Bird v Sylvester: [2007] EWCA Civ 1052

CA: Laws, Gage and Rimer LJJ: 4 October 2007

The claimant employee made a complaint against her employer of race discrimination which was dismissed by the employment tribunal. Subsequently the employer’s solicitors advised the employer that he should commence disciplinary proceedings against the employee, in part by reason of her conduct in making the complaint of discrimination, and wrote a number of letters on the employer’s behalf informing the employee that disciplinary proceedings would be brought against her. The employee made a second complaint of discrimination, alleging, inter alia, that the employer had victimised her, contrary to section 2(1) of the Race Relations Act 1976, by threatening disciplinary proceedings and that the solicitors had knowingly aided the employer to discriminate against her, contrary to section 33(1) of the Act. The employment tribunal struck out the claim in so far as it related to the solicitors and the Employment Appeal Tribunal dismissed an appeal by the employee.

The employee appealed.

The Court of Appeal held:
Although the solicitors had advised that disciplinary proceedings should be taken, they had not participated in the decision to threaten or institute such proceedings, which had been the decision of the employer alone, and the solicitors’ role in advising the employer did not amount to knowingly aiding him to discriminate against the employee within the meaning of section 33(1). The execution by the solicitors of the employer’s instructions in the matter by writing to the employee did not amount to “aiding” within the meaning of section 33(1). Accordingly, the employment tribunal had been right to strike out the claim against the solicitors.

Appearances: Joel Donovan (Bury Metro Racial Equality Council, Bury) for the employee; Richard Carter (Shammah Nicholls, Manchester) for the respondents.