Allowing
a discriminatory environment does not ‘aid’ it
and Baker v Okerago, the EAT held that an employer cannot be liable for aiding
an employee’s discriminatory act if the employer has done no more than allow an
environment to continue to exist in which such conduct could take place simply
by default. ‘Aiding’ discrimination means showing that the employer knowingly
collaborated in the unlawful act.
Ms
Okerago claimed that a comment made to her involving the World Cup by a
colleague was racially abusive. She alleged that the colleague asked her who
she would support in a World Cup match, England or her own country? When Ms
Okerago replied “my country” the colleague asked her what she was doing in the
UK and told her to go back to her own f*****g country.
A
tribunal found that the comment amounted to direct race discrimination., The
tribunal also subsequently found that even though the employer had no knowledge
of the racially abusive remark, it was nevertheless liable since it had aided
discrimination in contravention of S.33 of the Race Relations Act in that it
had been complicit in allowing an environment to continue where such conduct
could take place.
The EAT disagreed.
S.33 requires that a person ‘aids’ another person to do an unlawful act. A
person cannot help or assist another to do something which has already done.
There were no findings by the tribunal that the employer had deliberately
condoned a working environment which permitted racially abusive remarks to be
made, to exist prior to, or at the same time as, the incident. In any event,
allowing an environment where such conduct could take place does not amount to
‘aiding’ that conduct, since there has to be evidence that the employer
knowingly collaborated in the unlawful act.
May 2010