Appeal No. EAT/56/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27 March 1995
	Judgment delivered 13 June 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MR A C BLYGHTON

	MRS M L BOYLE

TOWER BOOT COMPANY LIMITED	APPELLANT

R JONES	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR SIMON BUCKHAVEN
	(Of Counsel)
	Smith Chamberlain	
	Regent House
	61-62 Oxford Street
	Wellingborough
	Northants
	NN8  4SL

For the Respondents	MR J WHITMORE
	(Of Counsel)
	Commission for Racial 	Equality
	Elliot House
	10-12 Allington Street
	London
	SW1E  5EX

	MR JUSTICE BUCKLEY:  Mr Jones, the Respondent, was employed by the Appellants, Tower Boot Company Ltd (Tower Boot), as a last operative from 16th April to 22 May 1992.  He was then 16 years of age.  He complained to the Industrial Tribunal at Bedford that he had been discriminated against on racial grounds.  He relied on sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976.  The Tribunal found in his favour and Tower Boot now appeals to this tribunal.

	Mr Jones case before the Industrial Tribunal was that his fellow employers, in particular Messrs Clements and Cotter had abused him physically and verbally.  He had been called names such as "chimp" and "monkey", a notice had been stuck on his back which read "Chipmonk are go", metal bolts were thrown at his head, his legs were whipped with a piece of welt and his arm had been burnt with a hot screwdriver.  In due course Clements was to plead guilty to causing actual bodily harm in respect of the latter incident.  Clements also tried to put the arm which had been burnt into a lasting machine causing it to bleed.

	The Tribunal accepted Mr Jones factual complaints, indeed they may not have been seriously challenged.  What has given rise to this appeal is the legal analysis applied by the Tribunal.  Reading the Reasons as a whole it is clear that the Tribunal found that Mr Jones was treated less favourably than other employees and on racial grounds, so that he had been discriminated against within the meaning of S.1(1)(a) of the 1976 Act.  Further the treatment amounted to a detriment within the meaning of s.4(2)(c).  It is to be noted that the acts complained of were the acts of fellow employees.  The most obvious way for them to be brought home against Tower Boot was to persuade the Tribunal to hold that they were acts done "in the course of employment" pursuant to S.32(1).  The Tribunal so held.  S.32(3) provides an employer with a defence in such circumstances, if he proves he took all reasonably practicable steps to prevent the acts.  The Tribunal rejected that ground of defence and thus awarded Mr Jones £5,000.  We shall return to the findings in relation to S.32(3) later, the immediate question is whether the acts described were done "in the course of employment".  On this point we have been unable to reach agreement.  The view of the majority is as follows.

The Majority view

	That phrase has, and had at the time the draughtsman penned S.32, a well established meaning in law.  We would have seen no reason not to adopt that meaning in the present context, in any event.  Since it has been adopted by other decisions of this Tribunal and by the Court of Appeal, see Irving -v- The Post Office [1987] 1RLR 289 we shall certainly do so.

	We were referred to Bracebridge Engineering -v- Darby [1990] 1RLR 3 by Mr Whitmore on behalf of Mr Jones.  That case conveniently cites Aldred -v- Nacanco [1987] 1RLR 292 in which the Court of Appeal quoted the well known statement of principle set out in  Salmond on Torts 18th Edition at page 437, noting that it had received House of Lords approval.  The passage is to be found at page 5 of Bracebridge and we do not propose to repeat it in full.  The nubs of the test is whether the unauthorised wrongful act of the servant is so connected with that which he was employed to do as to be a mode of doing it.  That has to be judged by reference to all the circumstances of the case.  Applying that test to the facts of this case we cannot, by any  stretch of the imagination, see how the acts complained of by Mr Jones, including deliberate branding with a hot screwdriver and whipping, could be described as an improper mode of performing authorised tasks.  With respect the Industrial Tribunal cannot have applied the law correctly and paragraph 9 of the Reasons illustrates that.  In answer to Mr Buckhaven's submission that the acts were outside the scope of employment the Tribunal held - "if we accept the breadth of Mr Buckhaven's submission ......... no act carried out by an employee can become the liability of the employer unless it was expressly authorised."  We presume the Tribunal must have been referring to acts of the type in question, that is acts such as assault not usually regarded as modes of carrying out employment tasks, otherwise the comment makes no sense.  But to hold that an act is in the course of employment on this basis is to rewrite the accepted legal test.  In any event Bracebridge itself illustrates how such an act, in that case an indecent assault, could be in the course of employment.  We are bound to say Bracebridge seems to stretch the test to its limit but the explanation for the decision clearly lies in the fact that the perpetrators, were at the time, involved in disciplinary supervision.  That was not so in the present case and we conclude that Mr Jones' fellow employees were not acting in the course of employment and their misdeeds cannot be laid at the door of Tower Boot by reason of s.32(1).

	Normally that would lead us simply to allow the appeal.  The case, we were told, was presented to the Tribunal on the sole basis of s.32(1) as it was before us, that is on the basis that Tower Boot were responsible for the acts of Messrs Clements and Cotter in particular.  However, the claim might have been upheld on the ground that a Mr Ablett, the foreman in charge of the employees in question, knew of the abuse because Mr Jones' mother complained to him about the burn to her son's arm.  His reaction, as found by the Tribunal, (when considering the statutory defence under s.32(3)) was wholly inadequate.  Thus Tower Boot, through Mr Ablett, arguably subjected Mr Jones to a detriment, namely, exposing him to further racial abuse, which occurred.  There might perhaps have been room for an inference that more senior management knew what was happening, but neither of those lines of enquiry was pursued before or by the Tribunal.  Paragraph 10 of the Reasons illustrates the strength of the findings.

	"10.  Mr Ablett said in evidence that, when Mr Jones' mother first complained about her son's arm having been burned by Mr Clements, he (Mr Ablett) spoke to Mr Clements and Mr Cotter.  Mr Ablett said that they both alleged that Mr Jones had provoked Mr Clements by throwing bolts at him.  However, he took no statement in writing from either of them and took no statement from Mr Jones at all.  Although Mr Ablett said he gave some sort of verbal or oral warning to Mr Clements, this is not recorded anywhere.  Indeed there is no record of any meeting with Mr Clements at all.  Mr Ablett said in evidence that he told Mr Clements that, "The horse play must stop", and thought that he dealt adequately with the incident by moving Mr Jones away to the other end of the factory floor.  Under the respondents' rules any acts of physical violence to or intimidation of any staff members or employees calls for instant dismissal.  In the circumstances, Mr Ablett's action was in our view wholly inadequate, even as against Mr Jones; if indeed Mr Jones had thrown bolts at Mr Clement he too should have been disciplined (not necessarily by dismissal).  Before this was done however, he should have been allowed to give his version of events.  Dismissal of Mr Clements ought to have been seriously considered in the light of the respondents' own rules".

	Paragraph 11 adds to that.  For example:

	"A further aspect of the inadequacy of the way in which the respondents dealt with Mr Jones' complaint, is that, very shortly after Mr Jones having been moved elsewhere, he was subjected to further racial humiliation and embarrassment.  We do not accept that the respondents were unaware that the act Mr Jones complained of (that is the burning) might be racially motivated."

	There is also the finding that the respondents failed to take adequate steps to restrain and control their employees.  Whether that is aimed solely at Mr Ablett or is to be taken at face value is not clear.

	It is hard to criticize the Tribunal for not looking at the case in the way we have suggested, because it was apparently only presented on the basis of vicarious liability for Clements and Cotter.  Mr Jones was represented but not by a legally qualified advocate.
 
	We notice that his originating application to the Tribunal does contain the facts complained of and includes the allegation that-
	"the management were aware of my being racially harassed, but chose not too investigate the matter."

	Tribunals cannot reasonably be expected to make a case for an applicant if it is not put forward and certainly are not entitled to find an act of discrimination which has not been complained of (Chapman & Another -v- Simon [1994] IRLR 124 para 33 & 42).

	We are also conscious of the undesirability of cases being re-opened simply to give one side or the other a second chance to put forward a better argument.

	Indeed that will not be possible.  Nothing we propose in this instance should be taken as detracting from those principles in any way.  However, in this instance the factual basis for the case was contained in the originating application.  Findings of fact which might have supported or gone a long way towards supporting the alternative case we have identified, were made.  What appears to have gone wrong is that Mr Jones' legally unqualified representative did not present the case as he might have done.

	We stress that we are not in a position to judge the alternative case.  We note that "detriment" has been given a broad meaning by the Court of Appeal in Ministry of Defence  -v- Jeremiah [1980] ICR 13.   But, whether Mr Ablett's or the respondents failings or actions could be held to be on grounds of race, inferentially or otherwise, would need to be investigated.  In the end we regard this as a wholly exceptional case, not only in the light of the matters mentioned but because of the apparent strength of the Tribunal's findings against Mr Ablett and the respondents.  We feel that if the matter is not properly considered an injustice would be done.  We therefore direct that the case be reheard by another Tribunal which should not feel bound in any way by our observations, save of course on the "course of employment" point, which we have decided as a question of law.

The Minority View

	The minority member would uphold the Tribunal decision and disallow the Appeal.  In his view the Tribunal found as a fact that the discrimination occurred during the course of employment.  They rightly took into account the requirements of the Code of Practice.  The employers' response to the application given in answers to questions administered by the aggrieved person confirms by answer to question No. 4 that they were aware of their responsibility by inserting conditions into the Contract of Employment.  The employers' foreman, Mr Ablett, was aware of the discrimination and the Tribunal found as a fact that his action was wholly inadequate.  They have found as a result that the employers through their employees have discriminated on grounds of race.

	Two cases were cited on the relevant issue.  Irving & Irons -v- The Post Office can be distinguished by the fact that Mr Irving was not in common employment with the employee of the Post Office and because he was acting outside the scope of his employment.

	It could not be said that Mr Jones' fellow workers were acting outside of the course of their employment in regard to the number of offences committed against Mr Jones.  The employers knew through Mr Ablett that these incidents occurred.  The Post Ofice in the case of Irving did not, until the complaint was made.  If the argument upheld in the Irving -v- Post Office case was to be adopted in this case it would enable any employer to successfully defend on the basis that they did not know what was going on, even though some of their employees were not being properly supervised, for which the employer vicariously is responsible.  One has to ask the question "Under what circumstances could a claim for racial discrimination succeed if it could be held that such actions do not occur in the course of employment?".  The very strict common law principles of vicarious liability were not intended to be rigidly applied in such cases; hence the code of practice.

	In the case of Bracebridge, admittedly a sex discrimination case, the President quoted the Irving -v- Post Office case and the judgment of Sheldon J at (14).  This pointed out that there was in many cases an element of public policy in the problems involved in applying these principles.  The issue is essentially one of fact once the proper principles are applied, and at the end of this paragraph the issue of "in the course of employment" was confirmed.  This case referred to a serious single incident.  The case under consideration related to a number of incidents of which the employers' foreman was aware.

	In the view of the minority member they did not take such steps as were reasonably practicable through their agent Mr Ablett.