Weathersfield Ltd v Sargent EAT ICR 1998 Page 198
A white employee who resigned after being instructed to operate a racially discriminatory policy was constructively dismissed and discriminated against on the grounds of race, the Employment Appeal Tribunal has decided.
Mrs Sargent started work for Weathersfield Ltd, a vehicle hire firm. Her employer made clear that she was not to hire vehicles to black or Asian people.
She was told by her employer during her induction course: "We have got to be careful who we hire the vehicles to. If you get a telephone call from any coloureds or Asians you can usually tell them by the sound of their voice. You have to tell them that there are no vehicles available".
Mrs Sargent confirmed with a director of the company that this was indeed their policy.
She felt she could not carry on at the company, resigned and claimed constructive dismissal and racial discrimination.
The case of Showboat Entertainment Centre Ltd v Owens 1984 EAT ICR 65 had already established that to discriminate against a person on the grounds of another person's race can be an act of discrimination for the purposes of the Race Relations Act.
In the Showboat case, the EAT held that Section 1 of the Act "covers all cases of discrimination on racial grounds when the racial characteristics in question are those of the person treated less favourably or of some other person. The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial consideration".
Whilst accepting the authority of the Showboat case, the employers in this case argued that the Industrial Tribunal had made a mistake of law because they failed to ask the question whether or not Mrs Sargent's case could be compared with somebody else.
The employers complained that the IT had made no finding of fact that Mrs Sargent had been treated or would have been treated differently from another person who did not have the same attitude to race.
They argued that because Mrs Sargent did not complain about the policy before she resigned the Tribunal could have no evidence on which they could have concluded that she had been treated differently.
The employers said that the mere giving of an instruction was not enough to establish differential treatment between employees. But Mrs Sargent reacted differently to other employees to the unlawful instruction that "differential reaction" was not enough to constitute "differential treatment" for the purposes of the Act.
The EAT had no difficulty in rejecting the employers submissions which they described as without merit on the facts or in legal terms.
The EAT agreed with the tribunal that it was not difficult to find that in these circumstances Mrs Sargent had been unfavourably treated by comparison with another person in the mere giving of the instruction because she, unlike that hypothetical other person, did not regard herself as being able to continue to work with employers who operated such a policy.
The EAT went on to uphold the Tribunal's finding that the mere giving of the instruction could constitute a detriment for the purposes of Section 4 of the Act. The EAT stressed that it must be made quite clear to employers that policies of this sort are intolerable.
Where breach of contract by employer is not unfair dismissal
Farrant v The Woodroofe School [ICR] 184 1998
The Employment Appeal Tribunal has decided that where an employee is dismissed for a conduct related reason, the lawfulness or the right of the employer to give the instruction was not necessarily decisive in determining whether or not the dismissal was fair.
In September 1987 Mr Farrant commenced employment with the Woodroofe School as a laboratory technician. His contract of employment required him to spend most of his time in the science laboratory with some time to be spent helping service the craft, design and technology area.
In November 1993 technical support services was reorganised and Mr Farrant was required to transfer from the science department and thereafter divide his time between other departments. This he refused to do.
He said his employers were not entitled to change his old job description. The school did not agree and having taken some advice, sacked him for gross misconduct by his failure to obey a reasonable order in that the tasks required did fall broadly under his contract.
The Industrial Tribunal rejected the claim of unfair dismissal on the grounds that although the school was in breach of Mr Farrant's contract, it had given him ample warning and had carried out sufficient consultation before sacking him. The IT found that the school had acted reasonably within the meaning of Section 98(4) of the Employment Rights Act 1996.
On appeal the EAT said the question as to whether or not an employee had been constructively dismissed (ie. by the changes to duties under the contract) would depend upon the contractual position. Was the employer in repudiatory breach of contract entitling the employee to treat himself as discharged from further performance?
Where the claim was for unfair dismissal, and the employer relied upon a refusal to obey an instruction as the reason for dismissal, the lawfulness of the instruction would be central to any question of constructive dismissal, but only of relevance to and not determinative of the fairness of the dismissal.
The EAT decided that the IT had considered all the issues and that on balance the dismissal was fair. It could not be said to be a perverse conclusion.
This decision is of concern. It does however turn on its own facts, and hopefully will not lead to Industrial Tribunals deciding that employers can breach contracts of employment, requiring individuals to undertake different duties which they feel unable to do for whatever reason and avoid a finding of unfair dismissal.
What may have been persuasive in this case is that the school did make every effort to consult with Mr Farrant and wished him to stay and accommodate him. A more cavalier employer may not be so successful.