Seide v Gillette Industries Ltd
The facts: Mr Seide, who is Jewish, is employed by the respondents as a toolmaker. Prior to 15.5.78, he was employed on a two-shift basis, working in a team of three. One of his fellow employees was a Mr Garcia. During 1977, Mr Garcia made a number of anti-Semitic remarks to Mr Seide. On 23.9.77, this led to Mr Seide leaving work without permission. When the respondents investigated, they gave Mr Garcia a written warning about his behaviour and gave Mr Seide a written warning for leaving work without permission. Mr Seide was also transferred to the other shift, so that he was now working alongside a Mr Murray.
In April 1978, Mr Murray asked for a transfer from the section because of the relationship that had developed between him and Mr Seide. He claimed that Mr Seide was trying to involve him in the antagonism with Mr Garcia. The management decided that Mr Seide should be removed from two-shift working and go on to day shifts. In this way, he could be supervised by more senior officials of the company.
Mr Seide complained about the company’s decision, which resulted in a loss of wages, through the internal grievance procedure. When his appeals proved unsuccessful, he complained to an Industrial Tribunal that he had been treated less favourably on racial grounds contrary to the Race Relations Act.
An Industrial Tribunal dismissed Mr Seide’s complaint. The Industrial Tribunal concluded that the company had not been activated by anti-Semitic motives, that they had properly carried out the grievance procedure and that the decision to move Mr Seide had not been taken on racial grounds.
The EAT held: The Industrial Tribunal had not erred in concluding that the appellant’s transfer from a two-shift system to day shifts, which resulted in a loss of earnings, was not on racial grounds contrary to the Race Relations Act, notwithstanding that the appellant might not have been transferred had he not been Jewish.
In determining whether there has been unlawful discrimination, the question is whether the activating cause of what happened is that the employer has treated a person less favourably than others on racial grounds. Where there is more than one ground for an employer’s action, it might be enough if a substantial and effective cause for the action is a breach of the statute. However, it is not sufficient merely to consider whether the fact that the person is of a particular racial group within the statutory definition is any part of the background or is a causa sine qua non of what happens. Thus the argument on behalf of the appellant that if an employee’s racial origin is a factor in the chain of causation then as a matter of law it must be taken to be one of the grounds on which the employer acted could not be accepted.
In the present case, although the history of the matter began with anti-Semitic remarks made to the appellant by a fellow employee on the same shift, there was evidence before the Industrial Tribunal that a third employee, who was found not in any way to be activated by anti-Semitic feeling, was unwilling to work with the appellant because the appellant was seeking to involve him in the antagonism which had arisen. Having also found that the company’s officials were not activated by anti- Semitism, the Industrial Tribunal were entitled, therefore, to conclude that the ground upon which the respondents acted in transferring the appellant was not that he was Jewish but because of the difficult industrial situation which had arisen within the particular section of the factory.
Nor had the industrial Tribunal misdirected themselves by looking at whether the company had behaved fairly and equitably and in accordance with the grievance procedure. At the end of the day, the Industrial Tribunal had asked themselves the essential question whether on racial grounds the employers had treated the appellant less favourably than other people. Had the Industrial Tribunal come to the conclusion that the company had behaved unfairly and inequitably contrary to the grievance procedure, however, that might have been material from which they could begin to draw an inference that there had been unlawful discrimination.
Neither had the Industrial Tribunal erred in considering whether the respondents’ motives or intentions were discriminatory on racial grounds. The Tribunal looked at the position in the round and considered whether in fact there was racial discrimination whatever the motives. They did not approach the matter simply on the basis of the company’s motives or intentions.
The Industrial Tribunal had correctly concluded that they had jurisdiction to deal with the appellant’s complaint. Although discrimination on the ground of religion is outside the provisions of the Race Relations Act, “Jewish” can mean a member of a race or a particular ethnic origin as well as being a member of a particular religious faith. The Industrial Tribunal had correctly concluded that what happened in the present case was not because the appellant was of the Jewish faith but because he was a member of the Jewish race or of Jewish ethnic origin.