B e f o r e :
LORD JUSTICE STEPHENSON
LORD JUSTICE EVELEIGH
and
LORD JUSTICE KERR
BETWEEN:
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BANDELE OJUTIKU
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and
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SAMUEL OBURONI
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and
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MANPOWER SERVICES COMMISSION
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(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd., Room 392 Royal Courts of Justice and 2 New Square, Lincoln's Inn, London WC2A 3RU. Tel: 01 405 9884/5)
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MR. JOHN MACDONALD Q.C. and MR. SEPALA MUNASINGHE (instructed by Messrs. Bindman & Partners, Solicitors, London NW1 2SA) appeared on behalf of the Appellants (Appellants).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE STEPHENSON: I ask Lord Justice Eveleigh to give the first judgment.
LORD JUSTICE EVELEIGH: The facts in this case are carefully set out in the judgment of Mr. Justice Slynn; I shall simply summarise them as stated in his judgment. Mr. Ojutiku and Mr. Oburoni came to this country from respectively Nigeria and Ghana in the 1960's. Mr. Ojutiku became a graduate member of the Institute of Electrical & Radio Engineers and qualified as a member of the Institute of Chartered Engineers. Mr. Oburoni came here as a physical education teacher; he trained as a mental nurse; he went into the Health Service administration and he attained the degree of Bachelor of Arts in Social Science. Both men were accepted by the London Polytechnic for a course leading to a diploma in management studies. They applied to the Manpower Services Commission to sponsor their courses; that is to say, to finance them.
The powers and duties of that commission are set out in section 2 of the Employment & Training Act 1973. Subsection (1) of that section reads:
"In addition to the functions conferred on the Commission by virtue of the provisions of this Act, other than this section but subject to subsection (3) of this section, it shall be the duty of the Commission to make such arrangements as it considers appropriate for the purpose of assisting persons to select, train for, obtain and retain employment suitable for their ages and capacities, and to obtain suitable employees including partners and other business associates".
Subsection (2)(c) provides that:
"Arrangements in pursuance of this section may be made in respect of employment or training in the United Kingdom or elsewhere".
Presumably the Commission could sponsor anyone who was admitted to the London Polytechnic for this course but, in my opinion not surprisingly, they imposed certain qualifications for applicants to fulfil. I can summarise them as follows: That they should be,, firstly, experienced in a post of commercial, administrative, professional or industrial responsibility; and they should have either a degree or a higher national diploma, or membership of a professional body.
The applications of these appellants were rejected; they were rejected on the grounds of lack of experience in the required post. They went before an Industrial Tribunal, contending that there had been a breach of section 13 of the Race Relations Act 1976, because there had been a refusal of access to a course of training which would help to fit them for employment, and it was said that this discrimination had been on the ground of their race.
They relied upon section 1 of the Race Relations Act 1976, subsection (l)(b); I will read the whole of section 1(1):
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but - (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it".
It is not contended in this case that this was a case of direct discrimination under subsection (l)(a); it is subsection (l)(b) that is relied upon, and it was found by the Tribunal, and it is accepted in this court, that the applicants have brought themselves within subsection (l)(b)(i) and subsection (1)(b)(iii); the only question that had to be determined in the Appeal Tribunal, and here, is whether or not the Commission has satisfied subsection (l)(b)(ii), namely, whether they have shown their indirect discrimination to be justifiable.
The Industrial Tribunal dismissed their application, finding that there was no breach of the Act. They appealed to the Appeal Tribunal; before that Tribunal it would seem that the argument was entirely on the ground that the evidence was not satisfactory to establish justification, because the evidence given for that purpose was the evidence of a Mr. Carradine, who was the principal training adviser of the Training Opportunities Scheme operated by the commission, and it is said that there should have been evidence of justification from an independent source.
The evidence of Mr. Carradine was to the effect that it was essential not to support candidates for the course if there was really no likelihood, or no reasonable likelihood, of their getting a job at the end of the course. He expressed the view that if the Manpower Services Commission were to support candidates who had not the requisite experience and who, at the end of the course, would not get jobs, this would have an adverse effect on the reputation of the sponsorship scheme, which in the long run would operate to the disadvantage of all those who had been selected for the course. he gave evidence of his own experience and of enquiries and investigations that he had made among employers; and he also stated that candidates who were white had been rejected because they had not fulfilled the experience qualification. He was of the view that if the two appellants in this case had taken the diploma successfully, as everybody accepted they would have done, their prospects of obtaining employment would not have been enhanced. He also said that the courses at the Polytechnic were courses which were attended by people who were still working in their regular jobs and who would greatly contribute to the success of the course, and to their own qualifications, by bringing to the class their own experience in industry. For example, there were group discussions, to which they would be expected to contribute, and people without experience would not contribute as much and, it would seem, would not benefit as much, or so readily, from the tuition and the discussions. He said that one of the most valuable points in the course is that you are going back to discuss what you have learned at the course in your own way. He said, in effect, that to take on these two men would be to raise their expectations only to find them dashed to the ground at the end of the day. As I understand his evidence, he is in effect saying that it is not the policy to sponsor everyone who is acceptable to the London Polytechnic; that some limit has to be placed upon the help which the Commission feels able to give; for myself, I think it is quite understandable that a person should take the view that if the tuition cannot be, or is not to be, available to everyone, then the preferable course is to make it available to a person who will benefit the greatest from it. That is the approach which I think the father of a family would adopt when considering where to send his children to be educated and what money would be justifiably spent upon them.
The Industrial Tribunal accepted this evidence and unanimously came to the conclusion that the Manpower Services Commission had imposed a requirement that was justifiable within the terms of section l(l)(b)(ii). The Appeal Tribunal rejected the contention of the appellants that the evidence was not appropriate, or not sufficient, in the case. It was submitted that there must be objective, and independent, evidence to establish the justifiability of the requirement, and it was contended that if employers could come forward, or if people in the position of the respondents could come forward, and simply state their own views, then the Act would be of no effect. They complained that here the Manpower Services Commission did not call evidence to show that the opportunities for the two men would not be enhanced in the market, and they had not called evidence to show that those who were selected had had their job opportunities enhanced. They relied on the decision in Steel v. Union of Post Office Workers, (1978) Industrial Cases Reports, page 181, and the guidelines indicated there.
But the Appeal Tribunal came to the conclusion that the evidence was sufficient to establish justification; that ground has been re-argued in this court and for myself I would reject it. The Appeal Tribunal held, and I agree with them, that this was not a mere expression of opinion by the Commission. Mr. Carradine gave reasons for his views; he spoke of actual enquiries made by him and he spoke of his own experience in the field. He was cross-examined on the matter; his evidence was accepted and for myself I cannot see any rule of law which requires an employer to call evidence from outside. Obviously, there are many cases where it would be sensible to do so, but it is not absolutely essential that they should. So I would come to the same conclusion as the Appeal Tribunal came to on that point.
While that is the first ground stated in the notice of appeal in this case, the argument before this court has really concentrated upon a second ground of appeal. This is one which was not argued, or at least not fully developed, before the other tribunals, but there was no objection by Miss Mallalieu, on behalf of the respondents, to that ground being argued and relied upon in this court and this court gave leave to Mr. Macdonald to pursue it.
The notice of appeal states the second ground as follows:
"It is contended that the question of justifiability, by the respondents, should correctly have been approached by a consideration by the Industrial Tribunal whether the requirement of experience imposed by employers initially was itself justifiable; in the circumstances it was wrong in principle for the Employment Appeals Tribunal to have concluded that the question of justifiability was a matter for the said Industrial Tribunal to consider as a matter of fact and that it had correctly so considered it even though there was no enquiry by the said Tribunal into whether the imposition of the initial requirement of experience was justifiable".
A distinction was drawn in argument between two employers, the ultimate employer and the initial employer. The one to whom application for work was made after the acquisition of a diploma was referred to as the ultimate employer. As I have said, the Tribunal regarded it as justifiable to take the view that such an employer would not be impressed with the possession of a diploma unless it were in the hands of a person with experience. On its own the diploma had no commercial value in this field. On the other hand if experience was necessary in order to qualify for financial assistance for a diploma course it became necessary to consider if and how initial experience could be obtained and the employer in whose employment such experience was obtainable was referred to as the initial employer.
Before this court the ground of appeal has been succinctly stated as follows. It is not permissible to justify by relying upon the practice of others which is directly discriminatory. The argument is as follows. If employers would only employ in a managerial position those who had previous managerial experience one asks "How are they to get it?" The answer must be that they can only do so abroad or by being given the opportunity from the factory floor without actually being appointed to a managerial post. As proportionately fewer black people have managerial experience this is an indication that fewer black people are offered initial management experience from the floor. There is no explanation for this other than colour. Therefore the initial employer is guilty of direct discrimination. Insistence upon experience at a subsequent stage up the employment ladder becomes discriminatory, albeit indirectly, because someone at an earlier stage has been guilty of direct discrimination. It is wrong to impose a qualification which has been denied an applicant because of earlier direct discrimination against him by others. Such later indirect discrimination can never be justified.
For the purpose of argument it was accepted that the inability to obtain initial experience was the result of direct discrimination although there was no direct evidence that men were refused experience on the grounds of colour.
Mr. Macdonald also asked the court to treat the conduct of the second employer as discriminatory and unlawful. I myself would not accept that it is. It is true that in the case we have no detailed evidence from those employers, but to my mind it is an inevitable inference that they would be able to justify the imposition of such a requirement. Mr. Carradine, in invoking the attitude of the ultimate employer, was really looking at the employer to whom the possession of a diploma would be of some value, and he was in effect expressing the view that it would only be of some value when coupled with experience, and where that existed a person's chances of employment were indeed enhanced. To my mind, that employer would clearly be justified in taking the view that as there will be no shortage of applicants with diplomas, he could impose a requirement that applicants for a managerial post in his firm or company should show that they had had managerial experience elsewhere, even though they possess a diploma. To my mind, that is a thoroughly reasonable attitude to take. So as I see it, Mr. Macdonald's argument fails in limine in so far as the ultimate employer argument is concerned.
So far as the initial employer is concerned on the basis that there is direct discrimination, does that affect the justification put forward by the respondents?
Mr. Macdonald argued that in order to justify it, the employer, upon whom admittedly lies the burden of proof, has to show that the requirement was necessary for the good of the employer's business. He referred the court to the case of Steel v. Union of Post Office Workers, reported in (1978) Industrial Cases Reports at page 181. I myself would not accept that it is essential, or at least that it is always essential, for the employer to prove that the requirement is necessary for the good of his business. It may well be that in a particular case that is the argument which is advanced by the employer; it does not follow that that is what the statute demands. I am very hesitant to suggest another expression for that which is used in the statute, for fear that it will be picked up and quoted in other cases and then built upon thereafter, with the result that at the end of the day there is a danger of us all departing far from the meaning of the word in the statute. For myself, it would be enough simply to ask myself: is it justifiable? But if I have to give some explanation of my understanding of that word, I would turn to a dictionary definition which says "to adduce adequate grounds for"; and it seems to me that if a person produces reasons for doing something, which would be acceptable to right-thinking people as sound and tolerable reasons for so doing, then he has justified his conduct.
Approaching the matter in that way, I now ask myself whether the requirement in this case, broadly speaking, was shown to be justifiable, and then go on to ask whether the fact that the disqualification resulting from the direct discriminatory conduct of others makes any difference.
I can see nothing at all unreasonable in imposing this restriction; clearly some selection of candidates, if they are to be supported, has to be made. The Commission is empowered to make such arrangements as it considers appropriate, and while it is not under an obligation to impose this requirement, it seems to me that it is entirely up to the Commission if it does so -subject only, of course, to the limitation which exists in this case that where such a requirement is in danger of infringing the Race Relations Act, the Commission must be prepared to justify it.
So, having concluded that this was a reasonable requirement to impose, broadly speaking, I now ask the second question: Does it cease to be justifiable if the disqualification arose from the act of direct discrimination by others? What the respondents have to justify is their own conduct, not that of other people. If it is justifiable to require a qualification, although it is discriminatory in the indirect sense, in my opinion it could not alter the position if the qualification were made impossible of attainment by the act of another. The letter's discrimination would be in no way the responsibility of the respondents; it would of course be deplorable, but that is another matter. Many people are without the necessary qualifications for certain pursuits - indeed, most of us are without the necessary qualifications for something or another. Some lack them through their own fault; some through misfortune or lack of opportunity, but that is life; and if an employer imposed a similar qualification to that imposed in this case by the Commission, one could not expect him to waive it in the case of a person who lacked the qualification through misfortune, even if that misfortune were to be discrimination against him by another.
In this court the respondents accept that these two cases are sad ones, but it is a fact of life that one does find sad cases. Any direct discrimination by employers at the first stage is indeed greatly to be deplored, but the Commission has to make its decisions upon practical grounds. It is not its role to right the wrongs of others, and it has to take the labour market as it is. For those reasons, I would dismiss this appeal.
Perhaps I should just add this: I myself raised a point in the course of argument to the effect that the Commission might be seen to he considering the matter only from the standpoint of the labour market in this country, whereas by section 2(l)(c) of the Employment & Training Act 1973, which I have already quoted, their function would appear to extend beyond this country. But that subsection relates to their powers; it does not impose upon them a duty to consider the wider field, and if they were considering employment opportunities only in this country, on reflection I take the view that they are entitled so to do.
LORD JUSTICE KERR: The applicants have argued two main issues on this appeal, although the second one was not argued below.
The first submission is that there was unlawful racial discrimination by the Commission in this case in that they required, by way of a guideline for sponsorship to a diploma in Management Studies courses, some previous managerial experience. In this connection it was agreed before us that the first relevant requirement, which refers to experience in posts of various kinds involving responsibility, which Lord Justice Eveleigh has quoted, is to be taken to refer to some experience which goes beyond supervising others; something in the nature of organisational and personnel management.
The second submission is that the Commission was guilty of unlawful racial discrimination in basing this guideline on what is said to be the discriminatory practice of employers generally, by requiring such experience from applicants for managerial posts who are not promoted internally to managerial positions. In other words, the argument was that employers in industry generally obtain their first-time managers either by promotion from within or, if appointed from outside, from persons with prior managerial experience; and it is said that this is in itself contrary to the Race Relations Act 1976 on the part of industry generally, since it places coloured persons at a disadvantage.
In both of these respects it is submitted that the Commission has failed to discharge the onus under section l(l)(b)(ii) of the 1976 Act by showing that its requirement of previous managerial experience is justifiable.
I will deal first with the first submission. It is conceded by the Commission that the applicants satisfied section l(l)(b)(i) and (iii). It follows that it is common ground that to this extent the requirement of previous managerial experience operates in a racially discriminatory manner to the detriment of coloured people such as the applicants. Therefore the only issue is whether there was evidence before the Industrial Tribunal on which it could reasonably conclude that this requirement was justifiable. This involves, first, a question of law as to the meaning of the word "justifiable"; and, secondly, if the Tribunal has not misdirected itself in relation to the meaning of "justifiable", the issue becomes a question of fact for the Tribunal.
The applicants submit that "justifiable" in section l(l)(b)(ii] means "necessary as a matter of business", or "something in the nature of a legitimate business necessity"; and in this connection they rely upon an American judgment, in Rowe v. General Motors Corporation in 1972, a decision of the United States Court of Appeals, reported in 457 Federal Reporter, Second Series at page 348.
They also rely upon certain passages in the decision of the Employment Appeal Tribunal in Steel v. Union of Post Office Workers, reported in (1978) Industrial Cases Reports, 181, in particular at page 187 H.
So far as the American case is concerned, it should be borne in mind that the United States legislation appears to have no counterpart to the provision which is crucial in this case, section l(l)(b)(ii); and it is also to be noted that in that case actual discrimination was established against the employers in question as the result of a prior practice of direct discrimination, which undoubtedly caused coloured employees to suffer by not having been able to get the same experience for the purposes of promotion as their white colleagues.
For myself, I do not see how Rowe v. General Motors Corporation could in any event be applied in the context of the English legislation unless the facts were similar, which they are not in this case.
In Steel v. Union of Post Office Workers, the point under consideration involved the corresponding provisions, in the same terms, of the Sex Discrimination Act 1975. It seems to me that the Employment Appeal Tribunal in that case put something of a gloss on the word "justifiable" by suggesting that it was equivalent, or close to having the same meaning as "necessary". But that gloss was rightly shaded, to put it no higher, by another decision of the Employment Appeal Tribunal in Singh v. Rowntree MacKintosh Ltd., (1979) Industrial Cases Reports, 554, at page 557, in which the approach was in effect that "justifiable" means "reasonably necessary in all the circumstances". In the same way as Lord Justice Eveleigh, I decline to put any gloss on the word "justifiable", which is a perfectly easily understandable ordinary word, except that I would say that it clearly applies a lower standard than the word "necessary". This is also an ordinary word which is often used in legislation, but it has not been used in this case.
It seems to me that the Industrial Tribunal took the right view of the meaning of the word "justifiable" in this case. What they said, in an important passage of their decision at page 12, paragraph 64 (page 25 of our bundle) was this:
"In the present situation the tribunal were unanimously of the view that the respondents have made out their case under Section l(l)(b)(ii) of the Race Relations Act 1976. In the view of the tribunal the requirement of prior management experience is a requirement that is justified. The tribunal were unable themselves nor indeed were they able to obtain from anyone present any suggestion as to how this criterion (managerial experience) could be changed so that on the one hand the discrimination was removed and so that on the other hand the standard was maintained and that the employability after the obtaining of the qualification was also retained".
From this passage it is clear that the Tribunal considered that there were two good grounds for the Commission's requirement of previous managerial experience for this course; indeed, "advancing good grounds" is one of the dictionary definitions of the verb "to justify". The first ground, and to my mind by far the most important one, is that on the evidence before it the Tribunal was satisfied that the employment prospects of would-be managers are not in fact enhanced by such persons attaining the paper qualification of a diploma in Management Studies. The second ground was that they were satisfied that the requirement imposed by the Commission was justifiable as maintaining the standard of the qualification sought by applicants to the Commission and of the standard of the assistance and services provided by the Commission itself.
In the light of the evidence to which we have been referred it may not have been necessary for the Commission to lay down the requirement of previous managerial experience. But the first of these grounds, at any rate, was to my mind clearly capable of being considered by the Tribunal to be justifiable by reference to the functions of the Commission under section 2(1) of the Employment and Training Act 1973.
It is conceded on behalf of the applicants, in the context of this section, that the Commission must be selective to some extent, because of limited funds. It cannot sponsor or assist everyone by paying for every course of training for which any applicant may be acceptable by virtue of his qualifications. The Commission must be entitled to impose appropriate additional requirements to seek to ensure that its financial assistance will in fact be likely to further the applicant's actual prospects of employment, and that its assistance will not result merely in additional paper qualifications.
I therefore consider that unless the Commission was not entitled to rely on the practice, or the alleged practice, of employers generally, which I have explained, there was material on which the Tribunal was entitled to conclude that the Commission had discharged the onus of "justifiability" under section l(l)(b)(ii). I accordingly consider that the decision of the Employment Appeal Tribunal is clearly entitled to be upheld on the basis of the issues which were before it.
I then turn to the new point which was taken here and not at either of the stages below. In this connection Miss Mallalieu submitted that, in discharging its functions under section 2(1) of the Act of 1973) the Commission must act on the basis of the employment market as it in fact is. If this is right, then I think that the Commission was certainly also justified in gearing its selective assistance to persons seeking employment in the United Kingdom, and in not considering possible employment elsewhere, even though it has the power to do so under section 2(2)(c) of the 1973 Act. Although employment prospects abroad are within the powers of the Commission, I have no doubt that selectivity on the basis of the prospects within the United Kingdom must be a justifiable approach in view of the limited funds available.
If Miss Mallalieu's submission is right, as I think it is, then it also follows that the Commission must, or must at any rate be entitled to, decide its priorities on the basis of the actual employment prospects in this country of applicants for assistance. I do not think that the applicants in the present case can challenge this by alleging that the situation which in fact exists in the employment market generally is in itself contrary to section l(l)(b)(ii), and that the Commission must therefore disregard this in deciding on the appropriate manner of discharging its functions under section 2. In my judgment it would be contrary to the provisions of section 2(1) if the Commission were to have regard to some hypothetical, or Utopian, situation which does not correspond to the reality, even though the reality may well be regrettable.
Furthermore, while it may be that some individual employers might possibly have difficulty in justifying a requirement of previous managerial experience.{on the part of applicants from outside for managerial posts, I think, in the same way as Lord Justice Eveleigh, that such a requirement could be justified as a reasonable requirement in the generality of cases. Obviously, the Commission cannot gear its practices to some clear conduct of unlawful and unjustifiable discrimination in particular instances, such as by some employers, or by some trade unions. That would bring the Commission into grave danger of direct discrimination under section l(l)(a). But this has no application to the present case and is not suggested on this appeal, since direct discrimination is expressly disclaimed.
I have already mentioned that I do not regard Rowe v. General Motors Corporation as being of any general authority in relation to the present argument. It seems to me that what the Commission must be concerned with in discharging its functions under section 2(1) are the actual circumstances of the employment market in general in this country. The question whether the Commission's assistance will in fact enhance the prospect of applicants in that market is the question which the Commission must face. It cannot, in reality, have regard to anything else; and I think that if it overtly purported to have regard to circumstances which do not in fact exist, it would be in danger of acting ultra vires the section. Within its provisions, the Commission cannot spend funds which are not in fact likely to further the employment prospects of the assisted persons in the actual labour market, on the ground that it would enhance the prospects of such persons in an ideal world, or in a hypothetical Utopian labour market.
For these reasons I feel bound to reject the new point which has been argued before us, and thus to dismiss this appeal. I should add that in listening to the argument on the new point taken on this appeal I had not appreciated the distinction sought to be drawn between the initial and the ultimate employer which has been mentioned by Lord Justice Eveleigh. There was no evidence that either of these applicants had suffered from discrimination before they applied to the Commission, and direct discrimination by the Commission in regard to them was expressly disclaimed on this appeal, although this had been argued below in the context of their interviews when they applied to the Commission for financial assistance. But in my view it would make no difference if there had been any evidence of discrimination by a prior employer in regard to them: the proper function of the Commission would still have been to base its decision upon their ultimate prospects in the employment market, i.e. whether or not these would have been enhanced by this qualification.
I would, however, mention one further matter. This is that in its decision the Industrial Tribunal also made it clear that the experience of these two applicants in relation to this particular application for sponsorship is not typical of that of coloured applicants generally. The Tribunal said that the situation "is of course far less bleak than it would appear from this particular isolated case", and went on to give statistics of what has happened in other cases, which clearly show that the extent to which these two applicants appear to have been placed at a disadvantage in this case is not to be taken as a reflection of the position of coloured applicants to the Commission in general.
LORD JUSTICE STEPHENSON: These applicants presented complaints to an Industrial Tribunal under section 54 of the Race Relations Act of 1976 that the respondent Commission had committed an unlawful act of racial discrimination against them in the employment field. The acts alleged were refusals to afford each applicant access to a course of training which would help to fit him for employment, contrary to section 13(1), which applies, by subsection (2)(b), to vocational training bodies, including the Commission. The Commission admitted that it had discriminated against them by applying to each a requirement, or condition, which would apply equally to persons not of the same racial group, but which only a smaller proportion of his racial group could comply with, and which was to his detriment because he could not comply with it. Therefore, the requirements of subparagraphs (i) and (iii) of section l(l)(b) of the Act were satisfied, and the only issue before the Industrial Tribunal was whether the Commission could satisfy the elusive requirements of sub-paragraph (ii) by showing that the condition, or requirement, was justifiable irrespective of his race.
The Industrial Tribunal held that the Commission had shown that that discriminatory condition was justifiable after a hearing extending over three days, in a reasoned decision running to 71 paragraphs. The Employment Appeal Tribunal held that the evidence of Mr. Carradine, the Principal Training Adviser of the Commission's Training Opportunities Scheme, provided evidence upon which the Industrial Tribunal was entitled to come to its conclusion, and did not misdirect itself or err in law. The Appeal Tribunal dismissed the applicants' appeals and gave them leave to appeal to this court.
Mr. Macdonald, on their behalf, submits that the tribunals erred in law, and that we should allow the appeals, either granting a declaration under section 56(l)(a) of the Act, which would require an amendment of his notice of appeal, or remitting the matter to the Industrial Tribunal for re-hearing.
Miss Mallalieu, for the Commission, asks us to dismiss the appeals, or, if we allow them, not to remit.
I agree that the appeals must be dismissed, for reasons which, in deference to Mr. Macdonald's interesting argument, I will put in my own words.
He rests the appeal on two grounds, the second of which has been read by my Lord, Lord Justice Eveleigh. The first ground is:
"That the Employment Appeal Tribunal and the Industrial Tribunal erred in law in upholding the Respondents' plea of justifiability under Section l(l)(b)(ii) of the Race Relations Act 1976 merely on the evidence of their Principal Training Adviser and others".
There is no trace of the second ground in the decision of either Tribunal, and I accept Miss Mallalieu's recollection that the only point argued by the solicitor then appearing for the applicants was the first. It was mainly a corroboration point as I read the judgment of the Appeal Tribunal, but it was also based on the proposition that the Commission's practice of absolutely refusing to sponsor those who were, like the applicants, without actual managerial experience, for the Central London Polytechnic Training Course in Management, and so discriminating against them by not facilitating access to the course (see section 40 of the Act) was a practice which was not only not right, but not necessary: see the judgment of Mr. Justice Slynn, summarising the submissions for the applicants, at pages 7 and 8 of the judgment, pages 10 and 11 of our bundle.
In so far as the applicants' appeals rested on the need for evidence corroborating Mr. Carradine, I agree with the Appeal Tribunal's rejection of it. In so far as they rested on the need for justification of direct discrimination by necessity, I think that their decision was wrong in that it ignores the comments, which I regard as sound, made by Lord McDonald, giving the judgment of the Employment Appeal Tribunal in Scotland in the case of Singh v. Rowntree MacKintosh Ltd., (1979) Industrial Cases Reports, 554, at 557, upon the judgment of the Appeal Tribunal given by Mr. Justice Phillips in Steel v. Union of Post Office Workers, to which my Lords have referred.
What Mr. Justice Phillips there said is valuable as rejecting justification by convenience and requiring the party applying the discriminatory condition to prove it to be justifiable in all the circumstances on balancing its discriminatory effect against the discriminator's need for it. But that need is what is reasonably needed by the party who applies the condition; and the question here is: have the Commission good and adequate reasons for requiring managerial experience from those whom it sponsored with financial support in pursuance of its statutory duty under section 2 of the Employment and Training Act 1973, which my Lord, Lord Justice Eveleigh, has read, to make the arrangements referred to in that section and to discharge that duty out of the sums paid to the Commission with the approval of the Treasury under section 11 of the Act, for which the Commission has to account under paragraph 14 of the First Schedule to the Act.
I find, in the evidence of Mr. Carradine, good and adequate reasons for the Commission's treating the Polytechnic's course for existing and potential managers as an advanced management course, and limiting its own sponsorship of applicants to existing and potential managers with experience in managerial responsibility, commercial, administrative, professional or industrial. The justification for that limiting requirement or condition lies in the Commission's duty to obtain employment, and in its experience that employers do not employ applicants, whatever their race and even if they have a diploma in Management Studies, unless they have actual managerial experience. It is that harsh fact of life and employment, commercial, administrative, professional and industrial, which was, on the evidence before the Industrial Tribunal, the primary justification for the Commission's not spending public money on applicants who will not benefit job-wise from its sponsorship.
This Mr. Macdonald now seeks to meet by his new point, taken without objection from Miss Mallalieu, that the industrial practice of employers in rejecting applicants who have no managerial experience is itself, on its face, discriminatory; that the Commission called no evidence to justify that practice and that it was the duty of the Commission not to encourage such discrimination but to disregard the practice and act in conformity with the principle of non-discrimination. As it had failed to justify this second-hand discrimination by a third party, it could not justify its own discrimination, even if it was not itself guilty of aiding and abetting the unjustified discrimination generally practised by employers within section 33 of the Act of 1976.
He conceded that there was no authority for increasing the burden imposed by section l(l)(b)(ii) by this extension to this kind of third party liability. I do not think that we have to decide whether it would always, or would never, be right to take into account B's discriminatory practice as justifying, or not justifying, A's discriminatory practice; for I accept Miss Mallalieu's submission that, applying common sense and common knowledge to the evidence of Mr. Carradine, including his evidence that there were at the material time 60,000 persons on the Professional Employment Register seeking jobs, we have no reason to suppose that this general practice of employers is unjustifiable, and no need of further evidence that it is justifiable. With supply exceeding demand, why should they forego, by engaging first-time managers, their choice of employees with practical experience to meet their legitimate business requirements?
I had not understood Mr. Macdonald to raise any question of direct discrimination before this court. There was no evidence of direct discrimination by initial employers, and I agree that, if there had been, it would not be the Commission's responsibility.
In my judgment, there was material upon which the Industrial Tribunal could properly find that the Commission was justified in accepting the requirements of employers, manifested in this industrial practice, and in formulating its own requirements accordingly, in the interests, not only of the standards and reputation of its own scheme and services, but of the public purse and of the applicants for sponsorship themselves.
I accordingly agree that the appeals should be dismissed.
(Order: Appeals dismissed with costs; application for leave to appeal to House of Lords refused)
