In recent case, the Court of Appeal decided that an unreasonable disciplinary process is not discriminatory
Can an employee who is dismissed after responding in an aggressive manner to a racist attack, complain of racial discrimination if the dismissal is in line with the employer’s disciplinary policy? This was considered by the Court of Appeal in Sidhu v. Aerospace Composite Technology.
On 4 August 1996, in the course of a company day out at Thorpe Park for employees, their family and friends, an argument broke out among the children. This centred on the fact that Sidhu’s son, being a Sikh, had long hair. Sidhu’s wife intervened and was subjected to racial abuse by another employee, Kevin Smith, and two other white men. This led to a fracas during which the Sidhus were subjected to violence and racial insults. Sidhu responded by picking up a plastic chair and wielding it in an aggressive manner, although he did not make contact with anyone.
The following Monday morning both Sidhu and Smith were suspended on full pay. At subsequent disciplinary hearings, the employer concluded that both employees should be dismissed for violent behaviour in accordance with its disciplinary policy.
Both Sidhu and Smith appealed against their dismissals. In Smith’s case, the appeal panel had little difficulty in concluding that he had been an instigator of the racial attack and that the dismissal decision was a correct one.
In Sidhu’s case, however, the panel was split: initially the majority took the view he was not guilty of violence as he had not struck Smith, but they were swayed by the managing director who said Sidhu had also acted in a violent manner and therefore his dismissal should be upheld.
Sidhu complained that his dismissal was both unfair and discriminatory.
The tribunal upheld his complaint of unfair dismissal on the grounds that Sidhu’s employer had ignored his length of service and the fact he had been provoked. But the tribunal dismissed his complaint of racial discrimination as the employer had applied its disciplinary policy in an even-handed manner and had not treated Sidhu less favourably on the grounds of his race. Furthermore, the tribunal concluded that the incident did not occur in the “course of employment” as it happened outside work and therefore the employer was not liable under section 32(1) of the Race Relations Act 1976.
Sidhu successfully appealed to the EAT which overturned the tribunal’s decision.
Court of Appeal decision
Allowing the employer’s appeal, the Court of Appeal ruled:
• The tribunal had correctly concluded the firm had not unlawfully discriminated against Sidhu in applying its disciplinary policy.
• Although it was unreasonable and unfair for the company to have ignored the fact Sidhu was provoked, this did not mean Sidhu had been treated less favourably on racial grounds.
• The tribunal was also entitled to conclude that because the incident took place at a theme park and the majority of participant were friends and family, the allegedly unlawful acts of racial abuse did not take place in the course of employment for the purpose of section 32(1) of the RRA.
The Court of Appeal’s somewhat controversial ruling is summarised in the words of Lord Justice Brooke, who said, “The policy [of not taking into account provocation] operated just as misguidedly and unfairly whenever any vulnerable person was provoked into violence by taunts or insults they could no longer endure, or by remarks calculated to touch them on a raw nerve. It is impossible to hold that the implementation of this policy falls within the language of Section 1(1)(a) of the RRA l976.
By Anthony Korn, a barrister at 199 Strand Chambers