At the Tribunal | |
Judgment delivered On 17th January 2001 |
Before
THE HONOURABLE LORD JOHNSTON
MRS A GALLICO
MS B SWITZER
(2) THE LORD CHANCELLORS DEPARTMENT |
APPELLANTS |
(1) MS J COKER (2) MS M OSAMOR |
RESPONDENTS |
Transcript of Proceedings
JUDGMENT
For the Lord Chancellor and The Lord Chancellor's Department |
SIR SIDNEY KENTRIDGE QC and MR RICHARD McMANUS QC Employment Litigation Team The Treasury Solicitor Room 544 Queen Anne's Chambers 28 The Broadway London SW1H 9JS |
For Ms J Coker For Ms M Osamor |
MS JANE DEIGHTON (Solicitor) Messrs Deighton Guedella Solicitors Top Floor 30/31 Islington Green London N1 8DU MS KARON MONAGHAN (of Counsel) Messrs Deighton Guedella Solicitors Top Floor 30/31 Islington Green London N1 8DU |
LORD JOHNSTON: This appeal is at the instance of the Lord Chancellor and his department against the decision of the Employment Tribunal that in the selection of a special adviser he contravened the provisions in respect of the first respondent, as she now is, the Sex Discrimination Act 1975 and in respect of the second respondent, as she now is, both that Act and the Race Relations Act 1976.
Section 1 of the Sex Discrimination Act 1975 ["SDA"] and the Race Relations Act 1976 ["RRA"] define discrimination (in so far as is material to these cases).
Section 1(1)(a) of the SDA (direct discrimination) provides that:
"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man "
Section 1(1)(a) of the RRA (direct discrimination) provides that:
"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 "
Section 1(1)(b) of the SDA (indirect discrimination) provides that:
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if
(b) he applies to her a requirement or condition which applies or would apply equally to a man but-
(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
(iii) which is to her detriment because she cannot comply with it."
Section 1(1)(b) of the RRA (indirect discrimination) provides that:
"A person discriminates against another in any circumstances relevant for the purposes of any provisions of this act if-
(b) he applies to that other a requirement or condition which 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."
The relevant circumstances for the purposes of these appeals are set out in section 6(1) of the SDA and section 4(1) of the RRA. Section 6(1) of the SDA provides that:
"It is unlawful for a person, in relation to employment by him to discriminate against a woman-
(a) in the arrangements he makes for the purpose of determining who should be offered that employment "
Section 4(1) of the RRA provides that:
"It is unlawful for a person, in relation to employment by him to discriminate against another-
(a) in the arrangements he makes for the purpose of determining who should be offered that employment "
Article 1 of the Council Directive "on the implementation of the principle of equal treatment for men and woman as regards to employment, vocational training and promotion, and working conditions", 76/207/EEC ["the Equal Treatment Directive"] provides that:
"The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment This principle is hereinafter referred to as "the principle of equal treatment"".
Article 3 provides that:
"Application of the principle of equal treatment means that there should be no discrimination whatsoever on grounds of sex and the conditions, including selection criteria for access to all jobs or post whatever the sector or branch of activity, and to all levels of occupational hierarchy."
(1) The nature of the requirement in terms of section 1(1)(b) of both sets of legislation.
(2) The issue of disproportionate impact in terms of section 1(1)(b)(i) of the legislation.
(3) Assuming a prima facie case of discrimination has been made out whether such can be justified in terms of section 1(1)(b)(ii), and
(4) whether in the final analysis either or both respondents suffered a detriment by reason of their inability to comply with the requirement in terms of section 1(1)(b)(iii).
In this respect the decision of the Employment Tribunal is in the following terms:
"59. We have set out the full terms of the letter written on 21 August 1997. The Lord Chancellor there set out the many qualities which he identified in Mr Hart. He refers to the fact that those who had approached him previously with a view to becoming his Adviser had been rejected by him because they were not of sufficiently high quality. He does not, in that letter, refer to the trust and confidence which he reposes in Mr Hart, based on long experience, as being the key factor for the appointment, or even a significant factor, expressed in those terms.
60. The Lord Chancellor chose not to attend the hearing of the case to give evidence. He is said to have taken that decision for reasons which were set out in a letter dated 19 February 1999 from the Treasury Solicitor to the Applicants' Solicitors. The Tribunal has see those reasons, and insofar as they reflect upon the way in which the hearing of the case might be conducted, the Tribunal does not agree with them. However, we are not concerned to become involved in an argument about the reasons for non-attendance, because the simple fact is that there is an absence of evidence from the Lord Chancellor. We must arrive at our findings on the basis of the evidence which is in fact before us. The best evidence we have about what was in the mind of the Lord Chancellor in the relevant respects is what is set out in the contemporaneous correspondence to which we have referred.
61. Additionally, in the exercise of the power conferred by rule 4(3) of the Rules of Procedure, the Tribunal required the Lord Chancellor to furnish a written answer to a question. Rule 4(4) requires the Tribunal to take account of the written answer furnished pursuant to that question in the same way as it takes account of representations in writing presented by a party pursuant to Rule 8(5). The question was:
"Of all those people from whom you would have considered selection of a Special Adviser, during the period of time when you were minded to appoint Garry Hart, to carry out the functions which you were minded to entrust to Garry Hart, what proportion of them were women, and what proportion were apparently of African, Caribbean or Afro-Caribbean ethnic origin?".
62. The answer given to the question was as follows:
"As explained in paragraph 2 of the skeleton argument for the Lord Chancellor, he decided that, because of the nature of the post of Special Adviser, and the close personal relationship it involves, he would only appoint someone of whom he had long experience and in whom, on that basis, he had complete trust and confidence ("the condition"). The Lord Chancellor did not in fact consider anyone other than Garry Hart for this post, because he did not know of anyone who satisfied the condition and who was available at the time. He wrote declining the applications of those who applied, without regard to their gender or race, solely because no one satisfied the condition. If (which he did not) he had considered those people whom he knew, the pool he would have considered would have included white men and women; and men and women of African and Caribbean or Afro-Caribbean ethnic origin. The Lord Chancellor accepts that his area of association is such that, in these hypothetical circumstances, he would have considered more white men than women, and that those of African, Caribbean or Afro-Caribbean ethnic origin would have been in a very small minority. The Lord Chancellor cannot be more precise than that. For the avoidance of any doubt, however, the Lord Chancellor emphasises that he did not and does not believe that any of the persons in this hypothetical pool both satisfied the condition and were available at the material time.
63. The Tribunal therefore notes that on his own admission, the Lord Chancellor was only concerned to appoint someone from a circle of people well-known to him. We find that he thereby imposed a condition or a requirement as contended for by the Applicants, namely that the successful candidate must be personally known to the Lord Chancellor."
In this respect the decision of the Employment Tribunal is in the following terms:
"64. For the Applicants, it was submitted that a number of alternative pools were available for consideration. They included all adults; all labour party voters; political advisors, who had been appointed to local authorities; senior officers in local authorities; and the whole of local government.
65. Mr McManus submitted that the pool consisted of all those potentially eligible for the post. However, it was defined, the proportion of men in the pool who are personally known to and trusted by the Lord Chancellor as a result of long experience was going to be very small indeed. Therefore the proportion of women in the pool who could comply with the condition of being personally known to and trusted to the Lord Chancellor on the basis of long experience could not be considerably smaller. So too under the Race Relations Act: the proportion of white people in the pool who were personally known to and trusted by the Lord Chancellor as a result of long experience was going to be very small indeed. Therefore, the proportion of any ethnic minority in the pool who could comply with the condition could not be considerably smaller. Statistics concerning other Special Advisors appointed by the Government had already been found by the Chairman at an interlocutory stage to be of marginal relevance. The Lord Chancellor was not involved in or responsible for appointments made by the Ministers. Applying the principles stated by the European Court in Seymour-Smith the statistics relied upon by the Applicants were insufficient to substantiate an allegation of indirect discrimination: they do not cover enough individuals and they illustrate purely fortuitous or short-term phenomena. Mr McManus therefore submitted that the reality of the present case was that the condition applied by the Lord Chancellor excluded from consideration everyone other than the successful candidate because it was the judgement of the Lord Chancellor that only Mr Hart satisfied the condition and was available. It was entirely artificial to analyse such an appointment as having a disparate impact on women or on members of any ethnic minority.
66. The conclusion of the Tribunal is that we agree that the situation in this case is artificial, and indeed wholly unusual. We consider that the legal principles afford us a degree of latitude to meet the circumstances of this case in a straight-forward and common-sense way. Given the requirement which we have set out, we have to ask ourselves whether that requirement had a disproportionate impact as between men and women. Given the answer by the Lord Chancellor to the question posed by the Tribunal, the answer is clearly that it did. The basis of comparison, the pool, is those people who were eligible for the position given the criteria set out in the letter of 21 August which were being applied by the Lord Chancellor to justify his appointment of Mr Hart."
"We have been told that section 1(1) has not before been considered by this court with reference to the concept of the pool. The language of the section has been set out above. In order to compare the proportion of women who can comply with the requirement with the proportion of men who can comply with it, it is necessary to determine the relevant total. In my judgment, the relevant total is the number of men and women referred to in the subsection, i.e., those men and women to whom the person in this case, the employer applies or would apply the requirement. In this case, that means all men and women graduates with the relevant experience. I do not accept that the relevant total is all men and women: the employer would have no occasion to apply the requirement to any men or women other than those who are able to comply with the requirements of the advertisement other than the requirement in question
Further, I do not accept that the relevant total is merely of those men and women who can comply with the requirement. The section refers not to the number of men and the number of women who can comply with the requirement but to the proportion of men and of women. That shows, in my judgment, that those men and those women who can comply with the requirement are to be considered as a proportion of another number, and that that number must be the relevant total of men and women to whom the requirement is or would be applied."
"the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men in the workforce able to satisfy the requirement of two years' employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. It is not sufficient to consider the number of persons affected, since that depends on the number of working people in the member state as a whole as well as the percentages of men and women employed in that state."
I do not agree and reject Sir Sidney's argument that the Employment Tribunal conclusion is perverse. The Lord Chancellor through a natural thought process must have had in mind additional criteria to that of a person known to him otherwise he could have appointed anyone that he knew personally, therefore this could not have been his only criteria. This is shown in his own submission and in his letter to the Prime Minister of 21 August where the Lord Chancellor mentioned, for example, an ability to assess situations, experience of the law and commitment to New Labour. He went through a process, however unconsciously, to select Gary Hart. See paragraph 13 of the Employment Tribunal decision.
Given the lack of evidence that explained precisely the additional criteria it was not possible for Coker to come up with statistical data in relation to the pool for comparison but we know that the Lord Chancellor's pool was skewed in relation to both sex and race on his own admission. See paragraphs 62, 65 and 66 of the Employment Tribunal decision and the statistics produced by Coker. It cannot be assessed with any certainty what the additional criteria were and therefore the Employment Tribunal was entitled to make a finding of fact that there was Disproportionate Impact on Coker and Osamor. The Lord Chancellor's pool comprised people known to him and met the other criteria that he unconsciously applied in the process of selecting Gary Hart. The pool for comparison therefore is people who satisfied the additional criteria whether known to the Lord Chancellor or not. The Employment Tribunal was entitled to reach the conclusion, from the available evidence, that there was Disproportionate Impact on grounds of both sex and race.
In this respect the tribunal's findings are as follows:
"67. It is clear to the Tribunal that to be appointed to the position would be a significant career enhancement and would bring a large measure of personal satisfaction to the job holder. Being deprived of those advantages is the true measure of the discriminatory effect of the condition as we have identified it.
68. Applying the Hampson test, we then go on to consider the reasonable needs of the party who applies the condition. The contention, as we have already set out, is that the Lord Chancellor was only prepared to consider appointing someone whom he knew very well indeed. He took the view that such was the only possible basis for the trust and confidence which he would need to repose in an Adviser. The Tribunal does not accept that that was a reasonable need on the part of the Lord Chancellor. We do not accept that it is justifiable to appoint someone you know where the reasonable need is to appoint a person on merit and it must be apparent that appointment on the basis of personal knowledge will result in a consideration of men rather than women.
69. Amongst the fifteen hundred pages of documents put before the Tribunal, there were all the documentary procedures relied upon by the Lord Chancellor's department for recruitment. They represent, in the view of the Tribunal, the best possible practice designed to ensure that open and fair recruitment results in the appointment of people to positions solely on merit, and the persons of the highest merit being appointed. It was clear to the Tribunal that the more the Department demonstrated the benefits of its procedures, the more it put into sharp relief the inadequacies of the Lord Chancellor's personal way of proceeding in respect of the appointment under scrutiny. We accept the Respondent's evidence that the Lord Chancellor has expressed support for equal opportunity policies and practices. In the absence of his testimony, we have not been able to equate or value that support in the context of Mr Hart's appointment.
70. The Respondents rely upon the long practice of appointment of Special Advisors and the Orders in Council as part of their case of justification. For the avoidance of doubt, we state our express finding that the Lord Chancellor was clearly advised that he could properly appoint Mr Hart in the way in which he did so, and he did follow that advice. That is clear from the correspondence.
71. The Tribunal must, however, consider the justification relied upon objectively.
72. We do not accept that long practice is a justification in itself. Indeed, we tend to the opposite view. It is clear that the practice concerned arose long before the discrimination legislation was enacted. It therefore carried with it the risk that it would not comply with discrimination legislation. There is no evidence before us that anyone has taken seriously the possibility that the appointment of Special Advisors might be discriminatory.
73. It is furthermore not a justification that a practice is enshrined in legislative form. That has been clearly demonstrated by the challenge to the two years' qualification in the Seymour-Smith litigation; and it is also true of the challenge to the long-standing legislative provision that enabled pregnant service women to be compulsorily discharged from the Armed Forces.
74. The Applicants relied upon the evidence of Dr Parkin as an expert that analogous posts in local government are recruited for in the 'normal' i.e. open manner of public invitation for applications, although carrying the same need for a very high level of trust and confidence in politically sensitive areas of activity. We regret to say that we were not convinced of the reliability of her "statistical" evidence. However, we accept as an obvious truth that in many areas of employment, relationships are successfully created between strangers by such 'normal' recruitment procedures, who are then bound together in very close relations of confidence and interdependence. We also accept as obvious another part of her evidence that "word of mouth" recruitment tends to perpetuate discriminatory situations and is therefore undesirable.
75. The Tribunal is of the opinion that a Minister relying upon the Order in Council should take account of the imbalance of gender or race in the circles in which he is minded to find someone for an appointment. We do not say that all such posts should be subject to Civil Service recruitment standards, only that the particular Minister should ensure that his selection is free from discrimination. In that sense, we adopt the argument which was put forward by Ms Monaghan to meet the contention by Mr McManus that to find in favour of the Applicants would be to out-law the head hunting method of recruitment."
"The answer given by the Court of Justice [1999] 2 AC 554, 599 to the fifth question referred to the court by this House has now shown that this test [Hampson our interpolation] was too stringent. The burden placed on the government in this type of case is not as heavy a previously thought. Governments must be able to govern. They adopt general policies, and implement measures to carry out their policies. Governments must be able to take into account a wide range of social, economic and political factors. The Court of Justice has recognised these practical considerations. If their aim is legitimate, governments have a discretion when choosing the method to achieve their aim. National courts, acting with hindsight, are not to impose an impracticable burden on governments which are proceedings with good faith. Generalised assumptions, lacking any factual foundation, are not good enough. But governments are to be afforded a broad measure of discretion. The onus is on the member state to show (1) that the allegedly discriminatory rule reflects a legitimate aim of its social policy, (2) that this aim is unrelated to any discrimination based on sex, and (3) that the member state could reasonably consider that the means chosen were suitable for attaining that aim."
In this context the phrase "Member State" should be read as the Lord Chancellor.
In this respect the decision of the Employment Tribunal is in the following terms:
"76.In determining whether the requirement was to the detriment of each Applicant because she could not comply with it, we conclude that since each Applicant was not known to the Lord Chancellor, she could not comply with that requirement. In determining whether in each case that was a state of facts which was to her detriment, we must look to the criteria which the Lord Chancellor was applying in deciding who to appoint. We know the criteria which he set out in his letter to the Prime Minister, as the matters which persuaded him that Mr Hart was someone he wished to appoint. We have suffered the disadvantage evidentially that although the Lord Chancellor referred to people who had approached him for the same position, and whom he had refused, he has not been able to specify who they were. In answer to requests for information in the interlocutory stages, he has stated that he could not remember who they were. Although he has stated that he wrote to them, no copies of any such correspondence have been put before the Tribunal. Therefore we do not know what criteria he applied in practice.
77. Ms Coker is a lawyer with twenty years' experience. She is well-known. She has experience of legal aid matters, community matters, immigration law, and law centre and legal policy matters. She has run her own firm of solicitors for some years. She has broad experience. She has been short-listed and interviewed for an Assistant Recordership, which may well show that she is regarded as having a degree of judgement. She is committed to New Labour. In the course of cross-examination, she accepted that the role of the Special Adviser was presentational, and that it would therefore involve presenting the Lord Chancellor's policies to others. She was, we find, willing and able to take on such a role.
78. Ms Osamor stands in a very different position to that of Ms Coker. She is an adviser (but not a lawyer) in a law centre. Over the years she has been much more politically active than Ms Coker. She has been a Councillor and a candidate for Parliament. She has been described as a Black Activist. It is perfectly clear from her evidence that she does not have a commitment to New Labour, and would be unwilling to accept any presentational role on behalf of the Lord Chancellor. Her interest in fulfilling the role of Special Adviser would be to persuade him to her own point of view. It was clear from her testimony that she could not see beyond that point.
79. Applying the principles which we set out in respect of the legal meaning of "detriment", earlier in these reasons, it is perfectly clear to us that Ms Osamor was not remotely appointable to the position of Special Adviser to the Lord Chancellor. She did not meet fundamental requirements of it.
80. We take a different view as to Ms Coker. We do not say that the Lord Chancellor would have wished to appoint her. We simply find that she suffered a detriment in being deprived of the opportunity of applying for the position. She could properly have done so with some prospect that her application would receive consideration on its merits.
81. It follows that we find that in the case of Ms Coker, all the elements of liability on the basis of indirect discrimination on the grounds of sex are present, and her complaint on that basis is well-founded.
82. It follows form our findings that we would also find her case established on the basis of breach of the Equal Treatment Directive, although we do not consider that it adds anything to the finding under the Sex Discrimination Act.
83. Given that the requirement to show detriment is applicable under the Race Relations Act as well as under the Sex Discrimination Act, it follows from our findings that both of those complaints by Ms Osamor must be dismissed."
As we recognise in paragraph 5 there was a vacancy. On the evidence Coker but not Osamor met the criteria except for the discriminatory condition of being known personally to the Lord Chancellor. Therefore Coker sufferred a detriment because she was denied the opportunity to apply for the post and thereby lost the opportunity to be considered for the post.
In this respect the decision of the Employment Tribunal is in the following terms:
"84.The case for the Applicants was set out by Ms Monaghan in her written submissions. We seek to summarise it and to explain where we disagree with it. It refers to Ms Osamor but is applicable to both Applicants.
(1) She contended that there was a difference of treatment between Mr Hart and Ms Osamor because he was approached and offered a job and she was not. We find that unrealistic. No relevant difference in treatment arises. The offer to Mr Hart was unique.
(2) She contended that the alleged difference in treatment was accompanied by a difference in race and gender, and explanations were called for; and the explanations put forward were unsupported by evidence or not credible. We have set out our findings that the contemporaneous documents refer to the reasons for the choice of Mr Hart, related to the Lord Chancellor's personal knowledge of his abilities. Therefore they show a non-discriminatory explanation.
(3) She contended that there was a failure to answer questionnaires. That is true, but it is offset by a very substantial disclosure of information in other forms, e.g. discovery of correspondence.
(4) She contended that there was a failure to abide by the Codes of Practice. That is true, and we have noted its significance for the issue of justification in respect of the indirect discrimination complaint. But in the present context, it would be unjust to draw an inference because it is clear that the Lord Chancellor understood that he was acting outside normal procedures: he was so advised.
(5) Other contentions were directed at the Lord Chancellor's "world" predominantly male and white. That broad characterisation is borne out by his written answer to the Tribunal's Rule 4 question. In our view, it does not constitute a gender based or racially based criterion. It is a consequence of a neutral criterion (someone I know) that it is more likely to be a white male than not.
85. We do not accept that the relevant statutory provisions of either the Sex Discrimination Act or the Race Relations Act can be applied to the circumstances of this case as a basis for a finding of direct discrimination. It would be completely unrealistic in our judgement to conclude that the Lord Chancellor treated either Ms Coker or Ms Osamor less favourably on the grounds of sex or race than Mr Hart where it is perfectly clear that he neither knew them nor knew of them and indeed was not contemplating any sort of choice or comparison of any kind at the time he decided that he wanted to appoint Mr Hart. We accept that his choice of Mr Hart was a purely personal one, concerned exclusively with the qualities of Mr Hart with which he was acquainted. We do not accept the submission for the Applicants that the statutory provisions apply to such a situation. We have accepted that this is a set of circumstances to which the law relating to indirect discrimination applies and our view is that the intention of Parliament in the purpose of the legislation was to provide for such a situation in the way in which we have set it out."