Sidhu v Aerospace Composite Technology Limited
IDS Brief 637 May 1999 (18.3.99 675/98)
Employers are liable for the action of employees during work-related functions outside working hours and off the employer's premises the Employment Appeal Tribunal has decided. And employers must treat racist motivated violence as racist incidents, and not isolated as simple acts of violence.
Mr Sidhu was employed by Aerospace Composite Technology Limited. He had worked there for a number of years and had a clean record.
At a family day out at Thorpe Park theme park, organised by the Company, Mr Sidhu and his wife were subjected to racial abuse by three white employees, one of whom was a recent recruit to the Company. They attacked him physically, leaving him with his head cut and his glasses broken.
He retaliated by wielding a plastic chair, but did not actually hit anyone with it. He argued that he had been acting in self-defence.
An investigation took place. It was made clear that he viewed the attack as racially motivated, and this was not disputed.
Nonetheless, the Company decided to dismiss both Mr Sidhu and the employee involved in the attack. The basis for them doing this was that violence against members of staff amounted to gross misconduct, and both had been guilty of acts of violence.
Mr Sidhu's internal appeal against dismissal was unsuccessful, and he subsequently pursued a claim for unfair dismissal and race discrimination. The unfair dismissal claim succeeded, but the Tribunal found that there had been no race discrimination: the incident at the family fun day took place "outside the scope" of his employment such that the Company was not responsible for the new recruit's conduct.
Further, the Tribunal found that the dismissal was a legitimate and even-handed response in the context of the Company's policy on violence at work. They did not consider it necessary or appropriate to see the incident in a racial context.
The EAT conclusively overturned this deeply defective decision. In relation to the first point, they decided that the Tribunal adopted too narrow a test.
The question of whether the Company was liable for the incident depended not on the "scope of employment" but on whether the incident took place during the course of employment as broadly defined and this could include work-related functions outside strict working hours and off the employer's premises.
In relation to the second point, the EAT concluded that the Tribunal were wrong to see the incident isolated from its racial context. 'A decision to disregard the fact that the cause of an attack, or harassment, or provocation, or anything else, is racial is a "race specific" decision that has a "race specific" effect and is thus "race specific conduct" '.
Therefore the deliberate failure to consider the racial element of the attack itself amounted to an act of race discrimination. It was not necessary to show that a white person would have been treated more favourably because the attack was race specific.
There are parallels to be drawn with sex harassment cases where the conduct is gender specific.
The Report of Sir William McPherson into the death of Stephen Lawrence, albeit in a quite different and more devastating context, makes the same point. At paragraph 12 of the Recommendations of the Report, a racist incident is defined as being "any incident perceived to be racist by the victim or any other person".
Accordingly, the incident must be investigated as such by those responsible for carrying out the investigation. A failure to do so, according to the Report, may in itself be an act of discrimination.
For employers, therefore, any attempts to be even handed in the treatment of the parties to a racial attack, may, in the light of this EAT decision, be itself racist and unlawful.