Sheffield City Council v Norouzi (Harassment : Conduct) [2011] UKEAT 0497_10_1406

EAT
Sheffield City Council v Norouzi (Harassment : Conduct)
[2011] UKEAT 0497_10_1406 · 2011-06-14
[1]This is an appeal by Sheffield City Council (“the Council”) from the decision of an Employment Tribunal sitting at Sheffield, chaired by Employment Judge Shore, upholding the Claimant’s claims of racial discrimination. The case was heard on 2-6 November 2009 and a formal Judgment was sent to the parties on 16 December. Written Reasons were not supplied until 7 June 2010, almost six months after the date of the decision and more than seven months from the hearing: we return to this point below.[2]The Claimant was represented before us by Ms. Kerry Smith and the Council by Mr. Colin Bourne, both of counsel. Both also appeared before the Tribunal. THE FACTS IN OUTLINE[3]In April 2006 the Claimant started work for the Council as a residential social worker at a small home for troubled young people between the ages of eleven and fifteen. One of the children at the home, from July 2006, was a girl to whom the Tribunal referred as “A”. Her behaviour was extremely challenging, and she was often abusive and offensive to the staff. In the case of the Claimant, who is of Iranian origin, she was regularly offensive to him on racial grounds. There were a number of incidents in which she made such comments as that he should go back to his own country or, on one occasion, that she would like to blow up the whole of Asia and all Asians. She also mocked and mimicked his accent: the Tribunal found that this happened on most shifts when he worked with her. He became increasingly upset by her behaviour, and by June 2008 he had had enough: he went off sick, and he has not returned to work since. THE ISSUES BEFORE THE TRIBUNAL[4]The claim was initially very shortly pleaded, but as eventually clarified following the service of Further and Better Particulars it was put in two ways –(a) as harassment contrary to section 3A of the Race Relations Act 1976 and(b) as indirect discrimination contrary to section 1 (1A). The gist of both claims was the same, namely that the Council had not done enough to protect the Claimant from the effects of A’s behaviour; but the ways in which that point was reached under the alternative heads of claim need to be explained.[5]So far as the claim of harassment is concerned, section 3A reads (so far as relevant) as follows: (1) A person subjects another to harassment … 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. It was common ground both before the Tribunal and before us that, subject to one point which we consider at paras. 32-33 below, A’s conduct towards the Claimant satisfied the statutory definition of harassment. Of course it was not the Council who had “engage[d] in that conduct” – A was not someone for whose acts it was vicariously liable – and on the face of it that would preclude any claim against it by the Claimant under section 3A. However, Ms. Smith relied on the decision of Burton J in R (Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] ICR 1234 . One of the issues in that case was whether section 4A of the Sex Discrimination Act 1975 , which was (as first enacted) in identical terms, mutatis mutandis , to section 3A of the 1976 Act, properly implemented the terms of the underlying EU Directive (2002/73/EC – which amended the original Equal Treatment Directive (76/2007/EEC)). It was (eventually) common ground before Burton J that the effect of the Directive was that:
“ … [A]n employer could be held liable on appropriate facts for the conduct of, for example, a supplier or customer … . It might be the case that an employer could be held liable for failing to take action where there is a continuing course of offensive conduct, which the employer knows of but does nothing to safeguard against. The employer could be responsible for failing to act, albeit not responsible for the third party actions in themselves … .” (see para. 37 of his judgment, read with para. 40, at p. 1250). It appears also to have been common ground that such a failure to act could constitute “conduct” on the part of the employer for the purpose of section 4A; but the problem was that in such a case the putative harasser could not be said to have been acting “on the ground of” the complainant’s sex. Burton J for that reason held that section 4A as originally drafted did not accord with the requirements of the Directive. The section was subsequently amended by removing the words “on the grounds of her sex”
. The relevance of this decision to the present case is that there is an EU Directive – 2000/43/EC (the so-called Race Directive ) – proscribing racial harassment in substantially the same terms as the amended Equal Treatment Directive . Oddly, the Government has not thought it right to amend section 3A of the 1976 Act in the same way as section 4A of the 1975 Act, notwithstanding that the reasoning of the EOC decision would appear to apply equally (as to this, see Richmond Pharmacology v Dhaliwal [2009] ICR 724 , n. 1 (p. 733)); but the Council is an “emanation of the state”, and Ms. Smith argued that the Directive, as construed in the EOC case, accordingly had direct effect in the Claimant’s case.[6]Section 1 (1A) of the 1976 Act reads (so far as relevant) as follows:
“A person also discriminates against another if he applies to that other a provision, criterion or practice 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 with other persons, (b) which puts or would put that other at that disadvantage, and (c) which he cannot show to be a proportionate means of achieving a legitimate aim.”
The Claimant in his Further and Better Particulars identified four “practices” within the meaning of section 1(1A) which he said were applied in his case: “i. Letting racist behaviour by residents persist by not investigating racist abuse and harassment that has taken place, and/or ii. Letting racist behaviour by residents persist by not adequately challenging and taking sufficient remedial steps against such behaviour by residents, and/or iii. Letting racist behaviour by residents become “normalised”, and/or iv. Not having support mechanisms in place for staff who have been victims of repetitive racist abuse and harassment by residents.” (Although the Claimant seems to have identified his “race” as Iranian or Asian, in fact in this context it would seem that the relevant “race or ethnic or national origin” is simply “non-British”; but nothing turns on this.)[7]The Council did not take issue before the Tribunal with those ways of formulating the case; and the hearing proceeded on the basis that the essential question was one of fact, namely whether – as we have said – the Council had done enough to protect the Claimant against the effects of A’s behaviour. Indeed, Mr. Bourne is recorded at para. 18 of the Reasons as saying that the question for the Tribunal “is largely a case of judgment”. We were initially troubled as to whether the basis of the claim in law was really as clear-cut as the Council’s concession would suggest. But Ms. Smith took us carefully through the EOC decision, and we see how the case can be put. THE TRIBUNAL’S DECISON AND REASONS[8]The Tribunal’s reasoning can be summarised as follows. It reviewed a number of specific incidents of misconduct by A on which the Claimant relied. It did not find that in all cases A had used racial abuse; but she did in some, and it in any event made the more general finding to which we have referred that she continually mocked his accent. It examined whether the specific incidents were reported, by the Claimant or others, and if so in what terms, with a view to ascertaining to what extent the Council was put on notice of the racial harassment which the Claimant was experiencing from A and the problems which he was finding with it. Although it found that one incident in November 2006 “required further action and/or work with Client A” it was not seriously critical of the Council’s response until the end of 2007. In relation to an incident on 28 December 2007, in which A’s “key worker”, Ms. Spinks, was involved, it found, at paras. 65-66:
“65. The Tribunal finds that Violet Spinks’ intervention was not enough. She may have attempted to speak to Client A about her behaviour, but the matter needed to be taken further. There is no evidence before the Tribunal that any further attempts to deal with this incident were made. 66. The Tribunal finds that this incident demonstrates the Respondent letting racist behaviour persist by not investigating incidents and not adequately challenging Client A. The respondent also, by now was allowing racist behaviour to become normalised. There was not yet a failure to put support mechanisms in place.”
It then referred to an “individual work report” dated 21 February 2008 referring to A’s racial abuse aimed at the Claimant and found, at paras. 68-69:
“68. The Tribunal finds that on or about 21 February 2008 racist abuse has been identified as recognised as an issue and therefore an imperative is raised for the Respondent to do something. 69. From this point forward, the Tribunal finds that any incidents of racial abuse towards Mr. Norouzi should have been dealt with more proactively than they were and that the Respondent had, by default, put in place the provisions criteria or practices listed in paragraph 6.1, 6.2 and 6.3 of this judgment [i.e. (i)-(iii) as listed at para. 6 above].”
[9]The reference in paragraph 69 to “put[ting] in place the provisions criteria or practices listed” is, with respect, slightly clumsy; but what the Tribunal means is that the Council should by that date have started to take the steps which it was the Claimant’s case, as pleaded as part of the indirect discrimination claim, that it had failed to take: that is, it should have stopped treating A’s behaviour as tolerable (this is what is meant by “normalised”) and should have “investigated” it and taken action to remedy the problem.[10]The Tribunal referred at paras. 76 and 77 of the Reasons to a meeting between the Claimant and his supervisor, Ms. White, on 7 April 2008. The notice of the meeting records the Claimant’s concerns about A’s behaviour, including her racist comments. The Tribunal says at para. 76-77:
“76. The note went on to say that that a meeting was to be arranged when Client A’s social worker returned from annual leave to plan her strategy. In the view of the Tribunal, this was the final warning for the Respondent to do something about Client A’s behaviour towards Mr. Norouzi. 77. It was noted that Violet Spinks was away on annual leave for some considerable time. This does not excuse lack of action by the Respondent.”
[11]At paras. 78-81 of the Reasons the Tribunal describes a further incident of racial abuse and says (at para. 81):
“The Tribunal finds that this incidence of racial abuse should have been picked up and investigated, notwithstanding that there was no note on the record from Mr. Norouzi that any further action needed to be taken. Given that Mr. Norouzi had raised he issue of Client A’s racist abuse of him in his meeting with Anne White on 7 April, any further incidents of racist abuse by Client A were now firmly on record as being unacceptable to Mr. Norouzi.”
[12]At para. 83 of the Reasons the Tribunal refers to the final incident, on 3 June 2008, which caused the Claimant to go off sick. Shortly afterwards, he lodged a grievance with a more senior manager, Mr. Sterling. The Tribunal paid tribute to the effort and dedication put in by Mr. Sterling to resolve the Claimant’s grievance, once it had been brought to his attention; but, to anticipate, it believed that that was too late.[13]After summarising the parties’ submissions, the Tribunal gave its conclusions at paras. 98-112 of the Reasons. It dealt with the claim of indirect discrimination at paras. 98-103 and with the harassment claim at paras. 104-112. We take them in turn.[14]As regards indirect discrimination, what the Tribunal found, in substance, was that although over the first eighteen months or so that A had been at the home the Council had done as much as was required to protect the Claimant from her racist behaviour, from the date of the “individual work report” in February 2008 (see para. 8 above) it was on notice that more effective measures were required, and they were not taken. It also found that the Council should have put more effective support mechanisms in place for the Claimant after 7 April 2008. Those findings are rather awkwardly expressed, at para. 101, in the language of the “practices” pleaded by the Claimant (see para. 6 above) which are themselves somewhat contrived; but their effect is as we have stated.[15]As regards harassment, the reasoning is more straightforward. There was no issue that A’s conduct constituted harassment. The Tribunal found at para. 111, consistently with its finding on indirect discrimination, that the Council had been put on notice of A’s behaviour and that it did not do enough to protect the Claimant from that behaviour. On the unchallenged analysis of the law set out at para. 5 above, that was sufficient to require a finding that the Council itself was liable in respect of A’s harassment. THE APPEAL[16]The Notice of Appeal is diffuse and the errors of law alleged are not clearly identified; and those defects are not remedied by the skeleton argument, which mostly repeats the Notice of Appeal in the same words. In the end the matters which we have to decide can be summarised under four heads:(1) delay in provision of the Reasons;(2) challenges to the Tribunal’s factual findings;(3) mimicking the Claimant’s accent; and(4) Conteh . We consider those in turn. (1) DELAY IN PROVISION OF THE REASONS[17]As noted above, the hearing concluded on 6 November 2009. The Tribunal met in chambers on 11 November. The formal Judgment giving the Tribunal’s decision was sent to the parties on 16 December, without written Reasons or any indication that they were to follow. On 7 January 2010 Judge Shore made an order for a remedy hearing: it does not appear to have been appreciated that a remedy hearing could not fairly be held until the reasons for the liability decision were known. Both parties pressed for Reasons. They were eventually told, by letter from the Regional Secretary dated 25 February, that Judge Shore apologised for the delay, which was “due to a lack of available time on his part to collate five days of evidence into a coherent set of written reasons”. The letter said that a first draft had been produced and that it was hoped that the final version could be supplied “before 26 February 2010”: since that was the following day, something seems to have gone wrong in the drafting. In the event, as we have said, the Reasons were not sent to the parties until June. There was no explanation or apology for the delay. The recital to the Reasons referred to their having been requested under rule 30 (5) of the Employment Tribunal Rules of Procedure . That was wrong: it was of course the obligation of the Tribunal to provide Reasons irrespective of any request, since the decision had been reserved.[18]Any delay of this length is very regrettable. We are conscious of the pressure on the time of Employment Judges and sympathise with the demands which providing a good set of Reasons can impose. But it ought normally to be possible to provide Reasons, even in a complicated case, within the three-month period set by this Tribunal in Kwamin v Abbey National plc [2009] IRLR 516; and where that is not possible, as will sometimes for particular reasons be the case, the parties are owed an acknowledgment and, so far as possible and appropriate, an explanation and an apology. The Tribunal seems to have fallen down badly on this aspect.[19]Mr. Bourne, however, goes further and argues that the delay is sufficient in itself to constitute a ground of appeal. We do not agree. It is only in very exceptional cases that that will be so – see Connex South Eastern Ltd. v Bangs [2005] ICR 763 , at para. 43 (pp. 776-8) – and this is not one of them. It should be borne in mind that the parties at least knew the result of the case reasonably promptly: the delay was only in the provision of the Reasons. Mr. Bourne contended that the Regional Secretary’s reference to the need to “collate [the] … evidence into a coherent set of written reasons” meant that the original decision must have been made without any proper analysis of the facts, but we can see no justification for any such inference. (2) CHALLENGES TO THE FACTUAL FINDINGS[20]Ms. Smith in her helpful skeleton argument extracted from the Grounds of Appeal (“GoA”) what appear to be the findings of fact which the Council wished to challenge. We take them in turn.[21]GoA , para. 20 : At para. 19 of the Reasons the Tribunal described a Claimant as “an intelligent, articulate and assertive individual”, who had been “well educated to NVQ level 4”. The evidence in fact was that the Claimant had a degree. The Council criticises that error and contends that the fact that the Claimant had a degree was “an important consideration in the circumstances of this case” – apparently, though this is not spelt out, on the basis that the Council was for that reason entitled to rely on him to a greater extent himself to recommend further action in relation to A or to seek further support if required. We cannot see that this error on the part of the Tribunal constituted or gave rise to any error of law. In so far as the Council had a point here, it did not depend on whether the Claimant had a degree. The Tribunal found that he was intelligent, articulate and assertive, and no doubt it took those matters into account in deciding that the Council could not be criticised for its failure to take action over the first eighteen months or so. It is fanciful to suppose that it could or would have reached a different decision as regards the final period but for the error here complained of.[22]GoA paras 21-23 : It was, as we have already noted, the Council’s case in the Tribunal that it was entitled to rely on the social workers at the home, and specifically on the Claimant, to inform them of problems of the kind encountered with A, and that it had never had received sufficient indication of any such problems as to require any action to be taken. In that connection it relied on the fact that the Claimant did not indicate that “follow up work” was required when submitting written reports on the various incidents involving A. The Council complains that the Tribunal made no specific finding in this regard, save at para. 29 of the Reasons, where it noted that: “… although Mr. Norouzi was fed up with Client A’s behaviour, he was not particularly pushing for any action to be taken to tackle it. The Tribunal accepts that there was no imperative on Mr. Blake to do anything and accepts that if Mr. Norouzi had pushed harder, Mr. Blake would have taken action.” (Mr. Blake was the Assistant Homes Manager for the home in question at the material time.) This criticism ignores the basis on which the Tribunal found in the Claimant’s favour. It accepted the case advanced by the Council in respect of most of the period (as indeed para. 29 shows), no doubt mainly or partly for the very reason given. But it also found that a time came, particularly in the light of the individual work report of February 2008, when the problems with A’s behaviour were sufficiently clearly drawn to the Council’s attention as to require further action.[23]GoA para. 24-26 : In these paragraphs the Council again relies on para. 29 of the Reasons (set out above) and says that “there was no dispute that the first time that the Claimant ‘pushed’ for anything to be done” was on 3 June 2008. On that basis, it is said to be perverse for the Council to be criticised for any inaction prior to that date. Even assuming (as to which we are not clear) that it was indeed common ground before the Tribunal that the Claimant himself had not pushed for action at any earlier date, there is nothing perverse in the Tribunal finding that information reaching the Council by other routes was sufficient to require it to take action.[24]GoA para. 27 : This paragraph relies on a supposed inconsistency between a finding at para. 25 of the Reasons that A’s behaviour in mocking the Claimant and mimicking his accent “on most shifts” was “not really challenged” by the Council and its subsequent findings, in relation to specific incidents of racial or racially motivated abuse or misconduct, that the conduct in question was on each occasion challenged by the Claimant or his colleagues. But we can see no such inconsistency. There is nothing inherently incredible in a situation where specific incidents of racial harassment are “challenged” but there is a tolerance of A’s continuing practice of mocking the Claimant for his accent.[25]GoA paras. 28-32 : It is contended in these paragraphs that the Tribunal criticised the Council for failing to take action to protect the Claimant without at any stage identifying any specific steps which it believed should have been taken, and that this amounted to an error of law. This was the principal point pursued by Mr. Bourne in his oral submissions before us. He relied on para. 20 of the judgment of this Tribunal in Pearce v Governing Body of Mayfield Secondary School [2000] IRLR 548. That was a case in which the employment tribunal had found the respondent liable on the basis that he had taken insufficient steps to protect a lesbian teacher from harassment by pupils. At para. 20 Burton J said:
“It appears to us important that, before finding a school, or any similar body, to have subjected an employee to discrimination, not only must the steps be identified which the school failed to take and could have taken but also there must be a conclusion that the taking of those steps could have prevented or reduced discrimination, so as to hold that the school was in those circumstances guilty of subjecting its employee to the discrimination by the absence of those steps being taken. It is to be hoped that circumstances would be rare which a school would find itself liable, but if it is to be found so liable, and other schools are to avoid being found so liable, then there must be such very careful findings of fact, after a full investigation.”
The legal basis on which the respondent in Pearce was found liable was subsequently disapproved by the House of Lords – see [2003] ICR 937 – but we accept that Burton J’s observations remain applicable to cases where liability for third party harassment is in issue on the basis outlined at para. 5 above. There are environments – including prisons, homes such as we are concerned with in the present case, and, regrettably, some schools – where employees may be subjected to a level of harassment on a proscribed ground which cannot easily be prevented or eradicated. In such cases the employer should indeed not too readily be held liable for conduct by third parties which is in truth a hazard of the job; and if it is to be held liable on the basis that insufficient steps were taken to protect the employee in question a tribunal must be prepared to focus on what precisely could have been done but was not done. In the present case, however, it is clear from the Reasons read as a whole – and not least from the fact that it was only held liable in respect of the final part of the period – that the Tribunal was well aware of the importance of not treating the Council as automatically liable for A’s behaviour. As for whether it was sufficiently specific in its findings about what the Council should have done, we agree that the Reasons are not as explicit as could be wished. However, we accept Ms. Smith’s submission that it is legitimate to read them in the context of the submissions made: this point is clearly made in the judgment of the Court of Appeal in English v Emery Reimbold & Strick Ltd . [2003] IRLR 710 (see in particular paras. 26 and 118, each of which refers to consideration of the submissions made to the Tribunal). At paras. 39-48 of her closing submissions before the Tribunal Ms. Smith set out, under the heading “failing to protect C”, what steps could, and she submitted should, have been taken by the Council. Some of those steps were of a general character, such as having a policy or procedure covering such situations. But several are more specific. In particular it is said that the Council should have discussed the specific incidents with the Claimant after they occurred, giving appropriate support and guidance about how he could have handled them better; and worked with A, through various channels which are specified, to get her to modify her behaviour. Ms. Smith emphasised that the former was as important as the latter: even if working with A proved unfruitful (as one might suspect it would), it would have made a real difference to the Claimant to know that the Council was supporting him and addressing his concerns. In our view it is sufficiently clear that those were the steps that the Tribunal had in mind in reaching the conclusion that it did: most of them are in fact expressly referred to, though not in very much detail, at various paragraphs in the Reasons: see in particular paras. 41, 42, 56, 65, 66, 69, 81 and 101.[26]GoA 33-34 : There were in fact only two specific incidents of explicit racial harassment by A against the Claimant (apart from the continuing mocking of his accent) after the key date of 21 February 2008 – on 5 April and 1 June. These were dealt with at paras. 70-81 of the Reasons. The Council says that the Claimant or his colleagues were recorded on both occasions as having “challenged” A’s behaviour; that such challenge had in relation to earlier incidents been treated as an adequate response; and (apparently – though this is not spelt out) that it was accordingly perverse of the Tribunal to find in relation to these occasions that adequate steps had not been taken. This, however, misses the point that the Tribunal had concluded that the information available to the Council from 21 February was sufficient to require a more proactive approach than previously.[27]GoA para. 35 : In his Particulars the Claimant had said that in the incident on 5 April A referred to him as a “Paki”. The point had apparently been made in the Tribunal that he had not made any such allegation in his contemporary report of the incident. The Tribunal is criticised for not making any findings “about such an important discrepancy”. It is not clear to us why the discrepancy is said to be so important, and we cannot see that the Tribunal was under any obligation to address it in its Reasons.[28]GoA para. 36 : This paragraph returns to the question of what are said to be inadequate findings to what the Council could or should have done. We have already dealt with this above.[29]GoA para . 37: There was a witness statement before the Tribunal from an Ofsted inspector, Ms. Foster, to the effect that she met the Claimant the day after the incident of 1 June and that he made no general complaint about the harassment which he was suffering: he did, apparently, refer to the incident the previous day but told the inspector that he was satisfied with the way in which it was being handled and the support which he was receiving. The Tribunal does not refer to this evidence. The Council submits that its failure to do so was an error of law. We do not agree. It might have been better if it had done so, though it is difficult to reach any judgment about that without any knowledge of what the Claimant had said about the evidence in question when it was put to him, as it presumably was. But it is well established that the Tribunal is not required to refer to every piece of evidence before it, and the evidence in question does not appear to us to be so fundamental that the Tribunal was under an obligation to refer to it.[30]GoA para . 38 : The final incident before the Claimant went off sick was on 3 June. The Tribunal found at para. 83 of the Reasons:
“An incident blew up out of nothing and Client A verbally abused Mr. Nourouzi. The Tribunal note that the words recorded on the report were not racist of themselves, but was mindful of the evidence of Denise Simpson, who thought that the abuse was racially motivated.” (Ms. Simpson was another residential social worker who witnessed the incident.) The Council criticises the Tribunal for failing to “make … findings or draw … conclusions about the fact that, although relied before the tribunal, [the incident] was not an act he identified at the time as being racially based”
. We are not clear what is being said here. We accept that the Tribunal seems to have left it ambiguous whether it intended to find that the incident was indeed racially motivated: we suspect that it did, but if there is doubt about the matter and if it has any real significance of the context of remedy, it can no doubt be resolved at the remedy hearing. If, however, some point is being made about the Claimant’s reliability, we can see no basis for it.[31]GoA para. 39 : This paragraph reads:
“On the findings made by the tribunal in relation to each of the incidents complained of, the tribunal failed to explain how it came to the conclusion two incidents or even three over a period of six months can amount to the appellant Allowing the behaviour of A to “persist” or become “normalised” when, each set occasion the behaviour had been challenged.”
This criticism seems to us to show a misunderstanding of the basis of the Tribunal’s conclusion. It found, and was entitled to find, that after the incident of 21 February 2008 more effective action on the part of the Council was required in order to try and improve A’s behaviour and/or assist the Claimant in dealing with it. (3) MIMICKING THE CLAIMANT’S ACCENT[32]Mr. Bourne told us, and Ms. Smith did not gainsay, that the Claimant told the Tribunal (presumably in cross-examination) that he accepted that A would have mocked any strong accent that she detected in those working with her “if she thought it would have the desired effect” – i.e. to rile them: it had indeed found elsewhere that she was adept at targeting the vulnerabilities of staff. He submitted that on the basis of that evidence the Tribunal should have found that A was not racially motivated.[33]This submission seems to us, with all respect to Mr. Bourne, misconceived. A was in fact mocking a racial characteristic of the Claimant, namely his “foreign” accent. That being so, the fact that her underlying motive was not to do with his race – say, to upset those in authority – is irrelevant. In Dhaliwal (above), we said this, at para. 16 (pp. 729-730):
“It is … worth observing that, although establishing the reason why a respondent in a discrimination case acted in the way complained of typically involves an examination of the “mental processes” … of the decision-taker, that is not always so. In some cases, the “ground” of the action complained of is inherently racial. The best-known example in the case-law … is the decision of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 ( [1990] ICR 554 ). In that case the criterion applied by the Council inherently discriminated between men and women, and no consideration of the thought processes of the decision-makers was necessary: the application of the inherently discriminatory criterion could without more be identified as “the reason why” the plaintiff had suffered the detriment of which she complained. It is only because in most cases the detriment complained of does not consist in the application of an overtly discriminatory criterion of that sort that the “reason” (or “grounds”) for the act has to be sought by considering the respondent’s motivation (not motive). It seems to us particularly important to bear that point in mind in harassment cases. Where the nature of the conduct complained of consists, for example, of overtly racial abuse the respondent can be found to be acting on racial grounds without troubling to consider his mental processes.”
To mock a racial characteristic seems to us plainly analogous with overtly racial abuse. (4) CONTEH[34]Shortly before the start of the hearing the Council gave notice of an application for permission to amend his Notice of Appeal. Ms. Smith opposed the application. It is clear that as a matter of history the application was prompted by the decision of this Tribunal (Langstaff J. presiding) in Conteh v Parking Partners Ltd . [2011] ICR 341 , which was promulgated on 17 December 2010 (i.e. after the decision of the Tribunal); and Mr. Bourne relied on Conteh in the relevant part of his skeleton argument.[35]In order to understand the point sought to be raised in the amendment, it is necessary first to set out what was decided in Conteh . The claimant’s employers operated a car park at a new residential development. One of the developers’ staff made a racially offensive remark to her in the course of an altercation in the car park. She alleged that her manager took inadequate steps to deal with the situation. She claimed in the employment tribunal, inter alia , that her employers were, by reason of their inaction, liable under section 3A of the 1976 Act. The tribunal dismissed that claim. The argument in this Tribunal (and no doubt at first instance) proceeded on a different basis from the argument (or concessions) in the present case. No reference was made to the EOC case or the Directive, and the argument proceeded purely by reference to the terms of the section. The claimant’s appeal was dismissed. There are essentially three stages to the reasoning of Langstaff J. on behalf of the Tribunal:(1) At para. 26 he considers whether a failure by an employer to take action to remedy the effects of unwanted conduct by a third party – i.e. inaction – is capable of constituting “conduct” on the part of the employer for the purpose of section 3A. He concludes that it could in principle do so, if – to paraphrase – the situation was one which called for action.(2) At paras. 27-29 he considers whether such conduct could be regarded as having the effect of creating an (in shorthand) hostile environment, given that ex hypothesi the initial offensive act of the third party will already have occurred. As to that he acknowledges that an employer’s inaction may “create” a hostile environment in a case where, but only where, the fact that the employer is doing nothing makes the atmosphere worse: he suggests that such cases are likely to be rare. He then says, at the end of para. 29 (p. 349 A-B): “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.”(3) At paras. 30-31 he makes the point that the employer’s inaction must, to fall within section 3A, itself be on racial grounds. (That is of course what the statute says, but if the EOC case is correctly decided it would appear to be contrary to the terms of the Race Directive : see para. 5 above. But that could not – at least on the law as understood pre- Kücükdeveci ( [2010] IRLR 346 ) – have availed the Claimant in Conteh , since the respondents were a private body.) Langstaff J. goes on to hold that the Tribunal’s findings on points (2) and (3) were unassailable.[36]Mr. Bourne’s proposed amendment is to add a contention that:
“Even if the tribunal came to a permissible conclusion on the facts, that is not sufficient in law to found a case that the Respondent had caused or created that environment where the complaint was one of inaction.”
In other words, it is based on step (2) in the reasoning in Conteh .[37]Ms. Smith’s opposition to the grant of permission to amend was based principally on the well-known line of authorities which makes clear that this Tribunal should only very rarely allow a point to be taken on appeal which was not taken before the employment tribunal – see, most authoritatively, Jones v Governors of Burdett Coutts School [1997] ICR 38 – though she also complained of the lateness of the application and contended that Conteh gave no assistance in the present case in any event. Mr. Bourne accepted that if his amendment did indeed raise a point not argued before the Tribunal he could not advance any basis for, exceptionally, permitting the Council to raise it on appeal. But he denied that that was the case. He referred us to para. 8 of his written closing submissions in the Tribunal, which reads:
“For his claim under section 3A, the claimant must show that the respondent, or someone for whose acts the respondent is liable, engaged in unwanted conduct which had the purpose or effect of violating his dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him. There is no dispute in this case that there were numerous occasions when the claimant made it clear to the perpetrator that such conduct was unwelcome.”
[38]We cannot accept that the point which Mr. Bourne now seeks to raise was argued before the Tribunal – unsurprisingly, since it is clearly prompted by the judgment in Conteh , which had not then been decided. Para. 8 of his closing submissions is making a quite different point. There is no sign whatever Mr. Bourne submitted that the Council could not “create” a hostile environment by inaction – or, more accurately, that it could only do so in the limited circumstances identified by Langstaff J. On the contrary, it is clear from the written submissions of both counsel below, and from the Tribunal’s Reasons, that the case was argued on the basis that the essential issue was simply whether the Council had done enough to protect the Claimant: see para. 7 above.[39]It may indeed be that, as Ms. Smith acknowledged, there is a tension between the EOC decision and the judgment of this Tribunal in Conteh . But it follows from the foregoing that this is not the case in which that tension can be examined. Even apart from Mr. Bourne’s concession, we would not have regarded it as right to allow him to rely on Conteh for the first time by way of appeal. Although the case itself had not been decided, a point about whether inaction could “create” a hostile environment could have been taken before the Tribunal if the Council had wished. If Mr. Bourne’s point were to be taken now and were to be held to be right in principle it would be necessary for the case to be remitted to the Tribunal for further findings addressing the question whether the present case fell into the special category identified by Langstaff J. where inaction could contribute to the creation of a hostile environment. CONCLUSION[40]We accordingly dismiss the appeal.