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We reported on the important and enlightened decision of the Employment Appeal Tribunal in the race discrimination case of Sidhu v Aerospace Composite Technology Limited in Issue 36 of LELR (July 1999). For this edition, we instead have the disappointing and retrograde conclusions of the Court of Appeal overturning the Employment Appeal Tribunal's decision in the same case.
Mr Sidhu had worked for a number of years for Aerospace. At a day out at a theme park for staff and their families Mr Sidhu and his family were racially abused by a white employee of the Company and Mr Sidhu was physically injured. He retaliated by wielding a plastic chair.
The Company accepted that the attack on Mr Sidhu was racially motivated, but in an attempt to be even-handed took the decision to dismiss both Mr Sidhu and the white
employee involved in the attack. The Company considered both employees had been guilty of acts of violence and accordingly this amounted to gross misconduct.
Two main issues arose before the Court of Appeal. Firstly whether the incident in the theme park arose in the course of employment a necessary finding if the Race Relations Act were to apply to the original racial abuse and attack. Secondly whether the failure on the part of the Company to deal with the incident as race-specific in itself amounted to unlawful race discrimination.
The original Tribunal decision had found that the incidents were not in the course of employment because they took place in a theme park and not at the workplace, because they did not take place during working hours, and because the majority of people there were friends and family and not employees. Acknowledging that other cases had reached different conclusions in not dissimilar circumstances, the Court of Appeal nonetheless decided that it was open to the Tribunal to reach this conclusion.
On the second point, the Court of Appeal held that the Company's failure to deal with the incident as race specific was not race discrimination in itself. This was not a case where the "very action complained of is in itself less favourable treatment", such as in a case of racial or sexual abuse or harassment. Instead, the Company's policy was to disregard the racial background to the attack for both employees.
The Employment Appeal Tribunal had focussed on the conduct of the employer in disregarding the racial element of a workplace racial attack to find there had been racial discrimination. It is not to suggest that violence should be condoned. In this connection the conclusions of the Report of Sir William Macpherson into the death of Stephen Lawrence are, as ever, significant. In addressing the issue of racism, the report refers to the failure to adjust policies and methods to the needs of a multi-racial society.
"Such failures can occur simply because police officers may mistakenly believe that it is legitimate to be "colour blind"... Such an approach is flawed. A colour blind approach fails to take account of the special features which such crimes and their investigation possess... It is no longer enough to believe "all that is necessary is to treat everyone the same..."."
It is hard to see how the Court of Appeal can legitimately endorse this "colour blind" approach in the context of the workplace, when it has been so clearly and recently rejected by the Macpherson report in the context of the standards to be expected of the police. However, that is precisely what the Court of Appeal appears to do. As the law now stands it would appear to be legitimate for employers to treat their employees in this "colour blind" way. Racial and sexual abuse that is gender specific will still be discriminatory without the need to provide evidence of a comparator. But conduct motivated in response to racial or sexual abuse may not be protected by the discrimination laws.