Legal Control of Racial Discrimination Other Law Titles from the Macmillan Press

Legal Control of Racial Discrimination Other Law titles from The Macmillan Press

Alcock and Harris: Welfare, Work and the Law Beirne: Fair Rent and Legal Fiction Morris et al.: lustice for Children Plender and Usher: Cases and Materials on the Law of the European Communities Raisbeck: Law and the Social Worker Roberts: The Reform ofPlanning Law Sorensen: Manual ofPublic International Law Legal Control of Racial Discrimination

Laurence Lustgarten School of Law, University of Warwick

M © Laurence Lustgarten 1980

First published 1980 by THE MACMILLAN PRESS L1D London and Basingstoke Associated companies in Delhi Dublin Hong Kong Johannesburg Lagos Melboume New York Singapore and Tokyo

Filmset in Great Britain by V ANTAGE PHOTOTYPESETIING CO. L1D Southampton and London

ISBN 978-0-333-24388-6 ISBN 978-1-349-16439-4 (eBook) DOI 10.1007/978-1-349-16439-4

This book is sold subject to the standard conditions of the Net Book Agreement.

The paperback edition of this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hlred out, or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. To my Parents Contents

Pre/ace ix Acknowledgements xvii Table 0/ Cases xix Table 0/ Statutes and Statutory Instruments xxii Table 0/ Abbreviations xxvii

Part I The Meaning of Discrimination

1 Concepts of Discrimination - History and Theory 3 2 Indirect Discrimination - The Legal Issues 43 3 The Grounds of Discrimination 65 4 Victimisation 87

Part 11 Discrimination in Employment

5 Black Workers - Discrimination and Disadvantage 95 6 Employment Discrimination Law - The Main Provisions 113 7 Exclusions and Exceptions 135 8 The Public Sector 152 9 Trade Unions and Shop Stewards 164 viii Contents

partm Enforcement

Introduction 185 10 Individual Enforcement of the Act 189 11 Problems of Proof 204 12 Individual Remedies 224 13 Administrative Enforcement 240

Coda 253

Statutory Appendix 256

Index 261 Preface

This book is neither simply a study of law in the form of a textual exegesis, nor of race relations in a general sense. It is rather a look at a social problem - the ill treatment and inferior material conditions of a portion of the nation's population marked off from the majority by colour and ethnic origin - through the eyes of a lawyer. Consequently much that a sociologist, social psychologist or economist would include in a work on this general subject is not to be found: nothing is said about theories of racial strati fication, of prejudice or of microeconomic models of discrimination. Con versely, much of the work is devoted to matters that the black letter lawyer has defined out of his realm, as with the chapters on the condition of racial minorities in employment and the theoretical examination of concepts of discrimination. Thus the social reality of racial discrimination and disadvan tage defines the setting of the study, a substantial proportion of which is devoted to a highly detailed examination of the Race Relations Act 1976 ('the Act' or 'the 1976 Act') and related employment law. Moreover, if law, while constrained by the wider social structure, simul taneously helps to alter it, one must exatnine the extent to which the legal structure - a shorthand for a complex of institutions, inherited habits of thought and modes of procedure, and the roles and ideology of the profes sion - may itself channel or block the effort to achieve a particular social reform by legislative enactment. lust as one does not fully comprehend 'society' if one treats law as a discrete factor, or ignores its specific pro visions, so one does not understand 'law' if it is regarded simply as a system of rules, concepts and formal procedures. This sense of an interlocking and dynamic - perhaps the best adjective is 'kaleidoscopic' - relationship has shaped the definition of the issues considered here, the relative importance accorded specific topics and the overall organisation of the study. Analysis is made all the more difficult by the fact that the central concept under scrutiny is philosophically problematic and highly contentious. Early x Preface in this study I became fascinated by the way in which the evolution of the legal concept of discrimination mirrored policymakers' altered perceptions of a social problem. I also found the effort to co me to grips with the moral and philosophical dilemmas raised by some of the proposed remedies alm ost physically painful, and became convinced that non-whites in nations like Britain and the United States would remain locked permanently in inferior conditions with little assistance from anti-discrimination law unless the concept was broadened to take adequate account of the element of collec tive deprivation. I have attempted to formulate at least the rudiments of a suitably expanded concept in the last seetion of Chapter 1. Readers may judge whether the effort has succeeded, but I am certain that philosophical and jurisprudential analysis is essential to adequate treatment of the subject. This study is confined to discrimination in employment, although there are occasional mentions of other spheres. This arises partly from length limitations imposed by the economics of publishing, but the primary impor tance of employment in dictating the economic position of minorities seems clear enough. Moreover, the analyses in Parts I and III are for the most part capable of direct application to other areas, like housing, by anyone with knowledge of them. The restriction also facilitates examination of the way in which employment discrimination and the governing law fit into the broader framework of industrial relations and labour law. Consequently, the crimi nal prohibition of incitement to racial hatred now found in s. 70 of the Act, and the wider problems of public order and protection of minority co m munities from racist attacks, are entirely omitted. For the same reason, little is said about the immigration laws, despite the fact that they are the most explicitly discriminatory legislation presently in force in Britain. Given a perspective which sees law in relation to the social phenomenon to which it is addressed, discussion of sex discrimination had to be omitted. Although various forms of discrimination may share certain behavioural sources, sex discrimination ultimately derives from the different social roles occupied by women, in turn an outgrowth of the family, one of the most fundamental institutions of society. Nor do women live, or function econ omically, separately from men in daily life in the way that blacks may move in realms utterly apart from.most whites. Moreover, different institutions and practices serve as barriers to the economic advancement of minorities than to women. Given these contextual variations, it would be impossible in a work of this length to do either subject justice. However, since many of the provisions of the Sex Discrimination Act 1975 and the RRA are identical, a large part of the discussion of case law concerns litigation under the SDA, and anyone more concerned with that problem should find this book relevant. The study aims to reach a wide and diffuse audience. I should hope that it would be of interest to scholars and students of law and social science generally, to persons who may wish to learn of their rights or obligations Preface xi under the Act, and equally to that amiable figure whom 1 hope is not a pIe asant fiction - the general reader/concerned citizen. This has meant attempting to strike a balance between stating what is elementary or obvious to the legally-trained specialist and leaving the layman in ignorance. 1 have found this extraordinarily difficult and must ask the indulgence of those who may intermittently be bored or mystified, since I am quite sure that in pI aces 1 have not got the balance right.

Theorising on a breathtakingly vague, and often vacuous, level has become the vogue in academic social science in this country over the past few years. It now seems impossible to pick up a book which does not seek to locate its particular subject-matter in the context of late/corporate/crisis ridden/viriIlent capitalism. None the less, whilst individual efforts are only too easy to parody, the intellectual movement has had the valuable result of making scholars aware that any topic they have defined as a social problem has both a temporal-i.e. historical-dimension, and a structural one - that it is part of the deeper-lying social organisation and power relationships of the society that produced it. This theoretical orientation has the further virtue of reminding an author that he cannot escape having an implicit sociology and moral standpoint that shapes his work, whether or not he expresses them. 1 should thus explain why 1 have chosen not to articulate certain assumptions which implicitly underpin my analysis and approach. The first concerns the general theoretical relationship between law and economic and/or social change. The first of these is weH beyond my present needs except where discussed at one point in the opening chapter. Though I have found broad accounts relating the development of law to the evolution of capitalism, whether Marxist or Weberian in orientation, historically quite illuminating, they see m less useful in analysing the role of law within a short and contemporary period. Within this tight frame, 1 posit that legal factors exercise an independent and often strong influence; in the present jargon, that law is relatively autonomous. The question of the relationship of law to social change is really a way of asking the same theoretical question within the narrower time frame and under the influence of a sociological tradition, largely American, which does not posit even the underlying paramountcy of economic factors. This tradition has produced a vast amount of writing, much of it concerned to examine the effect of varlous constitutional decisions of the Supreme Court.1 1 fear, however, that most of the studies 1 have read have not proven very helpful, since they either theorise at a level so general that I at anyrate cannot apply them to a concrete problem, or because the theories produced are a form of premature generalisation, see king to extrapolate conclusions xii Preface from a narrow case study into a shaky structure which cannot support the intellectual weight loaded upon it. Therefore, in addition to certain postu lates about legal remedies set out at the beginning of Chapter 12, I have adopted certain assumptions. These are that enactment of a law genuinely intended to achieve a certain end may be more or less successful, depending upon whether it is weIl designed in terms of four factors: (1) Clarity, both in the policy it is supposed to implement and in the precise statutory language; (2) Internal inconsistency - being without important debilitating exemp tions or loopholes; (3) Whether it contains effective enforcement procedures; (4) Whether adequate resources are allocated to bringing about the prodaimed end. Within this framework I also emphasise the importance of the ideas and perceptions of those formulating policy; I am confident that 'good faith failures of understanding are both common and critical in explaining out comes. For different reasons two other important questions are omitted. The first is any general analysis of the causes of racial discrimination. Again, I have found general typologies either unconvincing or incapable of illuminating the specific situation that cancerns me - the condition of black workers in Britain in the late 1970s. I would agree that there is a significant element of truth in the analysis offered by Professor Rex2 which stresses that the problems considered here cannot ultimately be seen apart from the broader social process of black immigration from paar former colonies in the Third World to (largely) undesirable jobs in advanced industrialised countries. None the less this dearly is an oversimplified picture, since - to mention only two obvious points - Greece and Turkey were not cola nies of Germany or Switzerland, and the condition of white migrant workers in these countries (and of Iberians in France) is at least as unequal and unpleasant as that of blacks in Britain. At least in the present state of theorising there are severe limits in what general theories can usefully add to policy-oriented analysis of a specific problem. Marxist analysis has in my opinion been of even less value; only recently have more sophisticated writers of this orientation begun to acknowledge that race is not simply dass in same peculiar guise or disguise.3 Thus I have dealt with the question of causation at the level of empirical observations about the forms and incidence of employment discrimination. I have assumed that an effectively designed law - judged by the criteria enunciated in the preceding paragraph - would cause people to change their behaviour, given that it is addressed primarily to businessmen whose goals are profit and avoiding distractions, not becoming political figures or folk martyrs. The second omission is consideration of why the legislation was enacted. Preface xiii

One often bears wbat may be termed tbe 'pacification' or 'conspiracy' tbeory - tbat its real purpose was to defuse black protest or tbe emergence of a strong black political movement, to give tbe appearance of responding to grievances but in reality to do little.4 Doubtless policymakers sougbt to avoid long-term troubles, but as an explanation of tbe mainsprings of policy I find tbis quite unconvincing: my own view, sbortly and dogmatically stated, is tbat tbe legislation, especially tbat of tbe 1970s, proceeded from tbe moral concern of a relatively small number of individuals, witbin and outside tbe government. In a sense wbicb requires no apology, it was an elitist measure, carried tbrougb, as was tbe sex discrimination legislation, witb surprisingly little organised support or opposition from botb beneficiaries and affected interests. My criticisms of tbe statute tbus proceed by taking entirely seriously tbe proclaimed objective of reducing discrimination and pointing out wbere it seems likely to fail. I empbasise tbe extent to wbicb tbe flaws result from errors of perception and analysis, timidity, and from tbe influ ence of constraints imposed by tbe normal workings of tbe legal system. Adberents of tbe 'pacification' tbeory may of course see in my criticisms - wbicb are numerous and at times severe - confirmation of tbeir views, but tbis divergence is tbe essence of scbolarly controversy.

III

Tbe book is divided into four parts. Tbe first examines tbe concept of discrimination, botb as a pbilosopbical problem and a matter of statutory interpretation. Analysis of tbe precise grounds of discrimination governed by tbe Act, and of discrimination by means of victimisation, round out tbis conceptual section. Part II commences witb a review of findings about racial discrimination and dis advantage in employment and tben explains tbe application of specific provisions of tbe Act. Part III looks at tbe macbinery created for tbe enforcement of tbe Act. Tbe Coda, after abrief recapitula tion of tbe main criticisms voiced earlier, offers some speculations about tbe prospect of acbieving significant advances in racial equality in tbe 1980s. A few points relating to tbe use of legal material sbould be mentioned. Tbe first is tbat repeated reference is made to case law under tbe American federal Civil Rights Act of 1964. Not only, as will be seen, was tbis legislation in many respects tbe progenitor of tbe Britisb statute, but increasingly American sex discrimination and equal pay cases are cited witb respect by Englisb courts,S wbicb may be expected to make at least as great use of tbem in construing tbe 1976 Act. It is argued in Chapter 2 that, if tbe Act is to work, courts and tribunals must adopt tbe kind of policy orientated interpretation long employed by American judges and, if Lord Denning is correct, by tbe European Court of Justice;6 in Cbapter 11 it is suggested tbat some aspects of tbe approacb of tbe American courts to xiv Pre/ace

evidentiary questions be adopted. I do not wish to be understood to argue that the American approach to statutory interpretation, or other aspects of that legal system, are generally superior. However, for reasons I hope are found convincing, it seems extremely unlikely that Parliament's dec1ared objective of reducing racial discrimination and dis advantage by legal means can be achieved without substantial alteration of several traditional doc trines, habits of thought and modes of proceeding characteristic of the English legal system. The American practice is therefore more than usually relevant. Second, there is very little reported case law on the Act. Most litigation does not go beyond industrial tribunals, whose decisions are usually unre ported and difficult to obtain, and are in any case of limited importance as precedents. Although I have cited such material where it seemed appro priate and was accessible, I have given unusually great emphasis to Parliamentary discussion, particularly in Standing Committee. This material is of course supposed to be a sealed book to judges, but there is no reason why a scholar should impose such blinkers on himself, particularly as many important issues of policy, and questions of interpretation, considered here were directly addressed in that forum. I have spoken throughout entirely in terms of English law, although the Act applies equally to Scotland. However, the minuscule non-white popula tion north of the Border, and the minor importance of matters not subject to uniform statute law, permitted me, without obvious embarrassment, to preserve my invincible ignorance of Scottish law. It is not possible to have the notes placed at the bottom of each page. I regret the inconvenience of reference and have tried to mitigate it by asterisking those notes which supplement the argument in the text, rather than simply cite a legal or academic source. It also seemed desirable not to c1utter the text with the unnecessary mention of case names where a note would suffice. However, for legal specialists to whom the detail is important, the Table of Cases is organised to facilitate more precise reference, in the manner explained at the head of the table. The notes appear at the end of relevant chapters. Certain sections of the Act are of particular importance, and at certain points in the text arguments are made based on the precise wording of certain provisions. A Statutory Appendix consisting of critical sections and those whose language readers might wish to examine themselves, ha.s therefore been compiled. In contrast to the Preface, I have tried to avoid the use of the first person singular throughout the text. This is not to give the impression of a spurlous objectivity - it should be obvious that I want to see racial discrimination ended and racial inequality diminished - but because an author's persona has always seemed to me an awkward interloper in scholarly work. I have followed the illogical but prevailing English practice of using the Pre/ace xv term 'black' to describe both the various Asian ethnic groups as well as West Indians. Like virtually all studies and public discussion, I have omitted consideration of African and Chinese minorities in Britain. I was able to take account of material available to me as of 31 December 1979.

IV ABRIEF HISTORICAL CONSPECTUS

Apart from requiring innkeepers and common carriers to offer their facilities without regard to colour or race, the common law imposed no restrictions on the power of private persons - employers, landlords, shop owners and the like - to refuse to have dealings with any person on these grounds, or indeed any others. Legislation was therefore required to impose roles of public law on hitherto private decisions. Private Members' Bills were first offered in the 1950s, but the initiallegislation did not come until the Race Relations Act 1965. Apart from its criminal prohibition of incitement to racial hatred it was a very limited enactment. It prohibited only the 'practice' of discrimination in 'places of public resort' (s. 1) and, with exceptions, discriminatory restrictions on the disposal of tenancies (s. 5). Its inadequacies became increasingly apparent, and under the aegis of a new Horne Secretary, Roy Jenkins, the ground was prepared for further legisla tion. Areport by an independent research organisation, Political and Economic Planning (PEP), published in April 1967, documented the vast extent of racial discrimination in Britain.7 Later in the same year, acommit tee of lawyers led by Professor Harry Street produced an analysis (the 'Street Report') of the possible forms and mechanisms of enforcement and amendment anti-discrimination law might contain.8 Its analysis drew heavily upon the experience of American states and Canadian provinces. In the following year the Race Relations Act 1968 ('the 1968 Act') made employ ment discrimination, with certain exceptions, unlawful for the first time in British history. It also extended the sweep of the legislation in relation to discrimination in housing and the provision of goods, facilities and services. Administratively, it reconstituted and strengthened the Race Relations Board ('the Board'), which was supposed to receive and investigate complaints of violations and achieve satisfactory redress of the victim's grievance. Some, but by no means all, of the proposals in the Street Report found their way into this legislation. Flaws and weaknesses in the 1968 Act soon emerged, particularly in relation to the mechanism of enforcement and the narrow definition of discrimination. In 1973 PEP undertook another national survey, and in a series of Reports that so on followed, documented the persistence of massive discrimination, particularly in employment.9 Meanwhile awareness of the diverse dimensions of discrimination began to broaden, and in 1970 the XVI Pre/ace

Equal Pay Act was passed, although it did not take effect unti11975. When the Labour Party took office in 1974, Roy Jenkins was once again Horne Secretary. The Sex Discrirnination Act 1975 (SDA) so on ernerged, with rnany provisions drawing upon the Board's experience and criticisrns of the 1968 Act. The Race Relations Act 1976 followed. Alilegisiation conceming racial discrimination is now found in this statute; its predecessors are wholly repealed. The Board has been abolished and replaced by the Cornrnission for Racial Equality ('the CRE' or 'the Cornrnission').

University 0/ Warwick L.L. 15 January 1980

NOTES 1. A large sampie may be found in L. Friedman and S. Macaulay, Law and the Behavioural Sciences (Bobbs-Merrill, 2nd edn, 1979) chap. 3, esp. pp. 488-98, which Jists numerous studies. See also Evan, 'Lawas an Instrument of Social Change', in A. Gouldner and S. Miller (eds) Applied Sociology (Free Press, 1965) pp. 285-93. 2. In Race,Colonialism and the City (Routledge, 1973), pp. 203 -23. See now also J. Rex and S. TomIinson, Colonial Immigrants in a British City (Routledge, 1979) chap.1. 3. Gabriel and Ben-Tovim, 'Marxism and Race', 7 Econ. & Soc. 118 (1978). 4. This theory has been most fully articulated by Sivanandan, 'Race, Class and the State', 17 Race & Class350 (1976). See also Freeman and Spencer, 'The State, the Law and Race Relations in Britain Today', (1979) 31 Cu". Leg. Probs 117. 5. E.g. Clay Cross (Quarry Service) Ltd v. Fletcher, [1979] 1 All E.R. 474, 478 (Lord Denning M.R.), 481 (Lawton L.J.); Shields v. E. Coomes (Holdings) Ltd, [1979] 1 All E.R. 456, 464 (Lord Denning M.R.), 470 (Bridge L.J.); Ministry 01 Delence v. Jeremiah, [1979] 3 All E.R. 833, 836, per Lord Denning M.R. 6. See his comments on the European Court's 'teleological' method of interpreta tion in James Buchanan & Co. Ltd v. Babco Forwarding & Shipping (U.K.) Ltd, [1976] 2 W.L.R. 107, 112. It should be noted, however, that on appeal, [1978] A.C. 141, the House of Lords was distinctly hostile to Lord Denning's eulogisation and application of 'Continental' methods of interpretation, at any rate in the circums tances of that case. 7. It was published in popular form as W. Daniel, Racial Discrimination in England (Penguin Books, 1968). 8. H. Street et al., Report on Anti-discrimination Legislation (PEP, 1967). 9. The popuIar version (see Table of Abbreviations) is cited repeatedly in this book. The relevant original Reports, both published by PEP, are Racial Disadvan tage in Employment (Report No. 544, June 1974) and The Extent 01 Racial Discrimination (Report No. 547, September 1974). Acknowledgements

We in Britain are enduring aperiod dominated by politicians and media sages who would have us believe selfishness is a social virtue and anything of value must be measured in cash. I therefore take a particular pleasure in stating that in addition to the normal reliance of scholars on the published work of others, I could not have written this book without the generous contribution of time, effort and ideas of literally dozens of people. Lack of space precludes naming all of them here - many are acknowledged in various note references - particularly as a full list would include a substantial proportion of my colleagues at Warwick and Queen's University, Kingston, Ontario. Several were kind enough to read, criticise and discuss drafts of various chapters. Numerous persons in diverse Faculties of universities throughout the country, and in several departments of government, courte ously and promptly supplied me with unpublished information. I wrote to all of them as a stranger; virtually no one refused assistance. Every scholar writes on a more than half-covered slate; even Newton averred, 'I could not have seen so far, had I not stood on ye shoulders of giants'. I should like to pay tribute to three books on this general subject, cited so often as to be mentioned in the Table of Abbreviations: Bob Hepple's Race, Jobs and the Law (2nd edn); Antony Lester and Geoffrey Bindman's Race and Law, and Ian Macdonald's The Race Relations Act 1976. In scope, ambition and intended audience they are very different from each other, and from the present study - which in many respects attempts to pick up the trail where the first two left off - but I should be weIl pleased if many people regarded my work as highly as I do theirs. The Nuffield Foundation's generous award under its Small Grants Scheme enabled me to obtain the services of Vicky Giles, Rob Ross and Paul Statham as research assistants at various stages. Their efforts facilitated and accelerated completion of many aspects of the book. Thanks are also due to the British Institute of International and Comparative Law, and Messrs Sweet & Maxwell/Stevens, for their kind permission to reprint portions of articles first appearing in journals published by them, and to Her Majesty's XVlll Acknowledgements

Stationery Office for permission to reproduce portions of the Race Rela tions Act 1976 in the Statutory Appendix. I am deeply indebted to my secretary, Sally Venables, and her colleagues, for typing repeated drafts of the manuscript despite the pressures of a great volume of other work, and difficulties engendered by my pre-literate handwriting and several requested deadlines which, in retrospect, seem blatantly unreasonable. My wife, Donna Dickenson Lustgarten, bore more than her fair share of the emotional strain involved in the writing. She has also made a significant contribution to the arguments in Chapter 1, and to the language and clarity of a goodly portion of the whole book. Despite these great debts, all brickbats relating to errors, omissions and confusions must be aimed at my head alone. Table of Cases

NOTE: Cases appearing in italics are those which are referred to by name in the text. The page in the text and the corresponding footnote are given together in the Table below, along with all other plaees in whieh the ease is cited.

Thus, 'Cassell & Co. Ltdv. Broome 187, 231/238' indieates that the ease appears in a footnote on p. 187, and by name in the text on p. 231 with the corresponding footnote on p. 238.

Abdul Manan (Re) 84 Brindley v. Tayside Health Bd 132 Adriaan de Peijper 63 British Aetors Equity Association v. Ahmadv. ILEA 79/92,80/92 Goring 182 Albemarle Paper Co. v. Moody 56/63, British Railways Board v. 225/37,239 Natarajan 221/223 Allen v. Flood 221 Brown v. Gaston County Dyeing Maehine Ambaeh v. Nowiek 83 Co. 222 Amiesv. ILEA 193/201 Bulmer (H.P.)Ltdv.J. Bol/ingerS.A. 70/83 Amministrazione delle Finanze dello Stato v. Simmenthal SpA No. 2 83 Cassel v. Inglis 238 Areher v. Cheshire and Northwieh Building Cassell & Co. Ltd v. Broome 187,231/238 Society 92 eRE v. Associated Newspapers Group Anorney-Generalv. BBC 91/92 Ltd 132 Azam v. Secretary of State for Horne Commis v. Heron Corpn 86 Department 84 Contraetors Association of Eastem Pa v. Secretary of Labor 39 Bains v. Avon C.c. 61 Cooperative Committee on Japanese Barela v. United Nuclear Corpn 92 Canadians v. A.G. for Canada 238 Bamett v. W. T. Grant Co. 222 Costa v. ENEL 83 Barraclough v. Brown 201,251 Cumingsv. Birkenhead Corpn 55/62,238 Bessenden Properties Ltd v. Comess 63 Birmingham City Distriet Council v. Davies v. British Railways Board 132 Beyer 92 DeFunis v. Odegaard 41 Bohon-Mitchell v. Common Professional Department of the Environment v. Fox 131 ExaminationBoard 45/61,64 Devis(W.) & Sonsv. Atlcins 63,251 Bonsor v. Musicians' Union 38,182 Donoghue v. Stevenson 39 Boume v. London Transport Executive 221 Bowen v. Motorcycle (Sales) Ltd 86 Ealing London Borough Council v. Race Boyehuk v. Symons (Holdings) Ltd 132 Relations Board 66/82,85,251 Bradford Corpn v. fv:yers 84 Early (CharIes) Ltd v. Smith 202 Bramble v. Clibbens Car Hire 131 Edwards v. SOGAT 182,238 Bridgeport Guardians v. Bridgeport Civil E.E.O.C. v. Kallir, Philips, Ross Ine. 92 Service Commission 40 Espinozav. FarahMfg Co. 67/83 xx Table 0/ Cases

Esterman v. NALGO 178/182 McGhee v. N.C.B. 238 Mansfield Hosiery Mills v. Bromley 63 Faramus v. Film Artistes Association 182 Marler (ET) Ltd v. Robertson 92 Fisher v. Oldham Corpn 163 Massey v. Crown Life Insurance Co. 131 Foley v. Connellie 83 Meeks v. National Union of Agricultural and Fox v. Stirk 83 Allied Workers 62,222,223 Foxley v. Olton 134 Milliken v. Bradley 39 Franks v. Bowman Transport Co. 239 Mills v. Brook Street Bureau of Mayfair Ltd 222 General Aviation Services (UK) Ltd v. Mills v. Cooper 85 TGWU 170/180 Ministry of Defence v. Jeremiah xvi,134 Graham v. Richardson 83 Moberley v. Commonwealth Hall 206/221 Gregory v. Litton Systems, Inc. 62 Griffiths (In Re) 83 Nagle v. Feilden 201,232/38 Griggsv. Duke Power Co. 4/37,9/38,53/62 Norton Tool Co. Ltd v. Tewson 133 Gubala v. Crompton Parkinson Ltd 238 Norwest Holst Ltd v. Department of Trade 251 Haiesv. Ke" 208/222 Norwich Pharmacal Co. v. Commissioners of Heatons Transport (St Helens) Ltdv. Customs and Excise 163 Transportand General Workers' Nothm,'ln v. Bamet London Borough Union 169,170/180 Council 127/133 Holiday in Italy (Re a) 83 Horne v. Poland 238 O'Farrell v. N.D.L.B. 181 Hussein v. Saints Complete House Osborne v. A.S.RS. 182 Fumishers 47/62 Ostreicher v. Secretary of State for the Hutchinson v. Westward Television 203 Environment 86 Oxlord v. Department 01 Health and Social Initial Services Ltd v. Putterill 92 Security 206/221,215/222,223 International Brotherhood of Teamsters v. United States 39 Pabon v. Levine 41 Irvine v. Prestcold Ltd 238 Parham v. Southwestern Bell. Tel. Co. 222 Parryv. Cleaver 129/134 Ialota v. Imperial Metal Industry (Kynoch) Patel v. The Post Office 222,238 Ltd 208/222 Patterson v. American Tobacco Co. 238 James v. Valtierra 38 Peakev. Automotive Products Ltd 130/134 Pergamon Press Ltd (In re) 251 Kenny v. Insurance Officer 83 Prais v. European Commission 86 Kermaschek 75/84,85 Prescott v. Birmingham Corpn 40 ~akv.Swinnerton&SonLtd 132 Price v. The Ovil Service Knightv. Attorney-General 114/131 Commission 48/62, 212/222, 217/223 Knuller Ltd v. D.P.P. 42 Korematsu v. United States 238 R. v. Chief Immigration Officer, Heatl.row, ex parte Salamat Bibi 82 Lauv. Nichols 32/41 R. v. CICB, ex parte Lain 40 Lawrence v. Newham B.C. 132 Rv.DeMierre 163 Lee v. British Domestic Appliances Ltd 134 R. v. Home Secretary, ex parte Bhajan Littler v. Thompson 92 Singh 82 Liversidge v. Anderson 238 R v. Metropolitan Police Commissioner, ex Lloyd v. Regional Transport Authority 41 parte Blackburn 42 Loca153, Heat and Frost Insulators v. R v. Secchi 83 Vogler 181 Race Relations Board v. Applin 86 Lowenbrau v. Grunhalle Lager 83 Race Relations Board v. Mecca Ltd 221 Lynch v. Knight 237 Ram v. Midlands Motor Cylinder Co. Ltd 180 Macarthys Ltd v. Smith 223 Ramsey v. John James Hawley (Speciality McCarey v. Associated Newspapers Ltd Works) Ltd 137 (No.2) 238 Read v. TivertonD.C. 131 McDonaid v. Santa Fe Trail Trans. Co. 133 Residence Conditions (Re) 10/38 Table 0/ Cases xxi

Retarded Children 's Aid Society Ltd v. Thieffrey v. Conseil des Avocats 38 Day 123/132 TidweU v. American Oil Co. 92 Roberts v. Hopwood 40 Tomalin v. Pearson 149 Robinson v. Lorillard Corp. 62 Turburville v. West Harn Corpn 85 Roebuck v. N. U .M. (Yorkshire Area) 92 Turton v. MacGregor Wallcoverings Rookesv. Bamard 187,226/237,231/238 Ltd 239 Rowe v. General Motors Corp. 132 T. w.A. v. Hardison 80/86

Saggers v. British Railways Board (No. 1) and Ugiiola v. Württembergische Milchver (No.2) 86 A.G. 38 Schmidt v. Austick's Bookshops Ltd 134 United Air Lines, Inc. v. Evans 39 Schorsch Meier v. Hennin 83 United States v. Bethlehern Steel Corpn 62 Science Research Councilv. Nasse 220/223 U niversity of Ca1ifornia Regents v. Secretary of State for Education v. Tarneside Bakke 39 M.B. 42 Selvarajan v. R.R.B. 190/201,251 Van Binsbergen v. Bedrijfsvereniging Sema v. Portales Municipal Schools 41 Metaalnijverheid 38 Sheikh v. Focus Cinernas Ltd 134 Van Duyn v. Horne Office 83 Shields v. E. Coornbes (Holdings) Ltd xvi, Virdee v. E.E.C. Quarries Ltd 221,238 202 Vokes Ltd v. Bear 63, 134 Shortv.PooleCorpn 55/62 Vyas v. Leyland Cars 132,223 Simpson v. Kodak Ltd 162 Singh v. British Steel Corpn 180 Waddington v. Leicester Council for Singh v. Rowntree MacKintosh Ltd 59/63, VoluntaryServices 223 85 Waddington v. Miah 82 Sotgiu v. Deutsche Bundespost 38 WalraveandKoch 70/83 Southem ll1inois Builders Association v. Watlingv. WilliarnBird 202 Ogilvie 39 Weinberger v. Inglis 232/238 Steel v. Union ofPostOffice Workers 13/39, Wi/son v. Maynard Shipbuilding Consultants 57/63, 177/181 A.B. 141/150 Steelv. Post Office (No. 2) 39, 236/239 Wi/sonv. T.B.SteelworksCo.Ltd 81/86 Sugarman v. Dougall 83 Zarczynska v. Levy 86,88/92 Tamlin v. Hannaford 162 Zeigierv. Kensington etc. AHA 63 Table of Statutes

1893 Public Authorities Protection Act Article 52 70,75 5.1 85 Article 57 84 Article 59 70,75 1925 Judicature Act Article 177 70 5.98 202 Reg.1612/68 83 Reg.1408/71 75,84 1935 National Labour Relations Act Reg.574/72 75,84 (US.A.) s.10(c) 239 1959 County Courts Act 5.84 247 1939 LimitationAct 5.91 202 5.21 85 1960 Canadian Bill 0/ Rights 1944 EducationAct 5.5(3) 82 5.30 79,80 1962 Uganda Independence Act 1947 OY>wn Proceedings Act 5.2(1) 84 Ch.8 152 1964 OviIRightsAct(U.S.A.) 13,67,80 1948 British Nationality Act 5.702 150 5.1 82 5.703 (e) 151 s.5(A) 84 s.703(h) 39 5.703 (j) 39 1948 U,dted Nations Universal Declaration s.704(a) 92 o/HumanRights 40,65,76 5.706 250 5.706 (g) 237 1953 European Convention 0/ Human Rights 65,82 1964 ContinentalShel/Act 143 Article 9 79,80 Article 14 82 1964 Police Act 5.48 163 1956 MedicalAct 5.36 (3) 202 1966 United Nations Covenant on 1957 E.E.C. Treaty(RomeTreaty) 10 Economic, Social and Cultural Article2 83 Rights 40 Article 7 10,70 Article9 83 1967 Age Discrimination in Employment Article 36 63 Act(U.S.A.) 82 Article48 63,70,75,161 Article51 75,84 1968 Immigration Act 72 Table 01 Statutes XXlll

1968 Race Relations Act(now repealed) 1974 HealthandSa/etyatWorkAct 246 s.3 131 s.21 251 s.3 (1) 131,132 s.22 251 s.4 (1) 179 s. 8 (1) 149 1974 Trade Union anti Labour Relations Act s. 8 (2) 149 s. 2 (1) 180 s.8(4) 149 s. 8 (7)-(9) 151 1975 EmploymentProtectionAct 203 s. 8 (10) 149 s.6 248 s.8(11) 151 s. 6 (11) 252 s. 10 (1) 161 s.14 201 1975 Sex Discrimination Act 13,62,126, s.15 201 136,139,165,181,195,199,206,251 s. 15 (2) 250 s.6(3) 149 s.16 149 s.7(2) 150,151 s.17 250 s.10 150 s.19 201 s.85 131 s. 19 (7) 202 s.21 201 1975 Social Security Act s.24 203 s.60(l) 40 s. 27 (9) 161 s. 97 (2) 202 Sched.2 141 Sehed. 10, para. 1 (4), proviso (e) 202 1970 Equal Pay Act s. 1 (3) 200 1976 Fair Employment (Northem IrelantI) s.l (4) 217 Act 66,85

1976 Race Relations Act 1970 MerchantShippingAct 144 s. 1 (l)(a) 4,64.146,207 s.l(l)(b) 5,27,43,52,61,73,175 1971 Immigration Act 72 s. 1 (l)(b)(i) 154 s. 1 (1) 84 s. 1 (1 )(b)(iii) 50 s. 1 (2) 72 s. 1 (2) 134,150 s. 1 (5) 72 s.2 87,88,91,92 s.2(1) 84 s.2(1) 92 s. 2 (6) 84 s.2(l)(e) 87,88,90 s.3(4) 84 s. 2 (2) 92 s. 3 (8) 84 s.3 63 Sched. 1, App. A 84 s. 3 (1) 41,62,83 s. 3 (2) 48,62 1971 IntIustrialRelationsAct (now s. 3 (3)(a) 92,134 repealed) 95,125,169,170,172 s.4 113,114,115,149,167,181 s.4(1) 131 1972 De/ective Premises Act s.4(1)(a) 46,117,119 s.4 237 s.4 (l)(e) 117 s.4(2) 120,130,131 s. 4 (2)(a) 150 1972 European Communities Act s.4(2)(b) 124 s. 1 (2) 85 s. 4 (2)(e) 115,124,127 s. 1 (4) 85 s.4 (3) 149 s.2(1) 85 s.4(4) 124 s.5(1) 151 1972 Loi No. 72-5460/ lJuly 1972, Code s. 5 (2) 146,148,151 Penal Alt! 187-1 anti 416 s.5(3) 151 (France) 84 s.6 133 s.7 113 1973 NationalHealthSeroice s. 7 (1) 149 Re~rganisationAct 59 s. 8 (1) 84,141,142 xxiv Table 0/ Statutes

1976 Race Relations Act-eontd s.47 248 s. 8 (2) 150 s. 47 (2)-(7) 252 s. 8 (3) 150 s. 47 (10) 251 s.8(4) 149 s.48 (1) 244,250 s. 8 (5) 143 s.48 (2) 250 s.9 144,145 s.49(2) 250 s.10 139,180 s.49(3) 250 s.ll 164,167,171 s. 49 (4) 244-5 s. 11 (2)(a) 179 s.49 (5) 250 s. 11 (2)(b) 175, 179 s. 50 (1)-(6) 251 s. 11 (3)(a) 179,180 s. 51 (1) 250 s. 11 (3)(b) 179,181 s.52(1) 251 s. 11 (3)(e) 179,181 s. 53 (1) 201 s.12 62 s. 53 (2) 131 s.13 (2) 41,149 s.54 251 s. 14 (1)-(5) 149 s. 54 (2) 202 s. 15 (1) 149 s. 55 (1)-(4) 203 s. 16 (1)-(5) 163 s.56(1) 133,227,238 s.19 36 s.56(2) 133,238 s.20 180,198,250 s. 56 (3) 133 s.21 251 s.56(4) 133,180,238 s.22 251 s.57 251 s.25 180,198 s. 57 (1) 133 s.26 85 s. 57 (2) 203,238 s. 26 (1) 148 s. 57 (3) 221,238 s.28 52,175,243,250 s. 57 (4) 133,167,237 s.29 118,119,132 s. 58 (2) 251 s. 29 (1) 83,132,149 s. 58 (3) 223,251 s.29(2) 132,151 s.58(4) 223,251 s. 29 (3) 83,150 s. 58 (5) 245,251 s.29(4) 132 s. 58 (7) 251 s. 29 (5) 132 s. 59 (1) 246 s.30 132 s. 59 (2) 251 s.31 132 s.59(3) 251 s. 32 (1) 132,171 s.60 251 s.32(2) 170,171 s.62 248 s. 32 (3) 132,171 s.62(1) 237,248,251 s.33 133, 177 s. 62 (2) 251 s. 33 (1) 132 s. 63 248, 251 s.63 (1)-(4) 132 s. 33 (2) 132 s. 64 (1) 248 s.34 29 s. 65 (1)-(2) 221 s. 34 (1) 85 s. 66 (1)-(4) 201 s.35 29 s. 67 (4) 202 s.36 133 s. 68 (1)-(6) 203 s.37 31,41 s.71 36,222 s.37(1) 41 s.37(2) 41 s. 73 (1)-(2) 149,151 s.37(3) 41 s.75(1)-(9) 131,161,202,250 s.38 25,26,28,30,31 s.76 114,250 s. 38 (1) -(5) 41 s.78(1) 83,131,181 s.39 83 s. 78 (4) 251 s.41 59,65 Sehed. 2, para. 9 161 s.41(1) 74 Sehed.4,para.2 250 s. 41 (2) 83 1976 SupplementaryBenefitAct s.42 161 Sched.4 202 s.43 (1) 250 s.44 240 1978 Employment (Continental Shelf) s.45 240 Act 150 Table 0/ Statutes xxv

1978 Employment Protection s. 71 (3) 92, 133 (Consolidation) Act 96,125-8,141, s.72 133 143 s.73 133 s.23 92 s. 73 (7) 92,133 s.24 92 s.74 133 s.25 92,221 s.76 133 s.53 92,221 s.128 202 s.55 133 s.132 134 s. 57 (1) 133,221 s. 135 (3) 202 s. 57 (2) 63,133 s.137 150 s. 57 (3) 63,132 s.141 150 s. 58 (3) 86 s.151 133 s.59 134 Sched.11,para.20 202 s.63 133 Sched.13 133 s. 64 (1) 133 s. 67 (2) 203 1978 Interpretation Act s.68 133 Sched. 1 180 s.69 133 s.70 133 s.71 133,238 1979 Social Security Act s.71 (2) 133 Sched.2 202

Please note that the table 0/ Statutory Instruments appears overleaf. Statutory Instruments

1965 Industrial Tribunal (England and Reg.6 251 Wales) Regulations, S.1. Sched.l 251 1965/1101 202 Sched.2 251

1974 Industrial Tribunal (Labour Relations) Regulations, S.1. 1974/1386 1977 Race Relations (Questions and Reg.3,Rule4(1)(6) 223 Replies) Order, S.1. 1977/842 221 Rule9 (l)(e) 238 Rule 10 202 1977 Employment Proteetion Code of Practice (Disciplinary Practice and 1976 Employment Appeal Tribunal Rules, Procedures) Order, S.I. 1976/322 S.1.1977/867 251 Rule21 202 1977 Industrial Tribunals (Non 1976 Employment Proteetion (Offshore Discrimination Notice Appeals) Employment) Order, Regulations, S.1. 1977/1094 251 S.1. 1976/766 151 1977 Race Relations (Prescribed Public 1977 Employment Proteetion (Recoupment Bodies) Regulations, of Unemployment Benefit and S.1. 1977/1774 161 Supplementary Benelit) Regulations, S.I.1977/674 134 1978 The Employment Proteetion (Variation ofLimits)Order,S.1.1978/1777 133 1977 Race Relations (Formal Investigal'ons) Regulations, 1978 The Unfair Dismissal (Increase 01 S.I. 1977/841 Compensation Limit) Order, Reg.5 251 S.I.1978/1778 133,238 Table of Abbreviations LawReports

A.C. Appeal Cases (House of Lords) AllE.R. All England Reports Ch. Chancery C.M.L.R. Common Market Law Reports E.C.R. European Court Reports I.C.R. Industrial Case Reports I.R.L.R. Industrial Relations Law Reports K.B. King's Bench Q.B. Queen's Bench W.L.R. Weekly Law Reports

American Cases F.2d Federal Reports, Second Series F. Supp. Federal Supplement L. Ed. 2d Lawyer's Edition, Second Series (Supreme Court) P.2d Pacific Reports, Second Series V.S. Vnited States (Supreme Court)

Works /requently cited

1. de Smith - S. A. de Smith, Constitutional and Administrative Law (Penguin Books, 2nd edn, 1973). I have preferred this edition to the subsequent one, written by others following the author's death. 2. Hepple - B. A. Hepple, Race, Jobs and the Law (Penguin Books, 2nd edn, 1970). 3. Lester and Bindman - A. Lester and G. Bindman, Race and Law (Penguin Books, 1972). 4. Macdonald -I. Macdonald, The Race Relations Act 1976 (Butterworth, 1977). 5. PEP Report or Racial Disadvantage - D. Smith, Racial Disadvantage in Britain (Penguin Books, 1977). 6. Runnymede Seminar - A Review 0/ the Race Relations Act 1976 (Runnymede Trust, 1979). 7. W. & P./B. -E. Wade and G. Phillips, Constitutional andAdministrative Law, 9th edn by A. Bradley (Longman, 1977).