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A common law action for discrimination

Published online by Cambridge University Press:  02 January 2018

I. B. McKenna
I. B. McKenna*
Affiliation:
University of Lancaster
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Extract

May a worker bring a common law action against an employer who refuses him employment on racial grounds? The established view is that the answer is an emphatic ‘no’. The clearest enunciation of this view has been made by Hepple who explains the alleged absence of a common law remedy for discrimination in employment on both ‘doctrinal’ and ‘practical’ grounds. This article examines these doctrinal and practical underpinnings of the established view and suggests that they may not be as secure as is commonly believed. It is suggested that, while the weight of academic opinion denies the availability of a common law action based on a tort of discrimination, there may be theoretical and empirical grounds for the alternative view that, in appropriate circumstances, a plaintiff might successfully raise in an English court a common law action for racial discrimination in hiring. This is of particular importance in view of the weaknesses of the statutory remedies documented by Lustgarten.

Type
Research Article
Information
Legal Studies , Volume 1 , Issue 3 , November 1981 , pp. 296 - 302
Copyright
Copyright © Society of Legal Scholars 1981

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References

1. Race, Jobs and the Law in Britain, Bob Hepple (Penguin, Law and Society, 1970) pp. 155 and 234.

2. The Race Relations Act 1976, s.53(1) explicitly precludes any civil action by an individual for breach of statutory duty laid down in that Act. However the restriction on civil proceedings applies only where the complainant alleges the discrimination to be ‘unlawful by virtue of a provision of this Act’.

3. Legal Control of Racial Discrimination, L. Lustgarten (Macmillan 1980) pp.180–239.

4. Allen v Flood [1898] AC 1 (HL) at 172–173.

5. Op. cit., p.234.

6. Op. cit., p. 155.

7. Re Noble and Wolf [1948] 4 DLR 123 (Ont HC). Approved in the Ontario C Appeal [1969] 4 DLR 375. Hepple's use of Canadian and Irish authorities context implies that the conclusions are intended to apply to the common general, not merely to English law.

8. Op. cit., p. 234.

9. Op. cit., p. 156.

10. Race and Law, A. Lester and G. Bindman (Penguin, Law and Society, 1972)

11. [1977] 1 RLR 211. A man alleging discrimination on grounds of union activity but outwith the protection of the Trade Union and Labour Relations Act 1974 was the EAT that ‘while you may have been the victim of unfair discrimination, w present state of the law there is nothing you can lawfully and properly do about 212.

12. Prosser Handbook of the Law of Torts (4th edn 1971) pp.3–4.

13. [1932] AC 562, (1932) SC (HL) 31.

14. [1964] AC 1129, [1964] 1 All ER 367.

15. [1977] 2 All ER 492, [1977] 2 WLR 1024, [1978] AC 728 (HL).

16. (1980) 27 OR (2d) 142.

17. Having acknowledged the availability of a common law action the Court found it unnecessary to determine whether an action lay for breach of statutory duty under the Ontario Human Rights Code.

18. RSO 1970 c.318.

19. Freedom Under the Law, Sir A.T. Denning (Stevens 1951) p.51. Lord Denning's words are quoted by Hepple op. cit. p. 143, but not referred to in the Bhadavria judgment.

20. Hepple's reference to past Ontario Authority (see footnote 7 above) in support of the established view tends to enhance the weight that can be attached to Bhadauria as evidence of a disparity between the common law and ‘the established view’.

21. Albeit outwith the field of employment, the case of Constantine v Imperial Hotels Ltd [1944] KB 693, is an instance of judicial willingness to provide a novel remedy for an act of discrimination.

22. Examples of statutory intervention are, in Ontario, the Labour Relations Act RSO 1970 c.232 and in Britain, the Employment Protection (Consolidation) Act 1978. Judicial intervention is apparent in Lloyd's Bank Ltd v Bundy (19741 3 All ER 757.

23. Report of the Race Relations Board for 1966-67 (HMSO 437 p.22).

24. Op. cit., p.85.

25. Hepple, supra, p. 156.

26. [1966] 2 QB 633 (CA).

27. See Lester and Bindman, supra, pp. 52–53. The application of the Nagle principle in Edwards v SOGAT [1971] Ch 354 is an instance of the exercise of a substantial measure of, but not complete, monopoly power.

28. Such statutes include The Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Race Relations Acts 1968 and 1976. (The 1976 Act repealed the 1968 one.)

29. Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130.

30. (1946) 62 TLR 122.

31. [1965] 1 QB 390, [1964] 3 WLR 759, 1964 2 All ER 993.

32. [1969] 1 QBl.

33. See Race Relations Act 1976 s. 1(1)(b) and the White Paper Racial Discrimination, Sept 1975, Cmnd. 6234. For a discussion of the transplantation of the United States concept of indirect discrimination into Britain see Lustgarten, op. cit., particularly Chapter 1.

34. Just before press, the author learned that the Supreme Court of Canada had overturned the lower court's decision in Bhadauria. However, the decision (as yet unreported) turned on the Court's construction of the Ontario Human Rights Code and did not have the benefit of reference by counsel to Nagel v Feilden. While the Supreme Court did not support the arguments presented here, nothing in the decision contradicts them.