![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ice Hockey Super League Ltd v. Henry [2001] UKEAT 1167_99_0203 (2 March 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1167_99_0203.html Cite as: [2001] UKEAT 1167_99_203, [2001] UKEAT 1167_99_0203 |
[New search] [Printable RTF version] [Help]
At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS T A MARSLAND
MRS J M MATTHIAS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR THOMAS KIBLING (of Counsel) Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF24 0EE |
For the Respondent | MR DANIEL OUDKERK (of Counsel) Messrs Russell Jones & Walkes Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH |
HIS HONOUR JUDGE PETER CLARK:
The Appellant (The Super League) is an association of what was, at the relevant time, eight ice hockey clubs playing in England. Amongst those clubs were the Solihull Club and the Sheffield Steelers (The Steelers), first Respondent to the Applicant's claim. The Steelers went into liquidation in April 1999 and took no part in the Tribunal hearing. The Super League controlled the terms and conditions under which professional ice hockey players worked for the clubs. It provided a standard form of employment contract used by all clubs. The following terms are material:
1.4 Term of Employment
The player is employed from the commencement of employment for a fixed period of 32 weeks expiring on 3 April 1999. Should the playing season extend beyond this date, then the contract shall be extended until the day following the last competitive match.
12.1 Provided that the player's employment has commenced with the employer on or prior to 1 November, the first 4 weeks of the players employment with the employer will be treated as a probationary period during which or at the end of which, the employment may be terminated by the employer by giving one week's notice in writing.
The Applicant commenced these proceedings by an originating application presented on 8 December 1998. The application was subsequently amended and then re-amended. The thrust of his case on direct racial discrimination was that he, as a person with national origins in the EU/EEA (European Economic Area) had been treated less favourably on racial grounds than persons whose national origins lay outside EU/EEA, by the inclusion of a probationary clause in his contract. In short, he compared himself as a member of Group A, with the treatment afforded to those in Group B.
The Tribunal was divided. The majority lay members accepted the case advanced on behalf of the Applicant. They expressed their reasoning thus, at paragraph 18 of the Reasons.
"The majority (the Chairman dissenting) accept Mr Oudkerk's argument that any decision based on the need for a work permit as distinct from the fact of a work permit having been issued must be based on a racial consideration. They conclude that by providing the Applicant with an unamended contract he was treated less favourably on racial grounds contrary to Section 1(1)(a) of the Race Relations Act 1976."
The Chairman took a different view. He said at paragraph 19,
"he thinks that the fact that in 1997 the Applicant was effectively in Group B whereas in 1998 he was in Group A, indicates that the decision could not have been on racial grounds. The Applicant's racial origins remain the same and the decision to place them in one group or the other depended on whether or not he had proof of those origins. Applying to the circumstances the test suggested by Lord Goff in James v Eastleigh Borough Council [1990] IRLR 288 and approved by the House of Lords (sic) in respect of race discrimination in Wakeham v Quicke [1999] IRLR 424 namely:
"Would the complaint have received the same treatment from the defendant but for his racial origins? The answer in the minorities view must be yes. It is common ground between Counsel that if the answer was yes then the complaint was made out."
We think that the Chairman may have encountered difficulties with the number of negatives involved in this branch of the law. The majority view prevailed and the complaint of direct discrimination was upheld.
The scheme of the Race Relations Act 1976, for present purposes, may be approached in this way:
1) Has the Applicant shown:
a) Less favourable treatment
b) On racial grounds.
Those two questions, raised by Section 1(1)(a), were identified by Lord Browne-Wilkinson in Zafar v Glasgow City Council [1998] IRLR 36.
2) The question of less favourable treatment may require consideration of two further questions:
a) What are the Applicant's national or racial origins? See Section 3(1)
b) Who is the proper comparator? It must be an actual or hypothetical person of a different racial group and the comparison must be such that the relevant circumstances in one case are the same, or not materially different, in the other. Section 3(4).
3) Once less favourable treatment and a difference in race, when the proper comparison is made, has been established, it will be for the Respondent to give an explanation for the difference in treatment. If that explanation is regarded by the Tribunal as inadequate or unsatisfactory, the Tribunal may, but is not bound to, infer that the less favourable treatment is on racial grounds. Zafar.
4) Put simply, but for his race would the Applicant have been treated in the same way as his comparator? If yes, unlawful discrimination is made out. Motive is irrelevant. James v Eastleigh Borough Council [1990] ICR 554.
At a preliminary hearing in this case on 22 June 2000, three issues were identified for this full appeal hearing. They were:
1) To what racial group did the Respondent, Shane Henry belong?
2) Who is the proper comparator for the purposes of his complaint of unlawful race discrimination?
3) Has the Respondent established as a matter of law that he was less favourably treated than the appropriate comparator on grounds of his race?
In advancing the appeal before us, Mr Kibling identified as his principal argument the second issue, that is the comparator point. With the consent of Counsel we took that as a discrete point and heard argument on it. He submits that on a fair reading of the Tribunal's reasons, they have failed to consider the issue, raised below, as to who was the proper comparator under Section 3(4), or if they did consider it they reached a perverse conclusion in accepting implicitly that there was no material difference between the circumstances of those in Group A and Group B. The material difference, he contends, is that those in Group A did not require a work permit, those in Group B did.
"Accordingly I hold that the need to have either a work permit or indefinite leave to enter is a relevant circumstance in this case. The proper comparison under Section 3(4) is between the Applicant and those who although not Indian citizens are also neither British nor EEC citizens. The relevant circumstances are then the same. All require either a work permit or indefinite leave to enter. All are treated alike in the employer's questionnaire. It is true that this approach treats nationality as a relevant circumstance and that nationality is itself discriminatory in racial terms but it is a discrimination which has been sanctioned if not actually enjoined on employers by statute. I do not believe that the principal which I have quoted from speech of Lord Bridge of Harwich was intended to extend to such a case. I would dismiss this appeal."