Judgments - Anyanwu and Other v. South Bank Student Union and Another And Commission For Racial Equality

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    29. By originating applications received on 21 May 1996 the appellants brought claims of race discrimination against the student union and the university in the employment tribunal. They complained of their dismissal by the student union and their expulsion from the university, alleging discrimination on the grounds of race. In June 1996 the appellants sent to the employment tribunal statements setting out their complaints about the conduct of the student union and the university. Both appellants furnished further and better particulars of their claims.

    30. The solicitors for the university requested a preliminary hearing for the tribunal to consider, inter alia, whether the claim against the university should be struck out as frivolous and vexatious. On 21 March 1997 the preliminary hearing took place before the chairman alone. No evidence was led. On the other hand, in accordance with the customary and sensible practice of case management of the tribunal, the chairman took the opportunity to inquire into the general nature of the case advanced by the appellants against the university. At that time the precise way in which it was alleged that the university aided the student union in dismissing the appellants was not actively under consideration. The issue was whether res judicata barred the claims. Nevertheless, the chairman's elucidation was instructive. Being a critical document I set out the relevant part of his decision letter of 7 April. It reads:

    "2. So far as the issues were concerned, these were clarified and agreed by the [appellants] after some discussion as follows. Both [appellants] complain against the [student union] that they discriminated against them on the ground of race first by excluding the [appellants] from the [student union's] premises on 22 February 1996 and secondly by dismissing the [appellants] on 2 April 1996. The [student union] deny both allegations and indeed claim that the contracts of employment were frustrated and not terminated by any action of the [student union]. The issues in respect of the [university] . . . were agreed as follows:-

      (a) that they interfered with the [appellants] contracts of employment by excluding them from their place of employment.

(b)

      that they [the university] made various allegations [to the student union] against the [appellants] in connection with union funds.

(c)

      that they made allegations against the [appellants] in respect of other employment matters for example intimidation of union staff.

(d)

      that there had been preferential treatment in terms of funding being granted to the [student union].

(e)

      that they used the General Manager of the union to make allegations against the [appellants].

    3. It was alleged that all of these actions were designed to obtain the dismissal of the [appellants]."

On the appeal to your Lordships' House it was conceded on behalf of the university that a decision on the sustainability of the appellants' claim against the university must now take full account of this amplification and clarification of the claims, viewed against the background. But that is not how the matter came before the chairman: he was only considering a technical issue res judicata. In his decision of 7 April 1997 the chairman accepted the legal argument of the university that, by reason of the earlier judicial review proceedings, the claims against the university in the employment tribunal were barred by the doctrine of res judicata.

III. The Employment Appeal Tribunal

    31. The appellants appealed to the Employment Appeal Tribunal against the striking out of their claims against the university. In a judgment dated 19 January 1998 the Employment Appeal Tribunal (Morison P presiding) allowed the appeal. The EAT held that the employment tribunal had erred in ruling that the claims under consideration should have been raised in the judicial review proceedings. The EAT also rejected a claim that it was an abuse of process to allow the claims against the university to proceed. The EAT remitted the claims to the employment tribunal for a substantive hearing on the merits.

IV. The Decision of the Court of Appeal

    32. The university appealed to the Court of Appeal against the decision of the EAT When the appeal came on for hearing on 21 May 1999 Laws LJ raised a new point on the applicability of section 33(1) of the 1976 Act to the alleged liability of the university. The appeal was adjourned and the grounds of appeal were amended to include a ground that the university had not aided the student union within the meaning of section 33(1). On the resumed hearing the new ground was debated. It eventually formed the basis of the judgments of the majority: [2000] ICR 221. Laws LJ gave the leading judgment. He observed (at 227D-F):

    "In expelling the applicants and barring them from the union premises, the university brought about a state of affairs in which the employment contracts were bound to be terminated. In my judgment it is a plain affront to the language of the Act . . . to suggest that in such circumstances the university 'aided' the dismissal of the applicants. The verb 'aid' (to which no special definition is ascribed by the statute) means 'help' or 'assist'. Its use contemplates a state of affairs in which one party, being a free agent in the matter, sets out to do an act or achieve a result, and another party helps him to do it. The first party is the primary actor. The other is a secondary actor. The simplest of examples may be found in the criminal law. A breaks into a house in order to burgle it. B keeps watch outside or is ready to drive off the getaway car. Plainly B 'aids' A. But here, the university is the prime mover. It did not 'aid' (or 'help') the union to dismiss the applicants. It may well be said that it brought about their dismissal. But that is altogether a different thing."

The proposition that as a matter of law a prime mover cannot be said to be under section 33(1) was at the core of the reasoning of Laws LJ. It was the basis of his decision that the university did not aid the dismissal of the appellants. Laws LJ did, however, consider an alternative argument advanced by the appellants. The passage in his judgment reads (at 229H-230C):

    "Miss Monaghan (for Mr Anyanwu) and Mr Crawford (for Mr Ebuzoeme) further submitted that the facts which the applicants alleged disclosed, or at least arguably disclosed, a state of affairs in which the university and the union were, in effect, deliberately aiding each other to discriminate against the applicants. That is not the case made in either applicant's IT1, nor in the summary conclusions of their witness statements. Mr Bean, for the university submitted that the court should look only at the IT1s in order to ascertain what was the case being made against the university. I have some sympathy with this, although I certainly accept that, given the relative informality with which proceedings before the employment tribunal are advisedly conducted, it would be wrong to adopt an excessively technical or formalistic approach to the case. However that may be, something altogether clearer would need to be asserted by the applicants for this court to proceed on the basis that the case being made involved knowing and deliberate mutual assistance between the university and the union, each acting as an independent party. . . . I would found my conclusion on this part of the case upon the simple proposition that the allegation suggested nowhere sufficiently appears in the documents that were placed before the tribunal."

It will be observed that Laws LJ did not consider the amplification and clarification of the appellants' allegations which were recorded by the chairman. That explanation is now by concession before the House and relevant to the issues. Butler-Sloss LJ agreed with the judgment of Laws LJ but said, at p 234F-G, that "the prime mover of the dismissal of the applicants was the student union but its acts were effectively dictated to it by the prior decision of the university to expel the applicants." Butler-Sloss LJ did not deal with the alternative argument of counsel for the appellants which finds support in the chairman's brief summary of the appellants' allegations against the university. Lastly, Pill LJ gave a dissenting judgment in which he adopted a broader interpretation of section 33(1) and, in any event, concluded, at p 232C-D, that "the alleged conduct of the university and the union which preceded each of them [viz the expulsion and dismissal] are so entangled upon the facts alleged that it would not be appropriate to separate them at this stage."

V. The Proper Construction of Section 33(1)

    33. My noble and learned friend Lord Bingham of Cornhill set out the scheme of the 1976 Act and has explained with great care and precision how section 33(1) ought to be construed. I am in full agreement with his interpretation of this provision. It is therefore unnecessary for me to cover all the same ground. I do, however, state the major points germane to the present appeal. The correct approach is to construe the words of section 33(1) in its contextual setting. It creates a form of derivative liability predicated on the commission of an unlawful act by another person. For present purposes the unlawful act against which section 33(1) must be considered is the alleged dismissal of the appellants by their employers (the student union) on discriminatory racial grounds. The issue of knowledge does not need to be considered on the present appeal. Focusing on the concept of knowingly aiding, the word is used in its ordinary sense. While there is no exact synonym the words help, assist, co-operate, or collaborate, convey more or less the right nuance. The word "aid" is therefore not used in either an extensive or a restrictive sense. The critical question is: Does the word aid in its contextual sense cover the conduct of the secondary party? It follows that it is wrong to be diverted by any inquiries not mandated by the statute as to whether the alleged aider was or was not a prime mover or a free agent. I would therefore hold that interpretation of section 33(1) adopted by the majority in the Court of Appeal ought not to be accepted.

VI. The approach of the Court of Appeal to the allegations of the appellants.

    34. Counsel for the university abandoned earlier technical objections to considering the explanation of the appellants' case as recorded by the chairman. Unfortunately, due perhaps to its concentration on the "prime mover" and "free agent" issues, the Court of Appeal did not consider the case of the appellants as amplified and clarified at the preliminary hearing. I have already cited that amplification and explanation in full. Fairly considered it conveys, or is capable of conveying, that the appellants allege, inter alia, that the university in order to achieve the dismissal of the appellants assisted the student union, or co-operated with it, by making allegations against the appellants to the student union to the effect that the appellants were involved in irregularities in connection with union funds and were guilty of intimidation of union staff. Taking into account the summary of the chairman, read with the statements of the appellants, I am persuaded that there is an arguable case under section 33(1) against the university. In my view it would be wrong to strike it out.

VII. Disposal

    35. I would allow the appeal and restore the order made by the Employment Appeal Tribunal on 19 January 1998.

LORD HOPE OF CRAIGHEAD

My Lords,

    36. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn. I am in full agreement with what they say about the interpretation of section 33(1) of the Race Relations Act 1976. As for its application to this case, I agree with Lord Steyn that the appellants have an arguable case against the university and that their claims should not be struck out. I should like however to add these observations, especially in the light of the points made by my noble and learned friend Lord Millett, whose speech I have also had the advantage of reading in draft. This is because, while we are all agreed as to the result of the appeal, there are some differences between us as to the route by which we reach that result.

    37. I should like first to say that, if I had reached the view that nothing that the university is alleged to have done could as a matter of ordinary language be said to have aided the student union to dismiss the appellants, I would not have been in favour of allowing the appeal. I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence. This was the point which Pill LJ was making in his dissenting judgment in the Court of Appeal [2000] ICR 221 when he said, at p 232, that the acts complained of and the alleged conduct of the university and the student union which preceded them are so entangled upon the facts alleged that it would not be appropriate to separate them at this stage.

    38. Then there is the fact that the point of law with which this appeal is concerned was raised for the first time in the Court of Appeal. It was the Court of Appeal itself which drew attention to the terms of section 33(1) of the 1976 Act and invited argument upon it. The appellants had appealed successfully to the Employment Appeal Tribunal against the ruling by the industrial tribunal that their claim should be struck out as frivolous or vexatious. In the result the Court of Appeal held by a majority that the claim should be struck out on an entirely different ground, which neither the industrial tribunal nor the Employment Appeal Tribunal had considered when they were examining the appellants' allegations. The appellants may well have had a genuine sense of grievance at this turn of events.

    39. Nevertheless I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to taken up by having to hear evidence in cases that are bound to fail.

    40. In my opinion however the appellants have an arguable case against the university under section 33(1) of the Act and their claim should be remitted to an employment tribunal so that they may have an opportunity of leading their evidence. I have based this opinion on a reading of the statements which the appellants lodged in support of their applications to the tribunal and on the plain meaning of section 33(1).

    41. The critical words in section 33(1) are contained in the phrase "who knowingly aids another person to do an act made unlawful by this Act". The state of mind that is referred to here is actual knowledge, in contrast to that referred to in section 33(4) which uses the phrase "knowingly or recklessly". The activity which is indicated by the word "aids" is best understood by reading it together with the words "to do an act" which appear in the same phrase. It can be contrasted with the words "instruct" and "induce" which are used in sections 30 and 31. The word "instructs" in section 30 is used to describe something done by a person with authority or influence. It is used in the sense of issuing an order which the other person must, or can be persuaded to, obey. A person who in that sense instructs, induces or causes another person to do an act may also knowingly aid him to do that act, or he may not. This is because the word "aids" indicates an act of a different kind from that which may have caused the person to do the unlawful act. It indicates the giving of some kind of assistance to the other person which helps him to do it. The amount or value of that help or assistance is of no importance. Nor is the time at which it is given. It may or may not have been necessary. All that is needed is an act of some kind, done knowingly, which helps the other person to do the unlawful act.

    42. I would be cautious about selecting examples to illustrate what the word "aids" means which relate to criminal conduct. As Judge LJ said in Hallam v Avery [2000] 1 WLR 966, 972F, caution is required before the principles relating to the liability of secondary parties under the criminal law are used for the purposes of construing section 33(1). Of course, examples may be given to illustrate the difference between causing or persuading somebody to do something and aiding or helping him to do something. But one must bear in mind that the word "aids" is being used in the context which section 33(1) has set for it. This is in the context of acts made unlawful by the Act, which are many and various and may require inferences to be drawn from a complex variety of facts and circumstances. For this purpose I think that it is enough to say that the word "aids" should be given its plain and ordinary meaning. It requires that the facts be examined to provide the answers to two questions: (i) what was the act done by the other person which was made unlawful by the Act? (ii) did the act which is in question aid the other person to do that act?

    43. As for the facts, I agree with Lord Steyn that the agreed list of issues which the chairman of the industrial tribunal set out in his decision letter of 7 April 1997 provides a helpful summary of the appellants' case. But I think that in order to obtain a complete picture of the allegations which the appellants are making against the university it is necessary to look at the statements which the appellants lodged in support of their applications. I note in passing that the issue which was before the tribunal when the agreed list of issues was prepared was whether the claims were barred by res judicata. That was a different issue from the question which has now been raised under section 33(1) of the Act. The appellants will not be confined to the points mentioned in that agreed list when they are presenting their evidence.

    44. The picture which the appellants are seeking to present in these statements is the building up by the university of a climate of racial prejudice against them which the elected officials of the student union were unable or unwilling to withstand. Mr Anyanwu says in his statement that the university continually threatened and intimidated officers of the union, and that the student members of the union were dissuaded from acting against the university. Mr Ebuzoeme says in his statement that the university "instigated" his removal by its actions and inactions. Of course, if that is all that can be proved against the university it will not be enough to show that it "aided" the student union to dismiss the appellants on racial grounds.

    45. But the appellants do not stop there. Mr Ebuzoeme says in his statement that the student union connived with the university to remove him. Mr Anyanwu refers to a letter which was written to him by the Vice Chancellor of the university on 22 March 1996 in which he said that the Board of Governors had approved a new interim constitution for the student union. The effect of the interim constitution was to place the affairs of the student union out of the hands of the student members and into the hands of trustees selected and appointed by the university. They replaced those who had been elected by the student body to act as its representatives. This action appears to have been taken under section 22 of the Education Act 1994, which requires the governing body of every educational establishment to take steps to ensure the fair, democratic and financially accountable conduct of student unions. The letters of 2 April 1996 which had the effect of terminating the appellants' employment were signed by Maggie Hammond as a trustee. It appears that she was one of the persons who had been selected to act in that capacity by the university.

    46. I do not think that it is possible to say one way or the other at this stage, from the narrative that has been given, whether the actions of the university which are alleged against it aided the student union to do the unlawful act of which the appellants complain. But a case to this effect seems to me to be at least arguable. As Miss Cox QC observed in the course of the argument, it was only the student union that could dismiss the appellants. All the university could do was to aid the student union in effecting the dismissal. But the actions alleged against the university were intimately connected with those of the student union, and the connection became even more intimate once the interim constitution had been approved and put in place. The university's alleged actions are said to have culminated in its decision to approve the interim constitution for the student union. It was the interim constitution which enabled the university to appoint Maggie Hammond as a trustee. Within days of her appointment she signed the letters on behalf of the student union by which, in effect, the appellants were dismissed. In my opinion the facts which led to this chain of events require to be investigated.

    47. I would therefore, for these reasons, allow the appeal and remit the matter to an employment tribunal for a hearing against both the student union and the university.

LORD MILLETT

My Lords

    48. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill, with which I respectfully agree.

    49. I share his doubts whether the acts of the university relied upon, if established at trial, are capable of sustaining a finding that the university "aided" the student union to dismiss the appellants. The university may have encouraged, induced or incited the union to dismiss them; these concepts are closely similar and merge imperceptibly into one another. Indeed, the university may well have gone further and caused or procured the union to dismiss the appellants; concepts which are distinct from but also closely related to each other. But aiding is a very different concept from encouraging or inducing on the one hand and causing or procuring on the other. It requires a much closer involvement in the act of the principal.

    50. In my opinion it is, however, unhelpful to have regard to words like "co-operate" or "collaborate", which introduce a different concept in which both parties are principals. Such words serve only to confuse the issue, since they distract attention from the particular act of the principal which the accessory is alleged to have aided. Where two parties join together to achieve a common purpose, they may no doubt be said to aid each other in achieving that purpose. But, in the course of their co-operation, each may play his separate part unaided by the other. I take a simple example. Suppose A and B decide to let a bull loose from a field. A opens the gate and B drives the bull out of the field. They co-operate in letting the bull loose. A may without inaccuracy also be said to have aided B to let the bull loose. But B can hardly be said to have aided A to open the gate. This serves to demonstrate the importance of identifying with precision the act of the principal to which the accessory is alleged to have lent his aid.

    

 
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