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Aiding Racial Discrimination - House of Lords

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CASE 2: Anyanwu (+ another) -v- South Bank Student Union (+ another)

It deals with the issue of liability under section 33(1) of the Race Relations Act 1976, which provides:

"33(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."

The Appellants, Messrs Anyanwu and Ebuzoeme, were students at South Bank University. They were elected as full-time officers of the South Bank Student Union, and were employed by the Union.

Various allegations of misuse of funds and bullying were raised against them by the University (not the Union). Following a disciplinary hearing, they were expelled from the University and banned from entering University premises. Accordingly their employment as officers of the Union ceased (it was not clear whether this was due to an express dismissal or frustration, but this was immaterial to the point before the House of Lords).

The Appellants brought claims under the Race Relations Act 1976 against the Union, as employer, and against the University for knowingly aiding the employer to commit an unlawful act, under RRA 1976 s.33(1).

On an application to strike out the claims, the employment tribunal struck out the claim against the University, the EAT reinstated it, the Court of Appeal struck it out again, and the House of Lords (for the reasons set out below) re-reinstated it!

The phrase 'knowingly aids' in section 33 did not imply that the University had to desire, intend, aim for or bring about the dismissal of the Appellants. All it meant was that the 'aider' had "given some kind of assistance to the other person which helps him 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." (per Lord Hope)

Lord Bingham identified a 3-stage test:
(1) what is the act of the [student union] which is made unlawful by the Act, which it is said that [the University] knowingly aided the [student union] to do?

(2) what is it alleged that [the university] did which knowingly aided the doing of that unlawful act by [the student union]?

(3) do those allegations, if fully established, bring the Appellants complaints against [the university] within section 33(1) of the Act?

By contrast, Lord Hope postulated a 2-stage test:

(1) what was the act done by [the Union] which was made unlawful by the Act?

(2) did the act which is in question aid [the Union] to do that act?
In short, the House of Lords held that the expulsion of the Appellants did 'aid' the Union in dismissing them. This is because if they had not been expelled, they would not have been dismissed.

This is a very wide interpretation of section 33, apparently relying on little more than a causal link between the discriminatory act and liability for the person who 'knowingly aids'. It does not require that the person aiding should have any knowledge that the end result of the principal's acts will be unlawful under the Race Relations Act. Under this test, it would seem that an employment agency who introduced Mr Racist as an employee to a new company will be liable for his racist acts. The decision makes almost turns liability under the Race Relations Act 1976 into a strict liability for the acts of third parties.

One suspects that subsequent courts will restrict this case to its facts. Indeed, this is already being seen in the next decision, Hallam (below).

CASE 3: Hallam v Cheltenham Borough Council (+ others)

This case is on exactly the same point as Anyanwu, above, but on a wholly different set of facts.

The Appellant contracted with the local council to hire a hall for her daughter's wedding. Her husband was of Romany gypsy origin, and her daughter (obviously!) was half-gypsy.

The police, who had suffered problems with local gipsies some months earlier, advised the Council that they were concerned about the risk of disorder. The Council therefore insisted that all guests hold tickets. The Appellant refused, booked another venue, and successfully sued the Council for repudiatory breach of contract, and racial discrimination.

In addition to her claim against the Council, she brought a claim of 'knowingly aiding' a racial act against the police officers.

The trial judge held that there needs to be an element of "joint enterprise", and the police fell short of knowingly aiding the Council to racially discriminate.

In what is probably the shortest House of Lords judgment I have ever seen, the House sets out the facts and refers to Anyanwu, its previous decision, as containing the law.

It then states, without any analysis, that the trial judge's decision was one that was open to him on the facts. It does not seem to have any difficulty in reconciling the trial judge's finding that there must be an element of joint enterprise, with its own views in Anyanwu to the effect that the 'aider' does not need to know of the consequences of its 'aiding' act, or that the principal is about to commit a discriminatory act.

Anyanwu seems to be a case of hard facts making bad law - and the House of Lords already seems to be retreating from this statement of the law in Hallam. Yet there is now a very clear conflict of guidance for tribunals when deciding questions under section 33 of the Race Relations Act. Wet towel time, perhaps?