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Issue 61 (August 2001)

Contents

The devil in the detail
The never ending story
Mixed messages
Information and consultation: the final stage
Pay on the door
Come to my aid!

Come to my aid!

Anyanwu v South Bank Student Union and South Bank University [2001] UKHL 14 [2001] IRLR 305 HL
Hallam v Cheltenham Borough Council [2001] IRLR 312 HL

Someone who helps another person to racially discriminate is as liable as the discriminator him or herself under s33(1) of the Race Relations Act 1976. You have to knowingly help the other person or organisation. This does not mean that the other person has to be cause of the racist action and you the secondary party. Both parties could be equal, lesser or greater contributors but one aids only if he knows the other is discriminating.

This is in addition to the vicarious liability provisions where employers are liable for the action of their own employees and sometimes third parties in discrimination cases.

In Anyanwu both applicants were union officers and were expelled and prohibited from entering the University premises by the University itself. Allegations of misconduct had been made. The student union dismissed them because they could not perform their duties if they could not enter the Union building owned by the University.

They sought judicial review against the University which was disallowed. They then claimed in the employment tribunal that the University had knowingly aided the dismissal which they said had amounted to race discrimination.

The tribunal struck out the claim against the University as a claim of discrimination had been raised before in the High Court and there is no right to bring the same claim twice. The Court of Appeal said the University could not have helped the Union to dismiss the union officers, they caused it. The House of Lords however disagreed. The word "aids" they said bears no technical meaning. It matters not that one begins or causes the act, as long as it can be shown a party knowingly assists another.

Of course, the assistance given to the discriminator has to be provided knowing that an act of discrimination will follow. If someone merely gives a person some information from which they will then decide to act then they have not assisted, or at least knowingly assisted a racist act.

A related point arose shortly afterwards in Hallam v Cheltenham Borough Council.

Hallam, a romany gypsy, wanted to hire the Council's premises for a wedding. The police thought it might attract more gypsies from around about and they shared their thoughts with the Council. Then the Council told the applicant she could only use their premises on terms limiting numbers.

The County Court found the actions of the Council in limiting the numbers who could attend the wedding were racially discriminatory. The judge also held that police had been "helpful", indeed had aided the Council. But they did not knowingly aid in the discriminatory act. One police officer had attended and voiced concerns at the meeting where the Council decided to cancel the booking. Initially. the Court of Appeal said this amounted to "aiding" but that it had not been done "knowingly". Both sides appealed.

The Lords upheld the original County Court judge's view and expressed an appreciation of need for the police "to share" information.

Ayanwu is a crucial decision in establishing that it is not necessary to decide who caused the act. Both cases reassert the need to decide what the discriminatory act is and are a timely reminder of the usefulness of the little used aiding provisions of the RRA. All the culprits can be liable.