United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 517_95_1305

Appeal No. EAT/517/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th May 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

MRS R CHAPMAN

MR A C BLYGHTON

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MR C MUTEMASANGO          APPELLANT

STAFFLINE RECRUITMENT LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR MANJIT GILL

(of Counsel)

Messrs Will & Hill

Solicitors

8 Stanford Street

Nottingham

NG1 7BQ

For the Respondents MR JOHN WHITMORE

(of Counsel)

Messrs Nelsons

Solicitors

Pennine House

8 Stanford Street

Nottingham

NG1 7BQ


 


MR JUSTICE BUTTERFIELD: The respondents, Staffline Recruitment Ltd are a staff recruitment agency with a number of branches in the East Midlands. They have in particular a branch in Northampton. That branch recruits only temporary staff for unskilled work. It advertises almost constantly for available staff and is looking for workers immediately available and at short notice. The branch thus targets those people who can start work at once and are currently usually unemployed.

On the findings of the Industrial Tribunal the respondents have a preference in recruiting those who have been unemployed for less than six months. This preference had developed as a result of their experience over the years, in that they had found that those who had been unemployed for longer than six months tended to less reliable. However, the respondents did recruit persons who had been unemployed for more than six months if the applicant gave a valid reason for the extended period of unemployment. The evidence clearly showed that a substantial number of recruits had been unemployed for longer than six months at the time they were taken on to the respondent's books.

In mid-March 1994 the appellant telephoned the respondents having seen one of their advertisements. He spoke to a male employee of the respondents, whom the respondents were subsequently unable to identify because the detail required by them to make that identification was not available to them until many months later. According to the appellant the man asked him his name and address and whether he was unemployed. The appellant gave him the details he required and said that he was indeed unemployed. The respondent's employee then asked how long he had been unemployed? The appellant explained he had been unemployed for 15 months, whereupon the appellant was told that the respondents could not assist because it was company policy not to employ anyone who had been unemployed for more than six months. The Industrial Tribunal accepted the appellant's account of the telephone call.

The appellant immediately contacted the employment officer at the Wellingborough District Racial Equality Council. In June 1994, three months later, the appellant complained to the Industrial Tribunal that the respondents had unlawfully indirectly discriminated against him on the ground of race in applying the policy we have described.

In order to investigate and meet the complaint, the respondents sent a questionnaire to all their staff, enquiring in what circumstances an enquirer who had been unemployed for more than six months would be invited for interview. The responses differed in detail, but all staff who responded indicated that there were circumstances when someone who was over the six month limit would nonetheless be interviewed.

The complaint came before the Industrial Tribunal sitting at Bedford in March 1995. The appellant was permitted to amend his application by adding a claim of direct discrimination on the ground that the respondent's employee on hearing the appellant's name and realising that it was obviously African had rejected him for that reason. The appellant further submitted that in operating their policy of preferring those who were unemployed for six months or less, the respondents were indirectly discriminating on racial grounds. The statistical evidence was that there was a higher rate of unemployment amongst the ethnic minority groups who also formed the largest group of long-term unemployed.

The Industrial Tribunal in a decision promulgated on 4th April 1995 rejected both complaints. On the issue of direct discrimination the Industrial Tribunal found that there was not a shred of evidence that the respondents did not recruit from ethnic minorities, indeed, the evidence was to precisely the opposite effect. The appellant was unable to point to any comparator. The Industrial Tribunal declined to infer any unlawful discrimination, and they were plainly entitled so to do.

The appellant appealed against that finding, but at a preliminary hearing this tribunal held that he should not be entitled to pursue that claim to a full hearing and it was therefore dismissed at that point.

As to indirect discrimination, the "requirement or condition" applied by the respondents for the purpose of Section 1(1)(b) of the Race Relations Act 1976 was said before the Industrial Tribunal to be the policy of preferring to recruit those who had been unemployed for less than six months. By its very nature this "requirement or condition" was not an essential term or an absolute bar to being called for interview, but as the evidence clearly established and as the policy itself demonstrated, merely a preference. The Industrial Tribunal held that the decisions of Perera v Civil Service Commission [1983] ICR 428 and Meer v London Borough of Tower Hamlets [1988] IRLR 399 as decisions of the Court of Appeal were binding upon it. The requirement or condition, the tribunal held, was not an absolute bar or a "must" and thus Section 1(1)(b) of the 1976 Act did not apply. In the light of their finding that the policy did not fall within the ambit of Section 1(1)(b) of 1976 Act, the Industrial Tribunal did not consider the question of whether, if there was discrimination, the respondents could justify it. The tribunal rejected the complaint of indirect discrimination. The appellant now appeals.

Mr Gill on behalf of the appellant, first submits that the Industrial Tribunal identified the wrong requirement or condition, so far as this particular appellant is concerned. What ever he says may be the general approach of the respondents, so far as the appellant is concerned the requirement imposed was that he should not have been unemployed for more than six months. He reminds us that the Industrial Tribunal accepted the evidence of the appellant and in those circumstances the Industrial Tribunal should have concluded that such requirement or condition was imposed upon the appellant whatever may have been the generality of their policy. The appellants submits that if an applicant is told in clear terms that he is unacceptable because he had been unemployed for 15 months, it is unreasonable to expect that applicant to volunteer information explaining why that situation has arisen. If, submits the appellant, the respondents are prepared to consider long-term unemployed, they should give the applicants an express opportunity to explain what had occurred. But that was not the policy of the respondents. Whilst the Industrial Tribunal accepted the evidence of the appellant, it also accepted the evidence on behalf of the respondents, that they did take on recruits who volunteered acceptable explanations for being unemployed longer than six months.

In our judgment, in those circumstances, the Industrial Tribunal did not identify the wrong requirement or condition. Precisely the same approach was adopted so far as the respondent's policy was concerned whoever the applicant was. This appellant was treated no different to any other. There was a preference that he should not have been unemployed for more than six months, but there remained a willingness to consider any explanation he cared to offer for that situation if he volunteered it.

We are invited to hold that this preference was itself a requirement or condition. The very fact that it is a preference demonstrates, in our judgment, it was neither a requirement or a condition. On a "plain words" test, the process for selection for interview did not require a requirement or condition, but a starting point against which an application was to be considered. The approach raised a burden which any applicant could displace and often succeeded in displacing. It was not a necessary condition which had to be fulfilled, it was a flexible approach adopted by the respondents in regard, let it be noted, not only to the preference in relation to those who had been unemployed for less than six months, but also in regard to other preferences so far as age and the ability to be contacted by telephone were concerned. There was no rigid application of any term or condition here, but a general flexibility.

The appellant submits that nonetheless this appeal should be allowed on the basis that the tribunal were wrong in applying the ratio of the decision of Perera (Supra).

The Court of Appeal in Perera held that where indirect discrimination is alleged the issues are entirely objective. An applicant who claims that he has been discriminated against indirectly must establish that there has been a requirement or condition. This means a "must", something which has to be complied with.

The decision of Perera was considered by the Court of Appeal in Meer (Supra). It was submitted in Meer that Perera was not binding upon the Court of Appeal because the point in issue was not argued by the complainant. That proposition was rejected by the Court of Appeal in Meer holding that in Perera the Court did turn its mind fully to the question whether a condition or requirement for the purpose of Section 1(1)(b) imposed an absolute bar.

It is submitted before us that the ratio of Perera to which we have referred was conceded by Mr Perera, that Mr Perera did not really seek to argue the point and further that Mr Perera did not make out his case on the evidence in any event. Precisely those points were taken in Meer. The Court of Appeal rejected them, as do we. Perera remains good law and is binding upon us.

In those circumstances, it is, in our judgment, plain that there was no error of law here made by the Industrial Tribunal. It was in essence a question of fact for them to decide whether the approach by the respondents in this case amounted to term or condition. They concluded that it did not. On the evidence before them they were wholly entitled so to conclude. It would be quite wrong for this court to interfere with that conclusion, and for those reasons this appeal is dismissed.