The EAT held applying the test in Salmond on Torts.
The counsel for the employers argued that the liability for the acts done by the other employees which had the effect of causing physical and verbal abuse to Jones cannot be put on the employers as such acts cannot be taken as having been done 'in the course of employment' under section 32 (1) of the RRA and therefore there is no question of vicarious liability to the employers.
The contention of the counsel for the employer arguing that the tortuous acts of the other two employees cannot be held as 'acts done in the course of employment' will not hold ground, as the counsel based his argument on the basis of judgment in the case of Irving v The Post Office1, in which case there is no indication that the court relied on the subsection (1) of section32. Hence the counsel for the employer has based his argument on a wrong footing and hence his argument cannot be held valid under the law.
The issue before the Court of Appeal was not to find whether treatment given to Jones can be regarded as a 'racial harassment'. The sole ground of appeal was that the industrial tribunal had been wrong to regard the racial harassment as having been "done by a person in the course of his employment" for the purposes of section 32(1).
4. (i) :
Waite L.J was convinced about the representation of the counsel for the employee on pointing out that there are distinctions that greater remedies are available under the law including damages for the injuries to the feelings than those that can be claimed under Tort against an employer under the common law and "the total absence from the concept of vicarious liability in tort of any provision corresponding to the reasonable steps defence under section 32(3)." Waite L.J preferred the argument of Mr. Allen to that of Mr. Buckhaven due to the fact that there are no similarities between the statutory construction and the purposive construction on a plain reading of the section 32 (1) and that the phrase 'course of employment' is subjected to the gloss imposed on it in the context of vicarious liability on the common law context.
Mr. Allen argued substantial differences occur when the vicarious liability for Tort under the common law is considered against the statutory concept of section32.
Counsel further submitted that the above position of the employers' liability under claim of Torts is to be contrasted with that under section 32 (1) of the RR Act where every action of a person in the course of employment are attributed to the employer "whether or not ... done with the employer's knowledge or approval." This argument of Mr. Allen is having substance and hence is preferable than the argument of M