ABSTRACT
In Owen and Briggs v James,52 a firm of solicitors refused to employ a black applicant, Ms James. The industrial tribunal found that an important factor in that decision was race. A partner in the firm had stated to the successful candidate: ‘I cannot understand why an English employer would want to take on a coloured girl when English girls are available.’ However, race was not the only factor in the decision to reject the applicant. The industrial tribunal found for Ms James and the firm appealed to the Court of Appeal inter alia on the ground that the decision not to employ Ms James was not solely motivated by race. It was held that to make out a case of discrimination, it was sufficient that race was an important factor in the decision not to employ Ms James. On the other hand, in Seide v Gillette Industries Ltd,53 the EAT said that it was insufficient that race was merely part of the background which led to the treatment in question. Here, anti-Semitic remarks made to the complainant led to his transfer (about which no complaint was made). He subsequently sought to involve another employee in the dispute, which led to a further transfer in order to minimise disruption, this transfer entailing loss of wages. The question was whether this second transfer was on racial grounds. While it was clear that the train of events would not have occurred had he not been Jewish, the EAT said that was insufficient. ‘It does not seem to us to be enough merely to consider whether the fact that the person is of a particular racial group ... is any part of the background ... [T]he question which has to be asked is whether the activating cause of what happens is that the employer has treated a person less favourably than others on racial grounds.’54 The finding that the second transfer was not on racial grounds was undoubtedly made easier by the acceptance that the second employee involved had no anti-Semitic views.55 This approach should be contrasted with Din v Carrington Viyella Ltd,56 in which the EAT correctly observed that it will normally be unlawful to remove the victim from the source of the discrimination, whether or not any loss of pay or status is involved, and even if the motive is simply the avoidance of future unrest.57
