TNT Express Worldwide (UK) Ltd v Brown.

Race Discrimination Victimization - time off to consult with an adviser

The Court of Appeal decide that the failure of an employer to allow an employee to take time off to consult a Racial Equality Council adviser in connection with the employee's outstanding race discrimination claim amounted to victimization. This was because other employees were allowed time off in connection with other matters

Under the Race Relations Act 1976, an employee may claim discrimination by way of victimization. Where an employee has made a complaint about his or her employer under the RR Act, and the employer then subjects the employee to a detriment in the course of his or her employment, that employee may be able to claim discrimination by way of victimization in addition to his or her original complaint. In particular, under S.2 of the RR Act, `A person ("the discriminator") discriminates against another person... if he treats the person victimized less favorably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimized has... brought proceedings against the discriminator or any other person under this Act...'.

One of the most difficult aspects of a victimization claim is determining the characteristics of the correct `control group' - that is, the group of employees with whom the victimized employee compares his or her allegedly less favorable treatment. In the case reported below, the question of the correct comparators was the central issue for determination.

Employee refused leave to consult

B, who is black, worked as a local pickup and delivery van driver. B complained to an employment tribunal, alleging race discrimination by his employers, TNT. B was assisted in his complaint by the Racial Equality Council. The tribunal hearing was listed for 10 February 1997. B had arranged to see his adviser during his lunch break on February 5 but the adviser was unable to keep that appointment. Later that day, B asked his manager if he could take leave of absence from work on the afternoon of February 7 in order to attend a consultation with his adviser. B's manager informed him that as far as he was concerned there was no operational reason why B could not take the time off, but that the leave would have to be authorized by `personnel'.

It was customary for TNT to allow employees who gave at least 24 hours' notice a short leave of absence for a range of domestic reasons. This was not generally accompanied by a particularly close enquiry into the reasons for the absence. In the instant case TNT informed B that he could not take leave. B informed them that he would have to take the time off regardless. At lunch time on February 7, B was handed a letter confirming that his requested leave of absence had been refused and stating that he had already taken 20 days of his holiday entitlement of 22 days for that year. The letter further reminded B that failure to obey the instruction would lead to disciplinary action which could result in summary dismissal. Nevertheless, B left work that afternoon and attended his consultation. B's manager encountered no operation difficulties as a result.

Employee dismissed for going AWOL

After two days the tribunal hearing was adjourned and B returned to work on February 12. He was promptly suspended pending a disciplinary hearing into, amongst other things, his failure to obey an instruction on February 7. After the disciplinary hearing, it was decided to dismiss B for his absence without leave. B lodged an internal appeal. After a thorough rehearing, it was decided to dismiss B with notice, rather than summarily.

B amended his tribunal claim of discrimination to include victimization and unfair dismissal. In relation to the victimization claim, the tribunal began by comparing the treatment afforded to B in respect of his request for leave with that of an employee who had sought, on 48 hours' notice, a half day's leave of absence for the purpose of taking professional advice during normal working hours about litigation which was not in any way connected with the employee's employment with TNT. They came to the conclusion that B had been treated less favorably than such an employee would have been.

Tribunal find victimization

The tribunal then considered whether or not there was a causal link between the less favorable treatment accorded to B and the fact that he was taking proceedings for discrimination against TNT. The tribunal held that TNT had failed to offer any rational reason as to why B should not have been allowed time off and that, in the absence of such explanation, the tribunal could conclude that it was because B had pursued a race discrimination claim against the company. In the light of this, the tribunal upheld B's claim that he had been victimized.

The tribunal next turned to consider the issue of B's dismissal. They held that B's dismissal was tainted with racial discrimination and was therefore unfair.

TNT appealed to EAT, who upheld the tribunal's decision. TNT then appealed to the Court of Appeal, arguing that the refusal to allow B to take time off was not victimization, and that B's dismissal was not unfair.

Employers argue that comparison was wrong

Before the Court of Appeal, TNT submitted that the tribunal had failed to identify the correct control group for the purposes of the comparison required by the RR Act in order to establish whether or not B had been victimized. TNT argued that the correct group ought to have been made up of employees who had sought to take time off to consult advisers in connection with claims, other than for race discrimination, against TNT. The tribunal, they contended, had failed to compare like with like by comparing the treatment of B with that of an employee who sought to take time off to consult an adviser about a matter wholly unrelated to that employee's employment with TNT.

In response, B argued that the RR Act does not specify who the comparator should be in cases of victimization. Rather, the RR Act refers merely to the `circumstances relevant for the purposes of any provision of [the] Act'. Therefore, according to B, as long as the comparison was fair and excluded those employees who had also complained of race discrimination, the decision of the tribunal could not be interfered with. B further argued that if the control group suggested by TNT were used, it would lead to the absurd position whereby an employer could defend a claim of race discrimination by way of victimization simply by asserting that the company would have refused time off for an employee who wanted to consult about a sex discrimination claim or another type of discrimination claim. B contended that this would render the value of anti victimization provisions meaningless.

The Court of Appeal began by considering the relevant case law, from which they derived three general rules for determining a victimization claim. First, the employer must, by subjecting the employee to detriment, have treated that employee less favorably than that employer would have treated other employees in the same circumstances. Secondly, the comparison must not include those employees who have also committed a `protected act' - i.e have also complained of an act of discrimination. Thirdly, the employer must have accorded the employee less favorable treatment because that employee had committed a protected act.

Recent case is followed

Their Lordships turned to consider the recent Court of Appeal decision in Chief Constable of West Yorkshire Police & ors v Khan (Brief 660). In that case it was held that a refusal by an employer to provide a reference in respect of an employee, who had on going discrimination claims against the employer, amounted to victimization. The central issue in that case was the determination of the correct comparator. The employer had submitted that the correct comparator in the Khan case was another employee who had brought proceedings, other than under the RR Act, against the employer. The Court of Appeal had rejected this submission on the grounds that the correct approach to identifying the appropriate comparator was to begin by looking at what was requested, rather than the reason why the request was refused. The Court had ruled that the relevant circumstance for the purposes of S.2 RR Act was the request for a reference, not the fact that the request was refused. The control group ought therefore to consist of those employees who had asked for a reference.

The Court of Appeal found that for the sake of consistency they should follow the decision in the Khan case in the instant case. While the tribunal had gone too far in suggesting that the appropriate comparison was with an employee who asked for time off for a reason connected with litigation, this did not invalidate their decision. They had rightly identified that a person seeking leave of absence, for whatever reason, would have been treated differently.

Furthermore, the tribunal had not erred in law in finding that the less favorable treatment accorded to B was caused by the fact that B had made a complaint of racial harassment against TNT. Accordingly, the Court of Appeal dismissed TNT's appeal on this issue. The Court further upheld the tribunal's decision that B had been unfairly dismissed because the dismissal had been tainted with race discrimination.