Strathclyde Regional Council v. Zafar [1997] UKHL 54

House of Lords
Between
Strathclyde Regional CouncilAppellantZafarRespondent
Before
Lord Browne-WilkinsonLord Slynn of HadleyLord Lloyd of BerwickLord Hope of CraigheadLord ClydeDate 27 November 1997

LORD BROWNE-WILKINSON

My Lords,The appellant is a United Kingdom citizen of Asian origin. He was employed for some ten years by the Strathclyde Regional Council ("the local authority") as a social worker. He was dismissed on 10 March 1989, the reason for his dismissal being given as sexual harassment of clients of the Social Welfare Department of the local authority and of fellow employees.The appellant brought, in all, six sets of proceedings in the Industrial Tribunal, some before and some after his dismissal. In very general terms, those proceedings alleged that, prior to his dismissal, the local authority had discriminated against him and victimised him on racial grounds in not appointing him to certain posts, that there was a long term conspiracy against him, that his dismissal was unfair within the meaning of section 57(3) of the Employment Protection (Consolidation) Act 1978 in that there was no substantial ground for his dismissal and also that the dismissal was carried out in an unfair manner. The appellant further claimed that his dismissal constituted racial discrimination within section 1 of the Race Relations Act 1976.After a very long and complicated hearing, the Industrial Tribunal dismissed all the appellant's allegations save those hereafter mentioned. In particular, the Industrial Tribunal held that the appellant's complaints of racial discrimination and victimisation relating to his failure to obtain certain appointments were groundless, that there was no long term conspiracy against him, that there was no direct evidence of ill-will or malice against him on grounds of his race or otherwise. In general, with one exception, the Industrial Tribunal exonerated the local authority and its employees from the charges made against them. The one exception was that the Industrial Tribunal held that the dismissal of the appellant was unfair and racially discriminatory. It is the reasoning of the Industrial Tribunal on those two issues which is the subject matter of this appeal.The Industrial Tribunal found the dismissal to be unfair, not on the grounds that no reasonable employer could have reasonably decided to dismiss the appellant, but on the grounds that the manner in which his dismissal was conducted was unfair. The Tribunal found that the local authority had been guilty of unreasonable delay and had failed to investigate some allegations at the appropriate time, to issue appropriate warnings and to advise the appellant of the matters in relation to which his conduct was under investigation. On those grounds the Tribunal found the dismissal to be unfair for the purposes of the Act of 1978.The Industrial Tribunal then turned to the claim based on racial discrimination under the Act of 1976, section 1(1) of which provides:
"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;"
The Tribunal held that the local authority had treated the appellant less favourably than it would have treated others and that it had done so on the grounds of his race. It expressed its reasons for reaching those conclusions in the following words: "It will be clear from the Tribunal's earlier comments that they are satisfied that the treatment accorded to the applicant by the respondents fell far below the standards of a reasonable employer . . .
"To treat someone in a way which falls far below the standards of the reasonable employer gives rise to a presumption that that person has been treated in a way different from the way in which others have been, or would be, treated.
"It is also clear that such departure from normal or reasonable standards constitute less favourable treatment, so that the evidence discloses that the respondents have treated the applicant less favourably than they have treated or would treat others.
"The applicant is, of course, a United Kingdom citizen of Asian origin. The Tribunal then considered whether they should infer that the less favourable treatment accorded to the applicant was accorded to him 'on racial grounds'. The Tribunal examined the case law on the subject. It appears to the Tribunal from the decided case law that, once an applicant has demonstrated that (1) he is a member of a minority racial group, and (2) he has been less favourably treated than others have been treated, or would be treated, there is an onus on the employer to give an innocent explanation for the treatment accorded to the complainant (innocent, in this context, meaning an explanation not involving racist considerations). If no such explanation is offered, the Industrial Tribunal should draw an inference of race discrimination. [It is certainly true that the case of King v. Great Britain-China Centre [1991] IRLR 513 , merely suggests that it is legitimate for the Industrial Tribunal to draw an inference of racial discrimination in such circumstances, which implies that an industrial tribunal retains some discretion concerning whether or not the inference should be drawn. Other authorities, however, particularly Chattopadhyay v. Headmaster of Holloway School [1981] I.R.L.R. 487 (especially at 490, para. 18), suggest that, in some circumstances, the Tribunal should draw an inference of discrimination. Much the same attitude was adopted in Baker v. Cornwall County Council [1990] I.R.L.R. 194 (especially at 198 para 30)].
"In these circumstances, the Tribunal has no choice but to draw an inference adverse to the respondents and find that the applicant has been discriminated against by the respondents within the meaning of section 1(1), because no satisfactory explanation justifying the treatment accorded to the applicant has been accepted by them."
The local authority appealed to the Employment Appeal Tribunal against the Industrial Tribunal decision both on unfair dismissal and on racial discrimination. The Employment Appeal Tribunal dismissed the appeal on both grounds. The local authority (being by this time Glasgow City Council, a successor of Strathclyde Regional Council) did not appeal further against the finding by the Industrial Tribunal of unfair dismissal. However, the local authority did appeal to the Court of Session against the adverse finding of racial discrimination under the Act of 1976. The Second Division (The Lord Justice Clerk, Lords McCluskey and Morison) allowed the appeal and set aside the finding of racial discrimination: 1997 S.L.T. 281. The appellant appeals to this House.As will be apparent from the passage which I have cited from its reasons, the Industrial Tribunal made the adverse finding of racial discrimination against the local authority wholly on the basis of two inferences: first, an inference that because the local authority had afforded to the appellant treatment falling far below that of "a reasonable employer" there was a presumption that they had treated the appellant differently and less favourably than others; second, that in the absence of a non-racial explanation for such differential conduct the Industrial Tribunal had no choice in law but to draw the inference that the reason for such less favourable treatment was racial. The Second Division held the Industrial Tribunal to have been in error on both these points. I agree.Although, at the end of the day, section 1(1) of the Act of 1976 requires an answer to be given to a single question (viz. has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts--(a) less favourable treatment and (b) racial grounds--as did the Second Division.

Less favourable treatment

The reasoning of the Industrial Tribunal on this issue is wholly defective. The Act of 1976 requires it to be shown that the claimant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another. In deciding that issue, the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant in which case he would not have treated the complainant "less favourably" for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee "less favourably" for the purposes of the Act of 1976.I cannot improve on the reasoning of Lord Morison who expressed the position as follows:
"The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances."
Mr. Mure Q.C., for the appellant, submitted that there were other grounds on which the Industrial Tribunal might have found that the local authority afforded less favourable treatment to the appellant. I do not find it necessary to consider these submissions in detail. The passage that I have quoted from the reasons of the Industrial Tribunal show that the sole ground for the decision was the inference of less favourable treatment which was an inadmissible inference to draw.

"On racial grounds"

The Industrial Tribunal, having wrongly drawn the inference of less favourable treatment, then held that, in the absence of any satisfactory non-racial explanation for such treatment they were bound by authority to draw the inference that such less favourable treatment was on the grounds of the appellant's race. Mr. Mure submitted that, despite the words they used, the Industrial Tribunal were not in fact treating themselves as bound in law to draw the inference of racial motivation but were reaching a conclusion on all the evidence before them. I cannot so read their reasons. The Industrial Tribunal rejected in the clearest terms all suggestions that, in the earlier stages of the unhappy history of this dispute, the local authority or any of its officers were in any way moved by improper racial prejudice in dealing with the applicant. If the Industrial Tribunal meant to decide that, at this very last stage in the dealings between the parties, the attitude of the local authority on racial discrimination had changed and it had become racially prejudiced, the Tribunal must surely have said so in the clearest terms. Instead they expressed themselves as having "no choice but to draw the inference" of racial prejudice, i.e. they held they were bound in law to draw [the] inference of racial prejudice in the absence of any other satisfactory explanation given by the local authority of the differential treatment afforded to the appellant.That being so, Mr. Mure did not attempt to justify the process whereby the Industrial Tribunal held itself to be bound in law to draw the inference of racial prejudice as being the ground for the discriminatory treatment alleged to have been accorded to the appellant. However, since the authorities are in a state of some confusion (due in part to some words of mine) it is desirable that your Lordships should seek to clarify how the law stands on this matter at the present time.Claims brought under the Act of 1976 and the Sex Discrimination Act 1975 present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them. Over the years since 1975 the courts have sought to give guidance to Industrial Tribunals as to how inferences of fact can properly be drawn in this context. The best guidance is that given by Neill L.J. in King [1991] IRLR 513 at 518. After reviewing the relevant authorities, he said this: "From these several authorities it is possible, I think, to extract the following principles and guidance: (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption [that] 'he or she would not have fitted in.'(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption [that] 'he or she would not have fitted in.'(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)( b ) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)( b ) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in Noone , 'almost common sense.'(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in Noone , 'almost common sense.'(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."In my judgment that is the guidance which should in future be applied in these cases. In particular, certain remarks of mine in the Employment Appeal Tribunal in Khanna v. Ministry of Defence [1981] I.R.L.R. 331 and Chattopadhyay (supra) to the effect that such inference "should" be drawn put the matter too high, are inconsistent with later Court of Appeal authority and should not be followed.For these reasons which are the same as those of the Second Division I would dismiss this appeal.

LORD SLYNN OF HADLEY

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. For the reasons he gives I too would dismiss the appeal.

LORD LLOYD OF BERWICK

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson and for the reasons he gives I, too, would dismiss these appeals.

LORD HOPE OF CRAIGHEAD

My Lords,I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Browne-Wilkinson. I agree with it, and for the same reasons I also would dismiss this appeal.

LORD CLYDE

My Lords,I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Browne-Wilkinson. I agree with it, and for the same reasons I also would dismiss this appeal.

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