Taxi Driver Online

Aziz v Trinity Street Taxis Ltd and others

COURT OF APPEAL, CIVIL DIVISION

SLADE, NEILL AND MANN LJJ

11, 12 JANUARY, 26 FEBRUARY 1988

Race relations – Discrimination – Victimisation – Circumstances relevant for purposes of legislation – Person victimised treated less favourably than others – Appellant belonging to taxi proprietor's organisation – Appellant alleging fee charged by organisation discriminatory – Appellant making complaint to industrial tribunal and making tape recordings of conversations with members to support his case – Appellant expelled from membership of organisation for making secret tape recordings – Whether appellant victimised in 'circumstances relevant for the purposes' of legislation – Race Relations Act 1976, s 2(1).

The appellant, a taxi proprietor of Asian origin, was a member of an organisation of taxicab operators. In 1983 the organisation imposed a fee of £1,000 on the appellant for the admission of a third taxi to the organisation's radio system. The appellant considered the fee to be unfair and made a complaint to an industrial tribunal of unlawful racial discrimination contrary to the Race Relations Act 1976. In the course of the tribunal proceedings it was disclosed that the appellant had made secret tape recordings of conversations he had had with other members of the organisation who were sympathetic to him but who were not prepared to air their views in public. The complaint was dismissed and the organisation, on learning of the tape recordings, expelled the appellant from its membership. The appellant then made a complaint to the industrial tribunal that, by depriving him of membership, the organisation had unlawfully discriminated against him by way of victimisation, contrary to s 2(1)(c)a of the 1976 Act, because he had brought the earlier proceedings against it under that Act. The tribunal held that, although the making of the tape recordings was an act done by the appellant 'by reference to' the 1976 Act in relation to the organisation within the meaning of s 2(1)(c), the appellant had failed to show that he had been less favourably treated, since there was evidence that the majority of the members of the organisation regarded the making of the recordings as a serious breach of trust and that any member of the organisation making such undisclosed tape recordings would have been expelled. The tribunal accordingly dismissed the complaint and on appeal by the appellant their decision was upheld by the Employment Appeal Tribunal. The appellant appealed to the Court of Appeal.

Held – (1) On the true construction of s 2(1)(c) of the 1976 Act an act could properly be said to be done by a person 'by reference to' that Act if it was done by reference to the race relations legislation in the broad sense, even though the person doing the act did not focus his mind specifically on the provisions of the 1976 Act. In the circumstances, the making of the tape recordings was an act done by reference to the 1976 Act in relation to the organisation (see p 866 e to g j, post); Kirby v Manpower Services Commission, [1980] 3 All ER 334 disapproved.

(2) In considering whether, for the purposes of s 2(1) of the 1976 Act, the complainant had been treated less favourably the treatment applied by the alleged discriminator to the complainant had to be compared with the treatment which the discriminator had applied or would apply to persons who had not done the relevant act. On the facts, the organisation had, by expelling him from membership, treated him less favourably than it treated other persons. However, in order to establish unlawful discrimination within s 2(1) the complainant had to show further that the fact that he had done something 'under or by reference to' the 1976 Act had influenced the discriminator in his unfavourable treatment of the complainant.

Although the act of the appellant in making the tape recordings was a protected act under s 2(1)(c), the evidence did not establish that the mere fact that he had made the recordings for the purpose of collecting material which might be useful if and when he chose to seek redress under the race relations legislation had no bearing at all on the organisation's decision to expel him from membership. The appeal would accordingly be dismissed (see p 866 j to p 867 b, p 869 f to p 870 b j, p 871 b c and p 872 f, post); Cornelius v University College of Swansea [1987] IRLR 141 explained.

Cases referred to in judgment

Cornelius v University College of Swansea [1987] IRLR 141, CA.

Kirby v Manpower Services Commission [1980] 3 All ER 334, [1980] 1 WLR 725, EAT.

Cases also cited

Jones v Secretary of State for Social Services [1970] 1 All ER 145, [1972] AC 944, HL.

Stapley v Gypsum Mines Ltd [1953] 2 All ER 478, [1953] AC 663, HL.
Appeal

Abdul Aziz appealed against the judgment of the Employment Appeal Tribunal(Wood J, Mr A D Scott and Mr J O N Vickers) ([1986] IRLR 435) given on 20 May 1986 dismissing his appeal from the decision of an industrial tribunal (chairman Mr J G Haslam) on 13 February 1985 whereby it dismissed the appellant's claim against the respondents, Trinity Street Taxis Ltd, B Jamieson, C Discombe, M Carter, J Tonge and M Cleaver, under s 2 of the Race Relations Act 1976. The facts are set out in the judgment of the court.

Stephen Sedley QC and Philip Engelman for the appellant.

T R A Morison QC and Charles Falconer for the respondents.

26 February 1988. The following judgment was delivered.

SLADE LJ.

This is an appeal by Mr Abdul Aziz from a judgment of the Employment Appeal Tribunal given on 20 May 1986 ([1986] IRLR 435), whereby the tribunal dismissed his appeal from a decision of the industrial tribunal given on 13 February 1985. By that decision the industrial tribunal had dismissed a claim made by him against the six respondents under the Race Relations Act 1976.

The appellant is a taxi proprietor and operator of Asian origin. The taxi drivers in Coventry have organised themselves into a number of groups. One of them is the first respondent, Trinity Street Taxis Ltd (TST). The other respondents are members of TST who, in one way or another, were concerned in the expulsion of the appellant from TST, which has given rise to the present complaint.

We take the description of TST more or less verbatim from the judgment of the Employment Appeal Tribunal delivered by Wood J. TST is a company limited by guarantee which was incorporated in 1968. Its objects set out in the memorandum of association are mainly to operate as an association to promote the well-being of owners and operators of taxi-cabs registered in the City of Coventry who become members and, in particular, to promote and watch over and protect the general interests of its members. In particular, TST maintains and promotes a radio system for the sole benefit of such members as wish to take advantage of its services. The articles of association make provision for such matters as the election of members and the payment of subscriptions, and, by art 13, a procedure for the expulsion of members.

TST was the successor of a previously unincorporated association of taxi drivers and for many years it has provided a service to the public of a fair system giving a reasonable return to its members. As Wood J observed, this was in many respects a team effort where it was necessary to have a relationship of trust.

In the summer of 1983 the appellant was concerned at what he considered the arbitrary imposition of a fee of £1,000 to enable a third taxi of his to be admitted to the radio system of TST. The industrial tribunal in the present case made the following findings of fact:

'In June and July 1983 Mr Aziz, in broad terms, considered that he was being unfairly treated. His feelings about that had not crystallised so as to focus on the possibility that he might be discriminated against under the terms of the Race Relations Act 1976, but such a possibility was beginning to form in his mind. Mr Aziz considered that there was a danger that the members who were sympathetic towards him might be prepared to express their view privately to him but might not be prepared to do so in public. Indeed he thought that some of the members, apparently sympathetic towards him, might say one thing to him and another thing to the committee of TST. He therefore decided that he would make tape recordings of conversations which he had with members apparently sympathetic to his view. He did so without telling them that he was making such tape recordings. He proceeded, in June and July 1983, to record conversations which he had with Messrs Carter, Cleaver, Wright, Jamieson, Magee, Grodowski and Bates.'

Having consulted the Commission for Racial Equality, the appellant made an application to the industrial tribunal on 6 October 1983 raising his complaint as to the imposition of the £1,000 fee. Until March 1984 none of the members of TST knew that the tape recordings had been made. In that month their existence was disclosed in the course of discovery in the tribunal proceedings.

During April 1984 an identically constituted tribunal heard the appellant's complaint arising out of the imposition of the £1,000 fee and a further complaint by him arising out of a decision of TST made in January 1984 excluding more than one taxi per member from the system. At the same time the tribunal heard complaints against TST and others made by three other complainants, all of Asian origin. The existence of these tape recordings was mentioned at the hearing but they were not put in evidence and their contents were not referred to. On 9 July 1984 the tribunal rejected all these complaints.

Towards the end of July 1984 Mr Carter first heard of the existence of the tape recordings. He had not been called to give evidence at the previous hearings of the tribunal. If he had given evidence, he would have been minded to support the appellant. However, he was annoyed about the tape recordings and decided to take an initiative. This initiative ultimately led to the expulsion of the appellant from TST on 18 November 1984 at a general meeting which by a majority confirmed a decision of TST's committee to the like effect taken on 3 November 1984. At the general meeting a report of TST's secretary was read, which said, inter alia:

'The committee felt that this was an unjustified intrusion, and that trust and good faith between members was and is essential. The recordings made by Mr. Aziz was a serious breach of the trust which must exist between members … The committee wish to state that they recognise the right of any member and endorse that right whatever their race, creed or colour to pursue a grievance in the courts and to obtain judgment. What is called into question however in this case is the conduct of the member Mr. Aziz.'

It is common ground that, in the expulsion of the appellant from TST, the articles of TST were duly complied with.

Section 54(1) of the 1976 Act, so far as material, provides:

'A complaint by any person (“the complainant”) that another person (“the respondent”)—(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II … may be presented to an industrial tribunal.'

Section 11, which is contained in Pt II of the Act, so far as material, provides:

'(1) This section applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists …

(3) It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him … (b) by depriving him of membership … '

It is common ground that TST is an organisation to which s 11 applies.

On 22 November 1984 the appellant presented an application to the industrial tribunal which, while not in terms referring to s 11(3)(b), clearly amounted to a complaint that TST had unlawfully, contrary to that subsection, discriminated against him by depriving him of membership of TST.

As the wording of s 11(3) shows, the mere deprivation of a member of a relevant organisation of his membership is not by itself rendered unlawful by the section. It is thereby rendered unlawful only if the deprivation amounts to 'discrimination' within the meaning of the 1976 Act. Part I of the Act (ss 1 to 3) defines the 'discrimination' to which the Act applies. Section 1 (read together with s 3, which defines 'racial grounds' and 'racial group') defines what is described in the heading to the section 'racial discrimination'. Section 1(1)(a) defines a form of discrimination which occurs where one person 'on racial grounds' treats another 'less favourably than he treats or would treat other persons'. Section 1(1)(b) defines other less direct forms of racial discrimination.

We mention s 1 of the 1976 Act only to stress that the form of discrimination alleged against TST is not that form defined by s 1. No reliance is placed on s 1. The appellant founds his case on the quite different form defined by s 2, which is described in the heading to the section as 'discrimination by way of victimisation'.

Section 3(3) provides in effect that while references in the Act to 'racial discrimination' refer to any discrimination falling within s 1, references to 'discrimination' refer to any discrimination falling within s 1 or s 2.

Section 2, relating to discrimination by victimisation, provides:

'(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—(a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.'

The industrial tribunal said this in para 19 of their decision:

'We ask ourselves whether the making of the tape recordings by Mr Aziz in June and July 1983 was an act which comes within the ambit of paragraphs (a) to (d) of Section 2(1). We find that the making of those tape recordings was an act done by Mr Aziz by reference to the Race Relations Act 1976 in relation to TST. At the time when he had made those tape recordings, Mr Aziz had not focussed his mind specifically on any provision of the Race Relations Act 1976 and in particular upon the provisions of Section 11. If it is admitted, as we agree, that those tape recordings were properly the subject of discovery in March 1984 we cannot see how it can be argued otherwise than that they were made by reference to the Race Relations Act 1976 and the allegations being made by Mr Aziz, which later crystallised as allegations of racial discrimination under Section 11 of the 1976 Act.'

The tribunal thus made a finding that the appellant, in making the tape recordings, had done an act falling within para (c) of s 2(1).

The tribunal then proceeded to consider whether TST had treated the appellant 'less favourably than in those circumstances [it] treats or would treat other persons'. In making this comparison, and following the guidance given by Slynn J in Kirby v Manpower Services Commission [1980] 3 All ER 334, [1980] 1 WLR 725, they apparently regarded the relevant question as being whether other persons who made undisclosed tape recordings of conversations relating to the business and activities of TST in a controversial context would be treated in the same way. They came to the conclusion that they would, saying (in para 21 of their decision):

'… we find that the general attitude of the members of the committee was that an unrepentant tape recordist of conversations between members on controversial issues in connection with the business of T.S.T. should be expelled from membership. We find on the balance of probabilities that a member of T.S.T. who made undisclosed tape recordings of conversations relating to the business and activities of T.S.T. in any controversial context, would be treated on broadly the same basis as Mr. Aziz if a petition was presented for their expulsion.'

Substantially on these grounds the tribunal found that TST had not victimised the appellant within s 2 of the 1976 Act and dimissed his application.

At no time has the appellant sought to rely on para (a) or (d) of s 2(1), although he had previously brought proceedings against TST and had made allegations against them to the Commission for Racial Equality. The reason, no doubt, was that no sufficient causative link between those acts on his part and his subsequent expulsion from membership could be established.

One of his grounds of appeal to the Employment Appeal Tribunal was that the industrial tribunal should have found in the circumstances that the appellant's act fell within para (b) as well as para (c) of s 2(1). However, the Employment Appeal Tribunal rejected this particular submission and it has not been repeated in this court. Counsel for the appellant has not relied on any of the paragraphs of s 2(1) except para (c). He has therefore accepted that, if this appeal is to succeed, one hurdle (among others) which the appellant has to surmount is to satisfy us that the making of the tapes was an act falling within para (c). In these circumstances we propose to deal with this question first.

We have already recited the most relevant findings on this point of the industrial tribunal (in paras 4 and 19 of their decision). Before the Employment Appeal Tribunal the respondents by way of cross-appeal contended that there was no evidence on which the industrial tribunal could have found that any activity of the appellant fell within any of paras (a) to (d) of s 2(1).

The wording of para (c) is 'otherwise done anything under or by reference to this Act in relation to the discriminator or any other person'. Slynn J in Kirby v Manpower Services Commission [1980] 3 All ER 334 at 339, [1980] 1 WLR 725 at 730 said, in relation to the word 'under': 'For it to be done under the Act one must find a specific statutory provision under which the report was made, and there is none.' On this appeal the correctness of this statement has not been challenged and no reliance has been placed by the appellant on the word 'under'. The question is whether he made his tape recordings 'by reference to the Act'.

The Employment Appeal Tribunal in the present case dealt with the matter thus ([1986] IRLR 435 at 438):

'Finally, in considering para (c) we respectfully share the difficulties experienced by the Appeal Tribunal in Kirby. It seems to us that the word “otherwise” indicates that it was intended to cover actions falling outside paras. (a) and (b). As in Kirby we feel that it was probably intended to cover actions relating to proceedings. It is the “sweep-up clause” for paras. (a) and (b). For the same reasons as given in Kirby we do not find that the making of the tapes was an act “under” the Act in para (c). The finding of the Tribunal was that when the claimant made the tapes his feelings about his treatment had not crystallised, so as to focus upon the possibility that he might be discriminated against under the Act. Thus he was merely making speculative investigations, and in our judgment was not doing anything with reference to the Act. However, when he gave those tapes to his solicitor he was, in our judgment, doing such an act. We therefore reject the cross appeal.'

Thus the Employment Appeal Tribunal found that the making of the tape recordings by the appellant did not itself fall within paras (a) to (d) of s 2(1). If this finding were correct, it would, in our judgment, inevitably follow that the appellant's complaint based on s 2 would fail for the reasons given in a respondent's notice. The unchallenged finding of the industrial tribunal was that the appellant was expelled from TST by reason of the making of the tape recordings (not the handing of the tapes to the solicitors). Accordingly, the necessary causative link between the relevant para (c) act and the unfavourable treatment would not be established.

However, one of the grounds of appeal before us is that the Employment Appeal Tribunal erred in law in oversetting the industrial tribunal's finding in para 19 of their decision that the making of the tape recordings (as distinct from the handing of the tapes to the appellant's solicitor) was an act done by him 'by reference to' the 1976 Act in relation to TST within the meaning of s 2(1)(c).

Counsel for the respondents, in seeking to support this part of the Employment Appeal Tribunal's decision, pointed out that the industrial tribunal's finding in para 19 appears to have been based at least in part on the proposition that, because the tapes were properly the subject of discovery in May 1984, they must have been made 'by reference to the Act'. He submitted, and we agree, that this is a non sequitur. He further submitted that, on the findings of fact set out in paras 4 and 19 of the industrial tribunal's decision, the tapes were made at a time when, at best, the possibility of Race Relations Act proceedings was only at the back of the appellant's mind.

We see the force of this submission and of the comment of the Employment Appeal Tribunal that, in making the tapes, the appellant was merely making speculative investigations. We do not think that the industrial tribunal's findings of fact on this point in para 4 of their decision (particularly the second sentence) were entirely happily or clearly expressed. Nevertheless, as we read their decision, they at least found (expressly or by necessary inference) that at the time when he made the recordings (i) the appellant considered that he was being unfairly treated by TST by reason of the imposition of the £1,000 fee, (ii) the possibility was beginning to form in his mind that this might amount to a form of racial discrimination and that correspondingly some form of legal redress might be available to him, (iii) he considered it possible that the secretly taken tape recordings might assist him if and when he chose to pursue that redress.

In our judgment, this was enough to entitle the industrial tribunal as a matter of law to find that the appellant, in making the tapes, had done an act 'by reference to' the 1976 Act in relation to TST. The phrase 'by reference to' is, in our judgment, a much wider one than 'under' and should be read accordingly. An act can, in our judgment, properly be said to be done 'by reference to the Act' if it is done by reference to the race relations legislation in the broad sense, even though the doer does not focus his mind specifically on any provision of the 1976 Act. The inapposite reference by the industrial tribunal to discovery in March 1984 does not, in our judgment, vitiate their conclusion on this point, which should stand.

On this particular point therefore this appeal is, in our judgment, well founded. The making of the tape recordings was, in our judgment, an act done by reference to the Act in relation to TST and we proceed to deal with the outstanding issues accordingly.

The clear legislative purpose of s 2(1) is to ensure, so far as possible, that victims of racial discrimination shall not be deterred from doing any of the acts set out in paras (a), (b), (c) and (d) by the fear that they may be further victimised in one way or another. To this extent the various categories of acts set out in paras (a), (b), (c) and (d) may fairly be described as 'protected acts' and for brevity we will refer to them collectively by this description.

It will be seen that s 2(2) expressly removes from the ambit of protected acts any false allegation not made in good faith. Perhaps certain further restrictions should be placed on the categories of protected acts by a process of necessary implication, eg so as to exclude from para (c) any acts involving a breach of the criminal law. However, we do not find it necessary to express a view on this point. It has not been suggested that the making of the tape recordings in the present case was illegal.

The appellant has, in our judgment, shown that he has done a protected act falling within para (c). However, in order to show that there has been discrimination by victimisation within s 2(1) of the 1976 Act, he still has to satisfy us that, in expelling him from membership, TST (1) 'in any circumstances relevant for the purposes of any provision of this Act [treated the appellant] less favourably than in those circumstances [it] treats or would treat other persons' and (2) did so by reason that the appellant had 'otherwise done anything … by reference to this Act in relation to the discriminator' within the meaning of para (c).

We shall now turn to the first of these two issues and conclude by dealing with the issue of causation.

The effect of s 2 of the 1976 Act was considered in some depth by the Employment Appeal Tribunal in Kirby v Manpower Services Commission [1980] 3 All ER 334, [1980] 1 WLR 725, a decision which has featured prominently in argument in this appeal. In that case the complainant was employed as a clerk at a job centre. Information received by him from would-be employers and employees was to be treated as confidential. He reported to the local council of community relations, inter alia, that one prospective employer, a bus company, had refused to interview a black man and that another, a nursing home, had asked whether an applicant was black. The manager of the job centre, hearing of the complainant's action, moved him to a job as a filing clerk where he had no contact with the public. He complained to an industrial tribunal which dismissed his complaint. On appeal, the Employment Appeal Tribunal upheld the decision. Slynn J in delivering the judgment said

'It seems to us that the words “any circumstances relevant for the purposes of any provision of this Act” which appear not only in s 2 but also in s 1 are referring to the areas with which this Act is concerned. “Any circumstances relevant for the purposes of any provision of this Act” include the field of employment, they include education, they include the provision of goods, facilities, service and premises, and a number of other matters which are specified in the Act. It is only if it is so construed that it is possible to read the phrases “in any circumstances” and “in those circumstances” in a way which seems to us to make sense. So for the present case we have to ask whether there had been discrimination in relation to employment by a person in an establishment in Great Britain of another person.

And one then has to ask the question whether the discriminator has treated the person victimised in the circumstances of employment at the establishment in Great Britain less favourably than other persons by reason of one of the matters alleged. So really two questions have to be looked at. The first question is whether a person (the person victimised) has been treated in the employment field less favourably than the employer would treat other persons in that field. The second question which has to be looked at is whether the employer (the discriminator) has done so by reason of one of the specified matters.'

Slynn J proceeded to hold that the reports of the incidents concerning the nursing home and the bus company were acts done 'by reference to the Act in relation to any other person' (namely, the subject of the discrimination), within the meaning of para (c), in other words, were what in this judgment we have called 'protected acts'. Slynn J then went on to pose the question whether the employers treated the complainant less favourably than they treated, or would treat, other persons by reason of the report which he had made (see [1980] 3 All ER 334 at 340, [1980] 1 WLR 725 at 732). He dealt with the proper approach to this problem as follows:

'The proper approach to this part of the section has led to considerable argument before us, as it undoubtedly did before the industrial tribunal. It seems to us that one thing is plain: that it is not right simply to ask whether Mr Kirby was treated in the same way as other people who did one of these acts which are set out in paras (a), (b), (c) and (d). If that were law, then the employer could only escape if he could show that he had victimised all the relevant people: he would fail if it were shown that he had only victimised some of them. Nor, on the view which we have taken, is it enough simply to consider whether the detriment which is imposed is the same in all these cases. It seems to us that what has to be looked at is the reason given by the employer for the dismissal or removal and to ask whether other persons who committed an act of a similar kind would be treated in the same way or less favourably.'

We pause to observe that, with great respect to Slynn J, we found this particular passage in his judgment a little difficult to follow. We are not quite certain how the second sentence should be reconciled with the last, particularly bearing in mind that the complainant in that case had done an act falling within para (c).

A little later Slynn J summarised the question for decision as being 'whether it has been shown that these employers treated Mr Kirby less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind' (see [1980] 3 All ER 334 at 340, [1980] 1 WLR 725 at 732). Slynn J reiterated that the right question was 'whether people who give away information of this kind or information which is received in confidence would be treated on broadly the same basis' (see [1980] 3 All ER 334 at 341, [1980] 1 WLR 725 at 733). Applying that test, the Employment Appeal Tribunal in Kirby's case concluded that, on the facts as found, there had been no 'discrimination' within the definition contained in s 2(1) of the 1976 Act.

In the present case the industrial tribunal regarded themselves as bound by the same test and came to the like conclusion on the basis of their findings of fact. Wood J, however, in delivering the judgment of the Employment Appeal Tribunal formulated a test in rather different terms, saying

'However the question which we would have to put to ourselves is: “Has the claimant proved, in the relevant circumstances as we have found them to be, that the respondent, judged objectively as a reasonable person in his position, has treated the claimant less favourably than in those same circumstances he would have treated other persons in the position of the claimant ignoring the fact that the relevant circumstances or some of them fell within paras (a)—(d)?”'

In other words the Employment Appeal Tribunal contemplated that, while the relevant comparison should still be with other persons who committed an act of a similar kind, there should be eliminated from consideration, in the course of the comparison, the fact that the act in question was of a protected nature.

It is common ground that the opening words of s 2(1), containing the phrase 'less favourably than', necessitate a comparison of some kind or another. However in the forefront of his argument counsel for the appellant has submitted that the tests of comparison adopted in the present case respectively by the industrial tribunal (following Kirby v Manpower Services Commission) and by the Employment Appeal Tribunal were the wrong tests. The relevant comparison in the present case, he has suggested, is not with other members of TST who have done or might do the relevant protected act, but with those who have not and would not do it.

The key to the correct relevant comparison in our judgment lies in correctly identifying the relevant 'circumstances' for the purpose of s 2(1) (in the present case in the context of a complaint under s 11(3)(b)). For this purpose it is relevant to consider the pattern of the Act. Part I (ss 1 to 3) defines the two distinct types of discrimination which we have already mentioned. Part II (ss 4 to 16) contains a large number of sections which render specified acts or omissions in the employment field unlawful if, but only if, they amount to discrimination (as defined by s 1 or s 2). Part III contains a large number of sections which render specified acts or omissions in the fields of education, goods, facilities, services and the disposal and occupation of premises unlawful if they amount to discrimination as so defined. Part IV makes further specified acts of a discriminatory nature unlawful.

In regard to a claim under ss 2 and 4(2)(c), to which presumably similar considerations would apply, Slynn J in Kirby v Manpower Services Commission apparently considered the relevant 'circumstances' as including the reason given by the employer for the dismissal or removal (see for example [1980] 3 All ER 334 at 340, [1980] 1 WLR 725 at 732). Counsel for the respondents similarly submitted that in the context of a complaint such as this, based on s 11(3)(b) of the Act, the relevant 'circumstances' referred to in s 2(1) must include not only the membership of the complainant of the relevant organisation, but also the termination of his membership and the reasons for the termination. Counsel for the appellant, however, submitted that in this context the relevant 'circumstances' simply refer to the complainant's membership of the relevant organisation. As he put it, the treatment cannot be part of the circumstances.

We would accept the last-mentioned submission. The wording of s 2, in our judgment, plainly contemplates that the relevant circumstances will already subsist at the time when the treatment complained of occurs. Thus in our judgment in the present case, while the appellant's former membership of TST clearly is a relevant circumstance, the expulsion itself, being itself the treatment complained of, clearly is not.

The next question is whether the relevant circumstances include the circumstances giving rise to the termination of the complainant's membership or employment, as the Employment Appeal Tribunal considered in Kirby's case. A complaint made in reliance on s 2 necessarily presupposes that the complainant has done a protected act. If the doing of such an act itself constituted part of the relevant circumstances, a complainant would necessarily fail to establish discrimination if the alleged discriminator could show that he treated or would treat all other persons who did the like protected act with equal intolerance. This would be an absurd result and, in view of the separate, second limb of s 2(1), directed to the questions of causation to which we are about to come, such a construction is not, in our judgment, required for the protection of persons who might otherwise be found to have discriminated unlawfully by virtue of the subsection. In our judgment, for the purpose of the comparison which s 2(1) makes requisite, the relevant circumstances do not include the fact that the complainant has done a protected act.

In our judgment, therefore, counsel for the appellant is right in submitting that the respective tests applied by the Employment Appeal Tribunal in Kirby's case and in the present case, for the purpose of effecting the comparison made requisite by the opening words of s 2(1), were not the correct tests. The treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which he has applied or would apply to persons who have not done the relevant protected act.

Applying this test, it is clear that on the facts of the present case and in the circumstances relevant for the purposes of ss 2 and 11(3)(b) (ie the appellant's membership of TST), TST has treated the appellant 'less favourably than in those circumstances [it] treats other persons', ie by expelling him from membership. On this point the appellant's argument is, in our judgment, well founded.

However, if the appellant is to establish unlawful discrimination within s 2(1), he still has to surmount the hurdle of causation presented by the second limb of the subsection. He has to go on to show that TST so treated him by reason that the appellant had (within the meaning of s 2(1)(c)) 'otherwise done anything under or by reference to this Act in relation to the discriminator or any other person'.

We have already accepted that the act of the appellant in making the secret tape recordings was a protected act falling within the wording of this subsection. On the other hand, the findings of the industrial tribunal make it clear that the mere fact that the appellant had, as it happened, made these tape recordings with the purpose of collecting material which might be useful if and when he chose to seek redress under the race relations legislation had no bearing at all on TST's decision to expel him from membership. That decision had been taken because its members, or the majority of them, considered that the making of the secret recordings had been an underhand action and a breach of trust. On the findings of fact of the industrial tribunal, it seems clear that TST's decision would have been the same, even though the appellant's purpose in making the recording had had nothing to do with the race relations legislation.

In the circumstances, the question arises whether a complainant who relies on para (c) of s 2(1) can surmount the hurdle of causation when he cannot show that the fact that the relevant protected act was done by the complainant under or by reference to the race relations legislation in any way influenced the alleged discriminator in his treatment of the complainant.

Counsel for the appellant pointed out that the purpose of s 2 has an obvious though partial analogy to the law of contempt. (Bingham LJ made the same point in relation to the corresponding s 4 of the Sex Discrimination Act 1975 in Cornelius v University College of Swansea [1987] IRLR 141 at 145.)

He submitted that, under the ordinary law of contempt, cases may arise where persons may find themselves guilty without any degree of mens rea. Under s 2(1) of the Act, he submitted, the state of mind of the discriminator is relevant only in so far as it is relevant in establishing the unfavourable treatment. In a case where a complainant is relying on para (c), he submitted, it is not necessary for the complainant to show that the discriminator had the race relations legislation in mind in applying the unfavourable treatment. In such a case, he submitted, the only intention on the part of the discriminator which is relevant is the intention to do the discriminating act. Indeed, if we understood the tenor of his argument correctly, he would submit that a complainant invoking s 2(1)(c) and s 11(3)(b) could succeed in establishing unlawful discrimination even though the respondent, in terminating his membership of the relevant organisation, had not been aware that the act of the complainant to which the respondent had objected had been done 'under or by reference to the Act'.

In our judgment this construction of s 2(1) cannot be correct. Section 56 of the 1976 Act confers on an industrial tribunal wide powers to order the payment of compensation where it finds that a complaint presented to it under s 54 is well founded. Section 57(1) provides:

'A claim by any person (“the claimant”) that another person (“the respondent”)—(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part III; or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the claimant, may be made the subject of civil proceedings in like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty.'

Section 57(3) provides limited exemption to the following extent:

'As respects an unlawful act of discrimination falling within section 1(1)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds.'

However, s 57 affords no corresponding exemption as respects an unlawful act of discrimination falling within s 2.

Particularly in the light of ss 56 and 57, we are unable to accept that Parliament would have intended that a claimant, in reliance on para (c) of s 2(1), can establish unlawful discrimination within that section even though the evidence shows that the fact that the protected act had been done under or by reference to the race relations legislation in no way influenced the alleged discriminator in his treatment of the complainant. In such a case, in our judgment, on the true construction of s 2(1), if the necessary causal link is to be established, it must be shown that the very fact that the protected act was done by the complainant 'under or by reference to' that legislation, influenced the alleged discriminator in his favourable treatment of the complainant.
[1988] 2 All ER 860 at 871

We accept that a person can treat another 'less favourably than … he treats or would treat other persons' within the meaning of the opening words of s 2(1), even though the relevant treatment itself has no racial element. Paragraphs (a), (b), (c) and (d) of s 2(1), however, are all concerned with the motive which caused the alleged discriminator to treat the complainant less favourably than other persons. In our judgment para (c) no less than paras (a), (b) and (d) contemplates a motive which is consciously connected with the race relations legislation.

In the present case the evidence does not establish that the fact that the recordings were made by the appellant by reference to the race relations legislation in any way influenced TST in expelling the appellant from membership. Subject therefore to referring to one further recent authority, we agree with the Employment Appeal Tribunal that the appellant failed to prove the necessary element of causation and that this alone must dispose of his claim.

In conclusion, we must refer to the recent decision of this court in Cornelius v University College of Swansea [1987] IRLR 141. In that case Mrs Cornelius made a number of complaints against the college under the Sex Discrimination Act 1975. That Act contains provisions concerning discrimination on the grounds of sex closely corresponding with provisions in the Race Relations Act 1976 concerning discrimination on the grounds of race. Section 4 of the 1975 Act also contains provisions relating to discrimination by way of victimisation closely corresponding with s 2 of the 1976 Act which we have to consider. In particular, s 4(1) of the 1975 Act provides:

'A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has (a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970.'

Section 6(2) of the 1976 Act provides:

'It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment.'

The complaints of Mrs Cornelius were substantially four. The third of them was that the college had refused to act on her request for a transfer pending a decision on her appeal against an earlier industrial tribunal decision. The fourth was that the college had refused to allow her complaints to be heard under its grievance procedure, pending a decision of that tribunal. In the context of the third and fourth complaints Bingham LJ (with whose judgment Sir John Donaldson MR and Fox LJ agreed) said (at 145):

'In this appeal the crucial provision is s 4(1)(a). For the appellant's complaint to succeed here it would have to appear, (i) that in refusing or omitting to afford the appellant access for opportunities for transfer or by subjecting her to the detriment of denying her access to the grievance procedure the college treated the applicant less favourably than it would in the same circumstances have treated other persons; and (ii) that it did so because the appellant had brought proceedings against the College under the Act. That is the effect, on the facts here, of reading s 4(1)(a) into s 6(2)(a) and (b).'

Bingham LJ dealt with those two issues as follows (at 145–146):

'There is no finding here that (i) is made out, and it would certainly not be safe to infer that conclusion from the findings which have been made.

The same is, in my judgment, true of (ii). There is no reason whatever to suppose that the decisions of the Registrar and his senior assistant on the applicant's requests for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decisions. No doubt, like most experienced administrators, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings. They accordingly wished to defer action until the proceedings were over. But that had, so far as the evidence shows, nothing whatever to do with the appellant's conduct in bringing proceedings under the Act. There is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied. If the appellant was victimised, it is not shown to have been because of her reliance on the Act. I differ from the EAT's view that a breach of s. 4 was established.'

It would appear from the report that Kirby's case was not referred to in any of the judgments and may not have been cited in argument.

Counsel for the respondents, however, submitted that the observations of Bingham LJ on issue (i) contemplated a comparison similar to that which Slynn J had made in Kirby v Manpower Services Commission. This may or may not be so. However, it is not necessary to pursue the point, since it is, in our judgment, plain that the brief observations of Bingham LJ in the context of victimisation were not part of the ratio of his judgment, which rested on the issue of causation. This is made clear by the sentence beginning 'If the appellant was victimised … ' The ratio of his decision, as we read it, was that the decision of the college relating to the applicant's request for a transfer and a hearing under the grievance procedure were not 'influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act' (our emphasis), and that 'there is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied'. In other words the appellant failed on the issue of causation.

In our judgment the decision in Cornelius v University College of Swansea on the causation issue in no way conflicts with the conclusion which we have reached on the equivalent issue in the present case and could be said to support it. In our judgment, for the reasons which we have given concerning that issue, the Employment Appeal Tribunal reached the right decision. We accordingly dismiss this appeal.
Appeal dismissed. Leave to appeal to the House of Lords refused.
9 June. The Appeal Committee of the House of Lords (Lord Keith of Kinkel, Lord Templeman and Lord Ackner) refused leave to appeal.
Solicitors: Tyndallwoods, Birmingham (for the appellant); D H Walton & Co, Melbourne (for the respondents).
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