Burton & Rhule v De Vere Hotels
© [1996] IRLR 596


BURTON and RHULE (appellants) v.
DE VERE HOTELS (respondents)

irlr

600

Sex discrimination


618

Sexual harassment


700

Race relations


711

Direct discrimination


718

Racial harassment


737

Discrimination by eomployers - detriments


745

Liability of employers and principals

Race Relations Act 1976 sections: 1(1)(a), 4(2)(c)

The facts:

Freda Burton and Sonia Rhule, who are both black, were employed as casual waitresses at De Vere's Pennine Hotel in Derby on 1 November 1994, working at a dinner organised by the City of Derby Round Table. The Round Table had booked Bernard Manning as the speaker. On duty that evening was the hotel manager, Andrew Pemberton, and two assistant managers.

The two women went into the banqueting hall to clear the tables during Mr Manning's performance. They heard him make jokes about the sexual organs of black men and their sexual abilities. He used words such as "wog", "nigger" and "sambo". When Mr Manning spotted the waitresses, he remarked, "Very nice, that's how I like my cocoa." He then said words to the effect that "darkies were good at giving blow jobs." Although the women were considerably upset and offended, they carried on working. When the show was over, one of the guests asked Miss Rhule "what a black woman's vagina tasted like". She complained to an assistant manager. Meanwhile, another guest tried to put his arms round Miss Burton and made racially and sexually offensive remarks to her. The assistant manager saw this and brought the incident to an end. He apologised to the two women for what had happened.

On the next day, they complained to Mr Pemberton in writing, claiming that had the management vetted Mr Manning and his material, they would not have been placed in such a "prejudiced atmosphere". Mr Pemberton met with the women and later wrote them a letter of apology for what had occurred. They brought complaints under the Race Relations Act.

The industrial tribunal dismissed the complaints. The tribunal said that it was "in no doubt whatever" that the applicants had suffered a "detriment" within the meaning of the Act. "It was not, however, the respondent which subjected them to it." The tribunal found that, although the managers were aware of Mr Manning's act, none of them had anticipated that he would engage in the sort of behaviour which he did that night. It considered that Mr Pemberton could have been expected to have said to his assistant managers that they should make sure that the staff were not offended by the act, but the tribunal "did not feel able to find that that omission was less favourable treatment on racial grounds" because Mr Pemberton's failure to address his mind to what might happen had nothing to do with the employees' ethnic origins.

The Employment Appeal Tribunal (Mrs Justice Smith, Mrs R Chapman, Lord Gladwin of Clee CBE JP) in a reserved decision given on 18 September 1996 allowed the appeal and remitted the ease to the industrial tribunal for the assessment of compensation. Leave to appeal to the Court of Appeal was refused.

The EAT held

irlr {718} {737}

The industrial tribunal erred in holding that the respondent employers had not discriminated against the appellant black waitresses by subjecting them to racial harassment in the course of work from Bernard Manning, the guest speaker at a Round Table dinner, and from some of the diners. The tribunal had erred in finding that although the employees had suffered a "detriment" within the meaning of the Race Relations Act, it was not the employers who had subjected them to the detriment, since they had neither knowingly stood by while the employees were abused, nor had they foreseen that Mr Manning would behave as he did.

An employer subjects an employee to the detriment of racial harassment if he causes or permits harassment serious enough to amount to a detriment to occur in circumstances in which he can control whether it happens or not. The word ''subjecting" to in s.4(2)(c) connotes "control". A person "subjects" another to something if he causes or allows that thing to happen in circumstances where he can control whether it happens or not. Foresight o the events, or the lack of it, is not determinative of whether the events were under the employer's control.

In order to show that the employer "subjected" the employee to the detriment of racial abuse or harassment, where the actual abuser or harasser is a third party and not a servant or agent of the employer for whose actions the employer would be vicariously liable, the tribunal should ask itself, in its capacity as an industrial jury, whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it. If such is the finding, then the employer has subjected the employee to the harassment.

In the present case, it would have been good employment practice for the manager to warn his assistants to keep a look out for Mr Manning and withdraw the waitresses if things became unpleasant. Events within the banqueting hall were under the control of the assistants and, if they had been properly instructed, the appellants would not have suffered any harassment. They might possibly have heard a few offensive words before they were withdrawn, but that would have been all. Accordingly, the employers "subjected" the appellants to the racial harassment which they received.

{711} {718}

The industrial tribunal had erred, in any event, in finding that although the respondents' manager ought to have given instructions to his assistants to protect the appellants from the predictably offensive content of Mr Manning's speech, his failure to do so was not on racial grounds in that it was not connected with their racial origin. There is no burden on an employee who has been subjected to the detriment of racial harassment by an employer to show further that they were subjected to racial harassment on racial grounds, since it is not necessary for an applicant to show that the discriminator had any intention or motive to discriminate.

Obiter dicta:

It is undesirable that concepts of the law of negligence should be imported into the statutory torts of racial and sexual discrimination.

Cases referred to:
Strathclyde Regional Council v Porcelli [1986] IRLR 134 CS
R v Birmingham City Council exparte Equal Opportunities Commission [1989] IRLR 173 HL
Page v Smith [1995] 2 All ER 736 HL
Appearances:
For the Appellants
LAURA COX QC and KARON MONAGHAN, instructed by Makbool Javaid, Commission for Racial Equality
For the Respondents:
ALAN WILKIE QC, instructed by David Edwards, Greenalls Group plc

  1. MRS JUSTICE SMITH: This is an appeal from a decision dated 14 November 1995 of an industrial tribunal sitting at Nottingham. The tribunal held that the respondents had not discriminated against the appellants, their employees, contrary to the Race Relations Act 1976. The appeal is concerned with the extent of the duty of an employer to protect his employees from acts of racial abuse or harassment in the course of work, where the abuse or harassment comes from a third party, not a fellow employee.
  2. The tribunal found the following facts. The respondent is a large organisation operating about 20 hotels. It has a personnel department and a personnel and training manual covering, inter alia, equal opportunity policy in respect of both race and sex discrimination.
  3. On 1 November 1994, both appellants were employed as casual waitresses by the respondents at the Pennine Hotel, Derby. That evening, about 400 men, members and guests of the City of Derby Round Table, attended a dinner at the hotel at which event the speaker was Bernard Manning. The hotel manager, Mr Andrew Pemberton, was in overall charge of the occasion. He delegated the service of food and drinks respectively to two assistant managers, Mr Steven Smith and Mr Nicholas Binks. Mr Pemberton had made the arrangements for the dinner with the representative of the Derby Round Table and was aware that Mr Manning was to be the guest speaker. He was also aware, from previous experience at another hotel, that Mr Manning was what he described as a 'blue' comedian, that is one who was likely to make sexually explicit jokes.
  4. The dinner proceeded uneventfully. Shortly before Mr Manning was due to speak, all the casual workers were told they were free to go home but a request was made for volunteers to stay on to work late. The two appellants volunteered. They were told to go into the banqueting hall to clear the tables. They went in during Mr Manning's performance. The tribunal found that the appellants heard Mr Manning make jokes about the sexual organs and sexual abilities of black men. He used offensive words such as 'wog', nigger' and 'sambo'. The tribunal found:
    'Matters became significantly worse for these applicants (who were young Afro-Caribbean women) when Mr Manning spotted them going about their business. He made a racially offensive remark to them, saying "Very nice, that's how I like my cocoa." He then compounded that by making a remark that was both racially and sexually offensive to the effect that "darkies were good at giving blow jobs." Despite these remarks, which considerably upset and offended the applicants, they carried on working as best they could. Unhappily he (Mr Manning) created an atmosphere which probably encouraged some guests further to abuse them.'
  5. The tribunal then described the events which occurred after Mr Mannings act was over. one of the guests asked Miss Rhule 'what a black woman's vagina tasted like'. She was outraged and went to complain to Mr Smith who was in the room. Meanwhile, Miss Burton was having trouble with another guest who tried to put his arms round her and made racially and sexually offensive remarks. Mr Smith saw this, went over and the incident was brought to an end. The guest was not ejected. Mr Smith then apologised to the two appellants for what had happened and offered them work behind the bar. They finished their original work and went home.
  6. The next day, the appellants made a complaint to the respondents which included the following passages:
    'We feel that the Pennine Hotel made a gross error in allowing the whole incident to take place. Lack of supervision of the managing staff contributed to this greatly: had they vetted Mr Manning and his material they would not have placed three Afro-Caribbean waitresses in such a prejudiced atmosphere.
    Racism is an issue which we feel very strongly about; to be degraded (a) because we are women, (b) because we are black, is unforgivable.'
  7. On 3 November Mr Pemberton met the appellants and their parents. Later that day he wrote a letter of apology for what had occurred. He also offered to help in seeking redress from the guests who had particularly offended the appellants. In the event, that came to nothing However, the tribunal found that Mr Pemberton handled the complaint appropriately.
  8. The appellants brought complaints against their employers under the Race Relations Act 1976. They complained of 'racial discrimination - unfair treatment'. Their identical summaries of the facts described incidents of racial abuse and racial harassment. No complaint was made of sexual abuse or sexual harassment, although, as was common ground at the hearing before us, their grounds for so doing were at least as strong as their grounds for complaining as they did.
  9. Section 1(1)(a) of the Race Relations Act 1976 provides: 'A person discriminates against another in any circumstances relevant for the purposes of any provision in this Act if
    (a) on racial grounds he treats that other less favourably than he treats or would treat other persons.'
    Section 3(4) provides:
    'A comparison of the case of a person of a particular racial group with that of a person not of that group under s.1(1) must be such that the relevant circumstances in the one case are the same or not materially different in the other.'
    So far as relevant, s.4(2) provides:
    'It is; unlawful for a person in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
    (c) by dismissing him or by subjecting him to any other detriment.'
    Section 32 provides for the vicarious liability of employers for the acts of employees and agents. Section 33 creates liability for those who aid and abet another person to do something which is unlawful under the Act. Neither of these provisions is relevant as the case here concerns the conduct of the employers themselves. The appellants allege that the respondents discriminated against them directly by subjecting them to racial abuse and harassment.
  10. We now turn to consider the basis of the tribunal's finding that the respondents had not committed any act of racial discrimination. The tribunal's conclusions are set out at paragraphs 18-25 of their reasons. In paragraph 18 they considered the meaning of the word 'treatment' in s.1 of the Act. They concluded, both parties agree rightly, that 'treatment' may import both passive and active conduct. Thus, a discriminator may treat one person less favourably than he would another, by acts of omission as well as acts of commission.
  11. The tribunal also recognised, both parties agree rightly, that for a black employee to experience serious racial abuse or harassment is capable of being a detriment, within s.4(2)(c). The tribunal found as a fact, at paragraph 25, that the appellants had suffered a detriment that night, presumably by suffering serious injury to feelings caused by racial abuse and harassment.
  12. Paragraphs 19 and 20 show the tribunal's approach to their task:
    '19. The features of the evidence upon which we have based our decision are that, although aware that Mr Manning was a "blue" entertainer, none of the management witnesses anticipated as a matter of fact that he would engage in the sort of behaviour which he did that night. During his act, we accept that Mr Smith and Mr Binks were busy going about their duties. Thus, although they were aware of offensive remarks being used by Mr Manning, we accept that they were not in a position to stop, reflect and exercise judgment about what was going on so as to be expected to take action to protect the applicants.'
  13. Pausing there, Ms Cox QC for the appellants submits that that was a surprising finding of fact but she accepts that it cannot be challenged as perverse. We agree. The tribunal continued:
    'As for Mr Pemberton, he was at the time in another part of the building.
    20. Having said that about him, however, we observe a piece of evidence given by him. He said "I would not knowingly send female staff into a function room when dirty jokes were being told." Further, he had had direct experience of Mr Manning as an entertainer when he was present at a function at a hotel in Warrington. We think therefore that as a matter of common sense and sensibility, he could have been expected to have said on this occasion to his assistant managers to watch out for Mr Manning's act and to see that the staff were not offended by it. They could, for example, have been with- drawn for a short while until it was over. Having said that however, we do not feel able to find that that omission was less favourable treatment on racial grounds [our emphasis]. we might, following King v The Great Britain-China Centre [1991] IRLR 513, draw an adverse inference from those facts but, in the particular circumstances of this case we do not feel it proper to do so. We say that simply because we are satisfied that, although Mr Pemberton was aware of the sexually offensive nature of Mr Manning's act, he simply did not address his mind to what might happen vis-à-vis these applicants that night. His failure to do so had nothing to do with their ethnic origin [our emphasis]. His reaction to their complaint after the event indicates that, had he addressed his mind to the risk before the event, he would have taken steps to protect the applicants.' The tribunal then dealt briefly with the adequacy of super- vision of the dinner and concluded that nothing they had heard reflected less favourable treatment on racial grounds (our emphasis).
  14. The conclusion within paragraph 25 is:
    'We are in no doubt that [the appellants] suffered a detriment that night within the meaning of the Act. It was not however, the respondent which subjected them to it.'
  15. Thus it seems to us that the basis of the decision was that although the appellants had suffered the detriment of racial harassment that night, they had been subjected to it by Mr Manning and the guests and not by the employers. The employers had not subjected them to the detriment, first because they had neither knowingly stood by while the appellants were abused and harassed, nor had they foreseen that Mr Manning would behave as he did. Had they stood by while the appellants were abused or had they failed to take action after foreseeing that Mr Manning would act as he did, it is implicit that the tribunal would have found the employers liable. But there can be no challenge to the findings of fact upon which these conclusions are based.
  16. Second, the tribunal so found because although Mr Pemberton ought to have given instructions to his assistant managers to protect the appellants from the predictably offensive content of Mr Manning's speech, his failure to do so was not 'less favourable treatment on racial grounds'. Putting this another way, Mr Pemberton's failure to give any thought to what might happen to the appellants that night had not been connected with the appellants' ethnic origin. By implication, the tribunal thought the respondents would have treated white waitresses in the same way.
  17. Ms Cox QC, for the appellants, submitted that a person may discriminate against another within s.1(1)(a) of the Act when, as the result of his active or passive treatment of the other, the other suffers racial abuse or harassment. Thus an employer will be guilty of unlawful discrimination under s.4(2)(c) if he 'subjects' the employee to racial harassment or racial abuse serious enough to amount to a detriment. Mr Wilkie QC, for the respondents, did not dissent from that proposition. Here the appellants could prove their case by showing that the respondents had subjected them to a detriment by actively or passively subjecting them to racial abuse or harassment.
  18. Thus, submitted Ms Cox, the only question for the tribunal should have been whether the respondents had 'subjected' the appellants to the detriment of racial abuse and harassment. Instead the tribunal asked themselves whether the employers had subjected the employees to racial harassment on racial grounds. She submitted that the tribunal failed to recognise that an incident of racial harassment of a black person, being race specific, is in itself less favourable treatment on racial grounds by the persons responsible for it. In a case of racial harassment there is no need for the applicant to show that a white person has been or would be treated differently. The very act of abusing or harassing someone in respect of their race is in itself less favourable treatment on racial grounds: see Strathclyde Regional Council v Porcelli [1986] IRLR 134. She submitted that here the tribunal had looked for evidence of different treatment on grounds of race in a case where none needed to be shown.
  19. Mr Wilkie accepted Ms Cox's submission as to the effect of Porcelli's case, namely that where the treatment under consideration is 'race specific', there is no need for the employee to show that a white person would have been treated differently. However, he did not accept that the tribunal had misdirected themselves on this point by imposing a requirement of different treatment on racial grounds.
  20. {711} {718}
    In our view the tribunal did impose upon the employees a burden additional to that imposed by the Act, namely the burden of showing that the employers subjected the employee to the detriment of racial harassment on racial grounds. The phrases which we emphasised in our recital of their reasons show that this was so. In effect, they required the employees to show that the employers were themselves affected by racial bias or animus. That is not necessary: see R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173, which is clear authority for the proposition that it is not necessary for an applicant to show that the discriminator had any intention or motive to discriminate.
  21. We are satisfied that they erred in this regard and that their decision cannot stand on the basis upon which they made it.
  22. We thus proceed on the basis that there has been an error of law. Both parties have invited us to lay down the principles which should apply and to apply them to the facts as found by the tribunal.
  23. The question which arises in this case is what is meant by 'subjecting' in s.4(2)(c). The parties agree that the problem is to decide what an applicant must prove in order to show that the employer 'subjected' the employee to the detriment of racial abuse or harassment, where the actual abuser or harasser is a third party and not a servant or agent of the employer for whose actions the employer would be vicariously liable. Put another way, the problem is to decide the extent of the duty of an employer to protect the employee from racial harassment from third parties.
  24. The tribunal were at pains to make clear that in their view the section does not impose strict liability upon the employers. It is not enough that the appellants suffered racial harassment while in the course of their employment. Both parties accept that that is right. We agree.
  25. Ms Cox submitted that the duty on an employer under the Race Relations Act 1976 in respect of racial harassment of his employee by a third party (ie the duty not to 'subject' the employee to racial harassment) is to take such steps as are reasonable in the circumstances to protect the employee from injury to feelings caused by abuse or harassment which he either knows is taking place or of which he foresaw or ought to have foreseen an appreciable risk.
  26. Ms Cox sought to advance her submissions by the formulation of five propositions based upon the tribunal's findings of fact. she submitted that these propositions lead to the inevitable conclusion that these employers did 'subject' the employees to racial harassment. The five propositions are:
    (1) That the respondents employed the appellants.
    (2) That on 1 November 1994, the respondents required the appellants to work in what turned out in fact to be a racially and sexually offensive environment. As a result, they suffered the detriment of racial harassment.
    (3) The risk of the appellants being subjected to sexual harassment was reasonably foreseeable. Mr Pemberton actually knew that Mr Manning's act would be 'blue'. A reasonable employer would have foreseen that the female waitresses would or might be seriously distressed by the sexually explicit jokes he was likely to tell.
    (4) The respondents failed to take any steps to guard against the risks of sexual harassment which they should have foreseen. The tribunal were critical of Mr Pemberton's failure to advise his assistant managers to keep an eye open for trouble during Mr Manning's act and to take steps to prevent the female staff from being offended. They found that Mr Pemberton simply failed to apply his mind to what might happen to the appellants that night.
    (5) It follows that because the employers culpably failed to protect the appellants from sexual harassment and the very steps which would have protected them from sexual harassment would also have protected them from racial harassment, the respondent must also have culpably failed to protect the appellants from racial harassment. Therefore they 'subjected' the appellants to the detriment they suffered, namely racial harassment.
  27. Thus she submitted that 'subjecting' entailed either an element of knowledge or foresight and an element of culpability. She recognised that a requirement of foresight presented her with some difficulty on the facts of this case as found. There was a finding of fact that sexual harassment was foreseeable but not racial harassment. She sought to bridge that gap by submitting that, because the appellants were black as well as female, it must also have been foreseeable that they would be racially as well as sexually harassed. She submitted that in the circumstances of the present case, any dividing line between racial and sexual harassment would be quite artificial and she drew our attention to the guidance given by the European Commission Recommendation No 92/131/EEC entitled 'On the protection of the dignity of women and men at work', where it is said that women of non-white origin are more likely to be the subject of sexual harassment than white women.
  28. Alternatively, she submitted that as a matter of law, foresight by an employer of sexual harassment would be sufficient to give rise to a duty to protect the employee from racial harassment and vice versa. She argued that employers have a duty under the discrimination legislation to protect their employees from foreseeable risk of injury to feelings caused by harassment whether sexual or racial. Thus if an employer foresaw or ought to have foreseen the risk of sexual harassment to the employee, he would be liable for all injury to the employee's feelings caused by both racial and sexual harassment even though he could not have been expected on the facts to have foreseen the risk of racial harassment. Further, she submitted that if an employer foresaw the risk of sexual harassment, he would be liable for damage due to racial harassment, even if no sexual harassment took place. In other words, the foresight of risk necessary to found liability under the Sex Discrimination Act 1975 and the Race Relations Act 1976 are the same, namely foresight of injury to feelings through harassment.
  29. In support of that proposition she sought to draw an analogy with the rule in the tort of negligence that, if there was a foreseeable risk of harm of a type which the appellants suffered, the respondents would be liable for actual harm suffered by them: see Page v Smith [1995] 2 All ER 736.
  30. On culpability, she submitted that it was sufficient if the employer was shown to have done something which a reasonable employer would not do or had failed to do something which the reasonable employer would have done in the circumstances. In other words, the employer had a duty to do what was reasonable in the circumstances.
  31. Mr Wilkie accepted that the tort of race discrimination may be committed by an employer who subjects an employee to the detriment of racial harassment from a third party. So the question for this tribunal had been whether or not these employers had 'subjected' the employees to the facial harassment and abuse of Bernard Manning and the offending guests. He accepted that the employers might 'subject'-the employees by means of active or passive conduct and that a failure to protect the employee from harassment might be such passive 'subjecting'. He agreed with Ms Cox's submission that the word 'subjecting' connotes an element of knowledge or foresight and an element of culpability or blameworthy conduct. He differed from Ms Cox only as to the degree of knowledge or foresight required and the degree of culpability which must be shown.
  32. He submitted that to found liability, the employee must show either that the employer had actual knowledge that racial harassment was occurring or that he was guilty of a deliberate or reckless failure to inform himself of what was happening (viz racial harassment) or that he had a high degree of foresight so that he knew full well what was likely to happen or that he wilfully shut his eyes to what he ought to have known was going to happen and, in whichever case, failed to take reasonable steps to protect the employee from that which he knew was happening or foresaw would happen.
  33. As to culpability, he submitted that the degree of culpability must go beyond a mere negligent act or omission to act; there must be either a deliberate or reckless action or a deliberate or reckless omission to do what was reasonable in the light of what he knew or foresaw. He submitted that the verb 'to subject' connoted a sense of action or decision rather than mere negligence. Also he submitted that the duty of the employer must not be equated with the common-law duty of care of an employer towards his employee.
  34. As to Ms Cox's submission that foresight of sexual harassment carried with it foresight of racial harassment because the employer had foreseen that the employee might suffer injury to feelings, he submitted that this erroneously confused a precept of the law of the tort of negligence, where there was a single duty of care (not to act in such a way as to cause damage of a type in respect of which there is a foreseeable risk), with the two distinct and separate torts of sex discrimination and race discrimination. Foresight that sexual harassment would take place or was likely to take place had no bearing, as a matter of principle, on foresight of racial harassment.
  35. We cannot accept either the submissions of Ms Cox or Mr Wilkie in their entirety. We do accept that, in practice, where an employer is shown to have actual knowledge that racial harassment of an employee is taking place, or deliberately or recklessly closes his eyes to the fact that it is taking place, if he does not act reasonably to prevent it he will readily be found to have subjected his employee to the detriment of racial harassment.
  36. {718} {737}
    However, we do not think that foresight and culpability are the means by which the employer's duty is to be defined. The duty is not to subject the employee to racial harassment. We think that the statutory test is best understood by consideration of the true meaning of the word 'subjecting'. We do not think 'subjecting' is a word which connotes action or decision, as Mr Wilkie submitted. Rather we think it connotes 'control'. A person 'subjects' another to something if he causes or allows that thing to happen in circumstances where he can control whether it happens or not. An employer subjects an employee to the detriment of racial harassment if he causes or permits the racial harassment to occur in circumstances in which he can control whether it happens or not.
  37. {718} {745}
    We do not think it is necessary or appropriate that any particular degree of foresight on the part of the employer need be established. Indeed we think that it is undesirable that concepts of the law of negligence should be imported into the statutory torts of racial and sexual discrimination. However, we can see that on occasions what the employer knew or foresaw might be relevant to what control the employer could exercise. Lack of possible foresight and the unexpected nature of an event might be relevant to the question of whether the event was under the employer's control. But foresight of the events or the lack of it cannot be determinative of whether the events were under the employer's control. An employer might foresee that racial harassment is a real possibility and yet be able to do very little, if anything, to prevent it from happening or protect his employees from it. For example, the employer of a bus or train conductor may recognise that the employee will face a real risk of racial harassment at times. Yet the prevention of such an event will be largely beyond the control of the employer. All he will be able to do is to make his attitude to such behaviour known to the public and to offer his employees appropriate support if harassment occurs. On the other hand, if the harassment occurs even quite unexpectedly, but in circumstances over which the employer has control, a tribunal may well find that he has subjected his employee to it.
  38. {718} {737}
    We think that the question of whether an employer has subjected his employee to racial harassment, where a third party is primarily responsible for the harassment, should be decided by the tribunal in its capacity as an industrial jury. The tribunal should ask themselves whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it. If such is their finding, then the employer has subjected the employee to the harassment.
  39. {718} {737}
    We turn, as invited by the parties, to apply these principles to the tribunal's findings of fact in this case. Mr Pemberton told the tribunal that he would never allow young female staff to go into a function where he knew a performer might tell sexually explicit jokes. He was there clearly describing what he saw as good employment practice. The tribunal said that he ought to have warned his assistant managers to keep a look-out for Mr Manning and withdraw the young waitresses if things became unpleasant. He did not do so because he did not give the matter a thought. He should have done. Events within the banqueting hall were under the control of Mr Pemberton's assistants. If they had been properly instructed by him, these two young women would not have suffered any harassment. They might possibly have heard a few offensive words before they were withdrawn, but that would have been all.
  40. We are unanimously of the view that on this occasion the employer 'subjected' the appellants to the racial harassment which they received from Mr Manning and the guests.
  41. For those reasons we allow this appeal and remit the case to the tribunal for the assessment of compensation.
  42. In advance of the announcement of this decision, both parties requested that leave to appeal should be granted. Despite that unanimity, we do not consider that leave should be granted by this tribunal.