Anyanwu v South Bank Student Union (House of Lords)

In brief

The House of Lords allowed the appeal of two dismissed student-union officers and sent their claim, that their university had 'knowingly aided' their unlawful dismissal, back to an employment tribunal instead of letting it be struck out. This was a striking-out appeal, not a full-merits discrimination case. The officers claimed the university had knowingly aided the union to dismiss them unlawfully, contrary to section 33(1) of the Race Relations Act 1976. The employment tribunal struck the claim out (res judicata); the EAT (Morison P) reversed; and a Court of Appeal majority, Pill LJ dissenting ([2000] ICR 221), restored the strike-out on a ground it raised itself during the appeal: that 'aids' could not cover a 'prime mover' (its own 'prime mover/free agent' gloss). The House made two holdings. First, on the meaning of 'aids' (Lord Bingham [5]), the word has its ordinary meaning: 'helps or assists... not so insignificant as to be negligible... points towards a relationship of cooperation or collaboration'. The House did not broaden 'aids': it rejected the Court of Appeal's unduly narrow gloss while confirming that 'aids' remains distinct from instructing and inducing under sections 30-31 of the 1976 Act (Lord Hope [41]) and, in Lord Millett's words, from 'encouraging or inducing' and 'causing or procuring' ([49]). Second, on strike-out (Lord Steyn [24]), discrimination claims should not be struck out as an abuse of process 'except in the most obvious and plainest cases', being 'generally fact-sensitive'. Applying that construction, a majority found an arguable case, and the claim was remitted to an employment tribunal. The result was unanimous, but Lord Bingham [18] and Lord Millett [48]-[49] both recorded genuine doubts about whether 'aiding' was made out on these facts and deferred to the majority, so the decision is not a confident endorsement of the claim's strength. In the companion case, decided the same day by the same panel and heard immediately afterwards, Hallam v Cheltenham Borough Council [2001] UKHL 15 (where Lord Bingham cross-refers to Anyanwu at [7]), the appeal was dismissed: police officers who supplied information contributing to a council's discriminatory decision did not 'aid' it, because they aided the decision-making, not the unlawful act itself. That is the limit on how far Anyanwu's construction extends. Decided 22 March 2001.

Key provisions

• [1], [5] (Lord Bingham) — RRA s.33(1) construction: what 'aids' means : Ordinary meaning: 'helps or assists... not so insignificant as to be negligible... points towards a relationship of cooperation or collaboration'. Distinct from and narrower than procure/induce (ss.30-31) — framework — the actual operative test. Use to resist an over-broad or an over-narrow reading of 'aiding' from either side.
• [17]-[18] (Lord Bingham) — The three-question test : (i) what was the unlawful act? (ii) what did the alleged aider do? (iii) do those acts satisfy s.33(1)? — framework — the practical checklist for pleading or resisting an aiding claim. Structure skeletons against it.
• [19] (Lord Steyn) — The CA's 'prime mover / free agent' gloss rejected : 'not helpful to introduce "free agents" and "prime movers", which can only distract attention from the essentially simple test' — claimant — cite to shut down an opponent reintroducing a prime-mover causation argument. A 'what not to argue' authority.
• [24] (Lord Steyn) — The strike-out discipline : Verbatim: 'such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society.' — claimant — the genuine strike-out passage.
• [39] (Lord Hope) — Hope's own, different strike-out threshold : 'I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial' — respondent — a more standard formulation than Steyn's; useful for respondents arguing a genuinely weak claim. Note the two Law Lords state the test differently.
• [48]-[49] (Lord Millett) — The aiding / instructing distinction : Encouraging, inducing, inciting, causing and procuring are distinct from and broader than 'aiding' — framework — maps directly onto the EA 2010 s.111 (instructing/causing/inducing) vs s.112 (knowingly helping) split.
• Hallam v Cheltenham BC [2001] UKHL 15 at [17]-[18] (Millett) — The limiting principle (companion case, same panel, same day) : Aiding a decision is not the same as aiding the unlawful act done pursuant to it; Millett's bystander illustration is the clearest statement — respondent — the strongest authority for resisting an over-extended aiding claim.

When relevant

Applications to strike out discrimination claims or dispose of them summarily. Aiding and instructing discrimination under EA2010 ss.111-112. Resistance to case management decisions that seek early disposal. Claims against organisations or individuals for facilitating or encouraging discriminatory acts.