United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 152_95_2503

Appeal No. EAT/152/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 March 1996

THE HONOURABLE MR JUSTICE HOLLAND

MISS J W COLLERSON

MR S M SPRINGER MBE

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(1) INTERNATIONAL LANGUAGE INSTITUTE LTD

(2) MR NIGEL McEWEN           APPELLANTS

MISS S S THIAGARAJAN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR T WALKER

(of Counsel)

Messrs Jones Myers

Solicitors

Pearl Chambers

22 East Parade

Leeds

LS1 5BZ

For the Respondent MR G P BAXTER

(of Counsel)

Commission for Racial Equity

Yorkshire Bank Chambers

First Floor

Infirmary Street

Leeds

LS1 2JP


 


MR JUSTICE HOLLAND: This is an appeal from a decision of an Industrial Tribunal sitting at Leeds, on 29 and 30 September and 16 November 1994 with Extended Reasons sent to the parties on 9 January 1995.

The decision was expressed in these terms:

"The unanimous decision of the tribunal is that the applicant's claim that she suffered racial discrimination contrary to the Race Relations Act 1976 is well-founded in respect of both respondents and the case will be relisted for remedy to be considered."

We add in parenthesis that on 10 May 1995, there was a further hearing dealing with remedy. In the result, the Tribunal ordered the First Respondent then before it, International Language Institute Ltd, to pay the Applicant, Miss Thiagarajan, £1,250.

It is convenient immediately to look at the law bearing upon this case, which is to be found in subsections 1(1), 3(1) and 13(1) of the Race Relations Act 1976:

"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.

3(1) In this Act, unless the context otherwise requires -

`racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins;

`racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.

13(1) It is unlawful, in the case of an individual seeking or undergoing training which would help fit him for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against him -

(a) in the terms on which that person affords him access to any training course or any facilities concerned with such training; or

(b) by refusing or deliberately omitting to afford him such access; ..."

Turning from the law to the facts, the Industrial Tribunal was concerned with alleged discrimination which arose by way of an interview of 28 January 1994, the result of which being confirmed in a letter of 30 January 1994.

The interview in question had been conducted by the original Second Respondent, the present Second Appellant, Mr Nigel McEwen, on behalf of the original First Respondent, now First Appellant, International Language Institute.

The subject of the interview was the present Respondent. The object of the interview was to assess her for the purposes of a place on an intensive four-week course conducted by the Appellants, the course being for the Cambridge Certificate in Teaching English as a Foreign Language to Adults course. The course in question was one that was due to start in March 1994.

Turning to the Applicant, the present Respondent, the findings of the Tribunal in paragraph 2(a):

"2(a) The applicant, Miss Thiagarajan, was 24 years of age at the time of the events giving rise to her complaint. She is of Indian origin and came to Britain with her family when she was 10 years old. Tamil is her mother tongue but she attended a catholic school in India where the formal teaching was all done in the English language.

(b) She obtained a 2:2 honours degree in English from Birmingham University in July 1993 having collected the usual `O' level passes and 4 `A' level passes at school. During her degree course she studied social linguistics, linguistics in the context of teaching English as a foreign language and the theories of second language acquisition.

(c) Having failed to find immediate employment the applicant decided to take a further educational course which would qualify her to teach English to foreign students of the language. She applied to be enroled on a `TESOL' course. This is a course for `Teaching English to Speakers of Other Languages'. She was accepted without interview to start in January 1994.

(d) The `TESOL' course was undersubscribed and cancelled. She therefore applied to the first respondent, International Language Institute Ltd in Leeds, to take their `CTEFLA' course. ... . Although the application form requested the provision of alternative starting dates, the applicant purposely specified only a starting date of March 1994. She did this because she was anxious to obtain the certificate in time to apply for jobs during the busy summer period of 1994. She was also fairly confident of being accepted because of her qualifications and because of the ease with which she had been accepted for the `TESOL' course.

(e) At the time of her application the applicant did not appreciate that the `CTEFLA' course was more intensive than the `TESOL' course and much more highly regarded by prospective employers."

The Tribunal further found that her application form had revealed that her nationality was Indian and that her mother tongue was Tamil. They found that she satisfied the educational requirements; that her pre-interview task was completed satisfactorily and that she had passed the initial group interview conducted on 28 January 1994 "although she was rather reticent and did not shine".

Turning then to the Second Respondent, Mr McEwen, the Tribunal find that he has extensive experience in this particular field; that he had established the Institute in 1989 and that it was an organisation that was gradually expanding and was now into profit. There is an important further finding:

"2(f) ... There was no evidence, nor was it ever suggested, that the school or Mr McEwen operated any sort of colour bar or filtering system based on colour, race or creed. By far the larger part of the school's activity is teaching English to overseas students and so the Institution is never without a racial and ethnic mixture of students."

Turning then to the interview, that which appears in the extended reasons, is effectively confined to subparagraph (l):

"2(l) Although there were two versions of the interview, the differences between the applicant and Mr McEwen were those of personal recollection. Neither party took notes at the time. Despite the differing interpretations, it is clear that the matters which distressed the applicant were discussed. She says that Mr McEwen was relaxed and kind until he started to suggest that the course was not for her. She says that when she protested he became supercilious and condescending and Mr McEwen said that the interview went well throughout and there was no sign of any unhappiness on the part of the applicant. Be that as it may, Mr McEwen told the applicant that non-native speakers had difficulty in successfully completing the `CTEFLA' course and that because it was so intensive their pronunciation and grammar deteriorated. He also made it clear that in his view, she would have difficulty in obtaining work because she was a non-native speaker. He told her, in terms, that most people wishing to learn English would wish to be taught by a native speaker. She understood him to be also saying that her appearance, being obviously Asian, would be against her in that regard. She even asked if she would have more chance of being employed if she concealed the fact that she was Indian. ..."

The letter of 30 January was in these terms:

"Thank you for attending an interview for the RSA CTEFLA course last week. As discussed I am not sure that the RSA course will assist you in finding the kind of work you are looking for or will not be particularly relevant to you. If however, you still wish to pursue your application and accept the difficulties that non-native speakers have on the course, then I would be happy to reconsider your application perhaps for a course later in the year which would give you time to prepare for the course."

Before proceeding to the balance of the decision, we interpose with the observation that so far we appear to have recorded the version of the interview as put forward by the then Applicant. Mrs McEwen's version does not appear to be set down, although our understanding is that it may not have been materially different, at least with regard to the issues for consideration by the Tribunal.

It is in those circumstances that we are now able to look at the decision. First, the Tribunal rejected two allegations, which had been based on Section 1(1)(a), that is, it rejected allegations of direct discrimination.

Then we turned to the remaining allegation based on 1(1)(b) and its findings require full rehearsal:

"The tribunal takes a different view of the allegation that she was discriminated against under the provisions of Section 1(1)(b). The tribunal accepts that any college or educational institute has the right to select or reject students for its courses but such a decision must not be in breach of the Act. Whilst not the most obviously brilliant of candidates, the applicant was an educated woman of 24 having shown the perseverance and dedication necessary for someone from an ethnic minority to obtain a good average degree in a subject reasonably relevant to the course for which she was a candidate. She was plainly a lady of strong will who had decided to add to her qualifications at a time when employment seemed impossible and whether she took a `TESOL' course or a `CTEFLA' course and whether employment would be easy or difficult afterwards was not the most important matter to her at that time. She was prepared and able to pay for a course which would certainly not have been a waste of effort. Mr McEwen took it upon himself to decide that she had not made sufficient enquiries about the difficulties of the course and the job prospects thereafter. In his reasons for rejecting her for the March course he was clearly confusing these two matters. On the evidence of her previous achievements, it seems extremely likely that this lady would have coped satisfactorily with the course. Job prospects were another matter. It might be correct to say that job prospects for a non-native speaker are worse in this field than for a native speaker. It may also be true that a black barrister might have less chance of obtaining a place in chambers than a white barrister. Is that a reason for refusing a black person a place on a law degree course? The net result for the applicant was that Mr McEwen was applying a condition that his pupils on that particular `CTEFLA' course, unless they were exceptionally clever, were really required to be native born speakers of English. He was discounting non-native born candidates because in his view their opportunity of employment in this country would be poor and their chances of success in the course would be slight. Clearly the proportion of the applicants racial group who could comply with that condition is considerably smaller than the proportion of British nationals who could comply. Whilst Mr McEwen would argue that this discrimination was justifiable because he was taking his decisions for the applicant's benefit the tribunal do not accept this. In the tribunal's view the applicant was perfectly able to make a decision of this sort on her own behalf and had proved so in the past. There was a clear breach of section 1(1)(b) of the Act. The loss of the chance to go on this particular course was clearly a detriment. The tribunal finds indirect racial discrimination by both respondents."

We are satisfied that, for the Applicant to succeed in her case of indirect racial discrimination, it is necessary for her to prove that the Respondent to her application applied to her a requirement or a condition which they applied, or would apply equally to persons of the same racial group. There has been Court of Appeal authority as to the nature of any such "requirement or condition", namely Perera v Civil Service Commission [1983] IRLR 166 and Meer v London Borough of Tower Hamlets [1988] IRLR 399. The essential effect for present purposes of those two decisions comes in a sentence from the judgment of Dillon LJ in the case of Meer:

"The case of Perera decided that there can only be a requirement or condition within s.1(1)(b) of the Race Relations Act 1976 if the requirement or condition, or whatever other word may be used to describe it, is mandatory and an absolute bar to selection."

Additional to proving such requirement or condition, it then behoved the Applicant to prove that it 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". Finally, it is for her to prove that it is "to the detriment of that other because (she) cannot comply with it". There, prima facie, one has racial discrimination but that finding then is subject to the power of the Respondent to the application to counter by justifying the discrimination as is provided for by Section 1(1)(b)(2).

It is plain that for an Industrial Tribunal the starting point is a clear finding, on the evidence, as to whether there was "a requirement or condition" as thus defined or not. It is further imperative that any requirement or condition as is found be carefully defined so as to establish its precise ambit and thereby establish a basis for any required finding as to justification. It goes without saying that, without a clear definition of the requirement or condition, there cannot be a sensible finding as to justification.

Turning back from that analysis to the extended reasons, we regretfully are of the view that we cannot discern a finding of "a requirement or condition" to satisfy the test that the law prescribes. There is no clear finding as to what, if any, requirement or condition there was, still less, is there any clear analysis of the evidence as to such. The nearest the Tribunal got in its task, lies in the sentence: "The net result for the applicant was that Mr McEwen was applying a condition that his pupils on that particular `CTEFLA' course, unless they were exceptionally clever, were really required to be native born speakers of English".

As to this, the problems are several. First, there is no attempt made by the Tribunal to assess whether any such condition as thus defined, met the absolute requirement as laid down by the Court of Appeal and the point is made that with what Mr Walker has described as a proviso, "unless they are exceptionally clever", it is difficult to see any such condition as fulfilling the standard as prescribed.

Rather worse than that, however, Mr Baxter (with commendable candour) agrees that he can find no basis for that proviso in the evidence. Yet further, he agrees that the use of the term "native born speakers" in no way reflects the evidence and, but for the next ensuing sentences, already apparent from the citation of the full paragraph (c), it would appear to have been a slip of the pen. As it is, one cannot candidly be certain that it was that, rather than it reflected confused thinking on the part of the Tribunal.

Thus it is, there is no decision that we can sustain by reference to Section 1(1)(b). Mr Baxter has argued that we might, as it were, apply a blue pencil to parts of that sentence and test the matter on the basis that there was no proviso and that the condition was that the Applicant should be "a native speaker".

Plainly, looking at the evidence as a whole, that could have been an approach open to this Industrial Tribunal, but as of now it is difficult to accede to his submission. There is no clear analysis as to what "a native speaker" actually meant in this context, and certainly no analysis of what it meant sufficient to have any consequent satisfactory investigation into the justification that Mr McEwen would then be relying upon. Indeed, the whole question of his justification is not essentially addressed. One begins to get a hint of it in that which we have quoted from the evidence of the Applicant as to what happened at the interview namely that non native speakers did not respond well to the pressure of the course. There is no finding that that was indeed what he was putting forward as a justification, still less is there any attempt to analyse it as to its weight for the purposes of countering any inference of racial discrimination.

In reaching this decision, we have reminded ourselves that the minimum justifiable criteria for any course for would-be teachers of English to foreigners, would even in 1996 ex hypothesi discriminate against most racial groups in the world. The critical problem is the defining of the condition, so it does not exceed the justification that is inherent to the proper conduct of these teaching establishments. That, in its turn, must require careful and objective analysis by an Industrial Tribunal as to what precisely is the condition and what precisely is the justification for that condition. It is that analysis that we cannot discern from these extended reasons.

It is therefore inevitable that we allow this appeal and we shall remit the matter to the Industrial Tribunal for a re-hearing before a differently constituted Tribunal.

Before departing from this matter, this Tribunal's eyebrows have been raised at the absence of any note as to what was said at the interview which might have assisted everybody in dealing with this matter. Those eyebrows are similarly raised at the use of the shorthand term "native speaker" albeit appears to be used in the English for Foreigners circles when such concept plainly contrasts with that which is set out at page 7 of our bundle, namely that a candidate should, inter alia, "have a standard of English, both written and spoken equivalent to that of an educated speaker, for whom English is a first language ...".

The latter definition quite understandably, will exclude the vast majority of the native English speaking population; understandably because we are only looking at people with a standard that is appropriate to the teaching of English to foreign people. If one reduces it to "native speaker", one then brings back into the equation large numbers of people who otherwise would be excluded. None of this directly bears upon the issue but it should provide food for thought for anyone concerned to keep any hint of discrimination out of this area.

That, at any rate, is the initial view on the material in front of us. It may well be that a differently constituted Industrial Tribunal will have its own views and those, since they will be based on the evidence, will undoubtedly prevail. That said, we felt it right to make those two comments.