dismissal with effect from 28 April 2005 constitutes direct sex discrimination on the grounds of his sex, also contrary to Section 6(1)(b) of the Sex Discrimination Act 1975'. 20. Paragraph 1.22 of that paper apart then states: 'Separatim, Section 42(2) provides that the third respondent as employee or agent is deemed to have aided his employer's (vicarious) wrong and thereby under and in terms of Section 41(1) to have done the unlawful act complained of himself. A person who knowingly aids another to commit an unlawful act of discrimination is himself deemed to have committed an unlawful act "of the like description"
. The employee cannot therefore hid (sic) behind respondent superior. An employee will remain liable for aiding (provided he has acted "knowingly") even if his employer escapes liability by providing under reference to Section 41(3) that he taken (sic) reasonable steps to prevent the discrimination'. 21. I am satisfied that these two paragraphs, and in particular, paragraph 1.18 of that paper apart, set out the basis of the claim against the second respondent. Those acting for the claimant are aware of the standards required of them as set out in the case of Hallam namely that it will require to be established that the second respondent 'knowingly' aided and abetted his employer's vicarious liability which, according to Harvey at paragraph 405 (see earlier) means that it will have to be shown that the second respondent … either intended (in the sense of wanted) the employer to discriminate, or alternatively to have known (in the sense of having no substantial doubt) that discrimination by the employer would result from his behaviour. In my view, it is clear from the present pleadings as contained in the original claim form what the claimant will seek to assert in relation to the second respondent and in my view, as I have said, paragraphs 1.18 read together with paragraph 1.22 of the claim form set out clearly the basis of the claim against the second respondent. The task which confronts the claimant may not be an easy one having regard to the level of proof required of him but he is entitled to make that attempt on the basis of his present averments." Then, at paragraph 24, the Tribunal states:
"In all the circumstances, although I am of the view that the claim as originally stated gives sufficient notice to the respondents of the claim which is to be made against the second respondent, I consider that the details set out in the opposed amendment give further notice of that claim and I shall therefore allow the claim to be amended in terms of that amendment."
[9]The Tribunal was thus satisfied that the claimant had given sufficient notice of the claim directed against the second respondent in the original notice of claim and that the amendment had the effect of giving further notice of it. The amendment was, accordingly, allowed. It is also clear that the Tribunal was satisfied that a relevant claim against the second respondent, for sex discrimination, was advanced. Relevant Law[10]The relevant statutory provisions are sections 1(1)(a), 2, 6(2)(b), 41(1) and 42(1)and(2) of the 1975 Act. The provisions contained in sections 41(1) and 42(1) and (2) came under scrutiny in the course of the appeal:
"41(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval. … 42(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description. (2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 41 … shall be deemed to aid the doing of the act by the employer or principal."
[11]Despite the fact that this legislation has been on the statute book for over thirty years, the nature and extent of the knowledge that the "aider" requires to have for the purposes of section 42(1) has undergone very little discussion in the authorities. That may, of course, be because in most cases where a person is brought in as an individual under section 42(1) (or under the parallel provisions in the Race Relations Act 1976) it will be plain from the facts of the case that if aid was given, it was given knowingly.[12]The central issue in the case of Anyanwu v South Bank Student Union and South Bank University [2001] ICR 391 was whether or not the university respondent had "aided" the student union respondent in expelling the claimants from the university and the focus of the discussion was, accordingly, on the issue of what does and does not amount to "aiding" under the parallel provisions of the Race Relations Act 1976 section 33(1). Mention is though made of the "knowingly" requirement in the speech of Lord Hope of Craighead at paragraph 41:
"The critical words in section 33(1) are contained in the phrase 'who knowingly aids another person to do an act made unlawful by this Act.' The state of mind that is referred to here is actual knowledge, in contrast to that referred to in section 33(4) which uses the phrase 'knowingly or recklessly'."
He then considers what is meant by the word "aids" and concludes:
"All that is needed is an act of some kind, done knowingly, which helps the other person to do the unlawful act."
[13]A little more assistance can be gained from the case of Hallam & Anr v Avery & Anr [2001] 1 WLR 655 although it should be recognized at the outset that that case did not concern a claim against a fellow employee. The respondents were police officers who had given information to a local authority which had been used by that authority to take action against the plaintiffs which was alleged to have been discriminatory on grounds of race. The issue was, again, whether or not the respondents had aided another person to do an unlawful act of discrimination but there is some reference to the "knowingly" requirement. At paragraphs 9 – 11, in the speech of Lord Bingham of Cornhill, it is said: "… the appellants had failed to show that the police officers had aided the council to do the unlawful act in question because neither officer was a party to or involved in the making of the council's decision. There were plainly a number of different ways in which the council should have reacted to the information supplied by the police officers, if the council chose to react at all, several of which responses would have been lawful. The judge's decision was open to him on the evidence and there are no grounds on which the House could properly disturb it. 10 It does not follow from this conclusion that where a party gives information to another on which that other relies in doing an unlawful discriminatory act the first party can never be liable under section 33(1). ). That would be to treat the judge's factual conclusion, based on a correct legal self-direction, as if it were itself a legal proposition. It is not, and the judge's hesitation makes plain that there was room for a conclusion other than that which he reached. Subject always to a correct understanding of the subsection, the outcome of cases will almost always turn on the facts as properly found. 11. This conclusion makes it unnecessary to address the issue which most exercised the Court of Appeal and to which most of the argument in the House was directed: the extent of the knowledge which an aider must have so as to be liable under section 33(1). It is tempting to offer guidance on that question, and I would not wish to be understood as approving the Court of Appeal's guidance. But it does not appear, from the paucity of decided cases, that the problem is one which often arises in practice (as in Anyanwu v South Bank Student Union) there will be little doubt that aid was given knowingly if it is found to have been given at all. Any observations that the House might make would, in the circumstances, be unauthoritative ...".[14]The Court of Appeal, in Hallam ([2000] ICR 583) had commented, on the matter of "'knowingly": "Knowledge is the essential requirement. Section 33(1) does not encompass the individual who either recklessly aids the commission of a prohibited discriminatory act or provides aid in circumstances where there is a foreseeable risk of discriminatory action by someone else … the exclusive test for liability is knowledge." (Judge LJ at paragraph 27).[15]As ever, it is best to have resort to the words of the statute. Thus, if a fellow employee does an act in the course of his employment which has the effect of discriminating against the claimant employee on grounds of sex and that is a result which can be concluded to have been within his knowledge at the time he carried out the act in question, the requirements of the subsection are met. Discrimination does not have to be what he intended nor does it have to have been his motive. It is enough that, on the evidence, the conclusion can be drawn that discrimination as the probable outcome was within the scope of his knowledge at the time. It would not need to be in the forefront of his mind nor would he need to have specifically addressed his mind to it. It must be that it would be enough if , in all the circumstances , it can properly be concluded that it was within the knowledge that was possessed by the alleged discriminator Inevitably, whether or not it can be concluded that the alleged discriminator did an act "knowingly" is going to depend on the facts and circumstances of each particular case and care should be taken not exclude from proof any case in which it is arguable that, on the available material, that is something which can be established. As was commented by Lord Steyn in Anyanwu , at paragraph 24:
"…. vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact sensitive and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest."
The Case on Appeal[16]The notice of appeal states two grounds:
"a) the claimant has failed to set out in his pleadings any proper basis on which the appellant might be liable to him in terms of sections 41 and 42 of the Sex Discrimination Act 1975 and the tribunal erred in law in concluding the contrary and refusing to dismiss the claim as against the appellant. b) the amendment proposed by the claimant took the claimant no further in putting the claim against the second respondent on a proper basis and should have been refused."
[17]For the second respondent, it was submitted that the Tribunal was wrong to have found that the claimant's pleadings were adequate to maintain a claim of sex discrimination against the second respondent as an individual. Although much time was spent criticising the Tribunal's view that adequate notice of such a claim had been given in the original ET1, Mr O'Carroll ultimately accepted that that would not matter if the effect of the amendment was that adequate notice was given. Since the only argument that was presented against the allowance of the amendment was that it did not amount to the presentation of an adequate case against the second respondent, I propose to consider the whole pleadings together.[18]Mr O'Carroll was at pains to advise that he was not suggesting that the claimant was not entitled, on the basis of what was contained in his claim, to proceed with his case against the first respondent. The problem lay only in respect of the case against the second respondent. The first respondent could be held liable vicariously for the actions of the second respondent under and in terms of section 41(1) of the 1975 Act. No reliance was being placed on section 41(3). Section 41(1) provided that the primary liability was that of the employer. Whilst section 42 allowed for circumstances in which a fellow employee could be held liable as an individual, it did not automatically allow a claimant so to proceed solely on the grounds that that fellow employee carried out a discriminatory act. It had to be shown that he did so "knowingly".[19]The "knowingly" concept was, he submitted of great importance in the discrimination context because of the possibility of discriminatory actings without improper motive or intention. He referred to the case of Nagarajan v London Regional Transport [2000] 1 AC 501 for the proposition that discrimination was not negatived by the discriminator's motive or intention or reason or purpose. That is, of course, what is stated in that case but it was difficult to see the relevance of that proposition to Mr O'Carroll's argument.[20]He then moved to the case of Hallam and submitted under reference to it that it was necessary to prove, in the employment context, that the fellow employee knew or intended to treat the other person less favourably on racial grounds or that that would be the result of what he did. After that, reliance was placed on the case of Krishna v Argyll and Bute Council & Anr EAT/446/99 where an individual employee had been named as second respondent in a race discrimination case and Lord Johnston commented obiter, that:
"...we would offer the view that this should not happen where it is accepted, or albeit at least averred, that in a discrimination case the employer was the employer of the alleged discriminator in the sense that he or she was acting in the course of his employment when the alleged discrimination took place."
[21]The fact that knowledge was required was, submitted Mr O'Carroll productive of the following consequences: the position of an employee who is alleged to have done a discriminatory act is quite different from that of the employer of that employee, it is possible for the employer to be liable for the discriminatory acts of his employee without the employee bearing any liability, genuine but misguided actions of employees who are alleged to have done the discriminatory acts in question are not enough and carelessness or recklessness could fix the employer with liability but not the employee. It was, he said, because of the extra matters required before a claimant could bring a case against a fellow employee that in practice it usually only happened in harassment cases. He referred, as examples to a number of cases including AM v WC and SPV [1999] IRLR 410, Prison Service v Johnson [1997] ICR 275 and Miles v Gillbank [2006] ICR 1297 .[22]Turning to what was set out in the ET1 and the amendment, Mr O'Carroll submitted that none of what was said was good enough for the advancement of a case against the second respondent as an individual. The averments not being good enough was a repeated theme but he did not, at any time, suggest exactly what it was that a claimant would have to say in addition to that which is averred by this claimant to make the claim relevant.[23]Finally, Mr O'Carroll submitted that there would be no injustice to the claimant if he was not able to pursue a claim against the second respondent. The first respondent accepted that the second respondent was acting in the course of his employment and there was no section 41(3) being advanced. He would have a remedy against them if he succeeded in his discrimination case. He did not need to claim against the second respondent as well.[24]For the claimant, it was submitted in the grounds of appeal that the appeal failed to specify the legal basis on which it was brought. The grounds of appeal were inadequate and the appeal should be dismissed for that reason alone. I have some sympathy with that position as the argument that emerged in the course of the appeal hearing was not really focused in the written notice of appeal. However, Mr O'Neill did not press the point but contented himself with responding to the argument on its merits.[25]The second respondent's case that he should not be retained as an individual respondent was ill founded. The focus of the 1975 Act was that it was concerned with individuals who discriminated. That was followed through in the terms of sections 41 and 42. The second respondent in this case was being put forward as having in fact been the person "in charge". The first respondents' liability was not the primary liability but it was instructive that the second respondent accepted that there was a sufficient case against the first respondent. That meant that the only issue between them was whether the second respondent had acted knowingly. What more did the claimant's pleadings require to say? Necessarily, such cases involve the drawing of inferences: Brown v Croydon LBC & Anr [2007] IRLR 259 .[26]On the matter of "knowingly", Mr O'Neill submitted that it simply meant that the act in question needed to be done not inadvertently. It required to be something that was done consciously and which, if the person had applied their mind to the question, they would have realised that they would not have treated a woman in the same way.[27]It was also, he submitted, of significance that the case would fall within the ambit of the reverse burden of proof provisions of section 63A of the 1975 Act. Thus the burden on the claimant was to go only so far as establishing facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer had committed an act of discrimination. The claimant may be able to show enough by way of background facts for a reasonable inference properly to be drawn that any less favourable treatment was on grounds of sex. It would then be for the second respondent to show, if he can, that he did not act "knowingly". Bearing that in mind, what the claimant had averred was certainly adequate.[28]Finally, Mr O'Neill strongly resisted any suggestion that the second respondent's appeal should succeed on the basis that the claimant did not need to claim against him. Firstly, Krishna could not properly be relied on as authority in support of that proposition because the comments made were not only obiter but were made without the Tribunal having been referred to sections 31 and 33 of the Race Relations Act 1976, which contain the parallel provisions to sections 41 and 42 of the 1975 Act. Secondly, the remedies open to a Tribunal under Part VII of the 1975 Act were not limited to pecuniary ones. Under section 65(1)(c) it could make a recommendation that the respondent take within a specified period action appearing to the Tribunal practicable for the purpose of obviating or reducing the adverse effect on the claimant of any act of discrimination. It would also be open to the Tribunal to make an order declaratory of the claimant's rights in relation to the discriminatory act complained of. Further, it would be open to the Tribunal to apportion any compensation awarded as between the respondents. Discussion[29]This case is still at a preliminary stage. No evidence has yet been led. Parties require to give each other fair notice of their respective cases. In particular, insofar as the onus rests on the claimant, the claimant requires to take care to see to it that the remedy sought and the basis for it in fact and law has been adequately notified in the pleadings.[30]The issue that arose for consideration by the Tribunal was a short one. It was, in effect, that of whether the claimant's written case gave adequate notice of a claim which, on the facts alleged, was open to him as a matter of law? Whilst the second respondent's submissions came close, at times, to suggesting that it was not competent to advance a case for sex discrimination against the second respondent as an individual it was, ultimately, accepted that the issue was not one of competence. That has to be correct in the circumstances of this case. The first respondent accepts that if it is established that the acts complained of were discriminatory, the second respondent was acting in the course of his employment. That being so, provided the claimant shows that the second respondent acted "knowingly" in the sense that I have discussed, the second respondent can be held liable under and in terms of section 42(1).[31]The question for the Tribunal was thus essentially a pleading one. Had the claimant said enough to show that he was intending to lay a case before the Tribunal that not only had the second respondent acted in a discriminatory manner in the ways which were adequately specified but that he had done so "knowingly"? If so, then the Tribunal could be satisfied that the claimant was intending to present a case which was relevant and competent as a matter of law and further, it could be satisfied that the second respondent had been given adequate notice of it. In deciding to refuse the second respondent's motion the Tribunal indicated that it was satisfied that these requirements were met. I cannot see that it was not entitled to arrive at that result. The passages in the ET1 and the amendment to which I have referred make it plain that the case is presented as one in which the claimant asserts that he can prove enough as regards the "knowingly" requirement of section 42(1) to discharge the initial onus that will rest on him. Further, detailed notice is given of the factual matters that will be relied on as pointing to the conclusion on the "knowingly" question being resolved in his favour. As the Tribunal commented, the task which confronts the claimant may not be an easy one but to recognise that is not to say that he has not done what is required of him at this stage in the proceedings. To prevent him from trying to establish his case would be unjust. As Lord Steyn commented, cases such as these are fact – sensitive and it cannot be concluded at this stage that, on evidence not yet led, the claimant will not succeed in the task which he has set himself. ; the comments made were obiter and were made without reference to the specific provisions of sections 41(1) and 42 of the 1975 Act Had those statutory provisions been referred to , I would venture to suggest that they would not have been made at all.[32]In conclusion he is doing so in a manner that gives adequate notice to the alleged discriminator of the case that he will face at the full Tribunal hearing. He need, at this stage, do no more.[33]Otherwise, the claimant's appeal amounted in essence to a plea that the claimant should not be pursuing the second respondent as an individual and I can appreciate the stress that his doing so must be causing. However, it is not correct to say, as Mr O'Carroll did, that the scheme of the legislation is that the primary liability rests with the employer; to do so is to ignore the use of the words "as well as", in section 41(1). Further, I agree that reliance cannot, in the circumstances, properly be placed on what was said on the matter in Krishna . Rather, the fact is that the claimant is, in the circumstances, entitled to do as he is doing in including the second respondent as an individual so as to seek to call the person who he sees as the discriminator, to account. Disposal[34]In these circumstances, the appeal is dismissed and the case will be remitted to the Employment Tribunal to proceed as accords.