United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NIGEL HANSON (Representative)
For the Respondents	MR J MASON (of Counsel) Instructed by: Football Association 25 Soho Square London W1D 4FA

SUMMARY

Race Discrimination

Section 12 Race Relations Act 1976. Definition of qualifying body and profession of vocation. Did it apply to amateur footballer and local football league authorities?


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from the decision of an Employment Tribunal held in January 2004 who, in a unanimous decision sent to the parties on 2 February 2004, held that the Appellant's complaints of race discrimination under section 12 of the Race Relations Act 1976 failed on a preliminary jurisdictional point and were dismissed.
2. The Appellant is a keen amateur footballer and at the relevant time he joined Tibberton United Football Club. That team is a member of the first Respondent's football league which consists of 31 football clubs divided into two divisions. A player such as the Appellant has to register with the league and does so through the Club Secretary. A condition of registration is that a player should only belong to one club within the league although there is no restriction on a football player belonging to different leagues. None of these clubs within this league have any semi-professional or otherwise paid players, although the league has been described as a feeder league for the West Midlands league which is a larger league with some semi-professional players.
3. The first Respondents are responsible for the discipline and governance of the game, but this is achieved through the rules and standards of the second Respondent who are the County Football Association, which acts under the authority of the Football Association which in turn is linked to the International Football Association FIFA. Thus there is a pyramid structure so that if a player is banned from playing by the local football association that ban would take effect both nationally and even internationally.
4. On 23 February 2002 the Appellant attended a Tibberton game, not as a player but as a spectator. Shortly after the final whistle he conducted himself in such a way that the referee reported him to the second Respondents for a breach of its Rules of Conduct. He was charged with 4 allegations of misconduct and an interim suspension was imposed immediately. A disciplinary hearing took place on 14 March when two allegations were proved and he was suspended from football for a total of 35 days which prevented him playing any form of competitive football in this country. That suspension was due to end on 5 April.
5. As stated above, the first Respondents have their own disciplinary powers and under Rule 8 (G) (2) of the first Respondent's rule handbook:

"The Management Committee shall have power to refuse or cancel the registration of any player found guilty of undesirable conduct and to disqualify the player in question from participation in all games in the League. (Subject to Rule 15)."

Rules 15 and 16 make provision for appeals against such a decision.

6. Accordingly the Management Committee of the first Respondent resolved to suspend the registration of the Appellant from the date when his suspension ended on 5 April until the end of the season in May 2002. The effect of this suspension would be simply to prevent him from playing for any team within the first Respondent's league, but no wider than that. For example, he could play for any of the other 8 leagues under the umbrella of the Shropshire Football Association. There was a right of appeal against the first Respondent's decision to the second Respondent, but on 25 April they upheld that decision.
7. The Appellant wished to re-register for the new season but because of the previous misconduct he was summoned before the league before a hearing prior to being re-registered. However, in the meantime he had consulted Telford Race Equality Council who on his behalf had served race relation questionnaires on both Respondents during June and July 2002. As a result the hearing fixed by the league for his new registration to be considered, which was due to take place on 7 August 2002, was cancelled, the league considering that whilst there were outstanding discrimination complaints they should avoid further contact with the Appellant and preserve the status quo.
8. The Appellant has no complaint against the original disciplinary suspension imposed by the second Respondent but complains of the second suspension by the first Respondent from 5 April onwards, the refusal of the appeal by the second Respondent on 25 April and the refusal by the first Respondent to renew his registration at the beginning of the next season and in particular the cancellation of the meeting fixed for 7 August.
9. The Appellant brought his claim for discrimination under section 12 of the Race Relations Act 1976. That section falls within Part II of the Act, which deals with discrimination in the employment field and particularly those matters which fall under the jurisdiction of the Employment Tribunals. Section 12 provides:

"12. (1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person-

(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or

(b) by refusing, or deliberately omitting to grant, his application for it; or

(c) by withdrawing it from him or varying the terms on which he holds it.

…

(2) In this section-

(a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification;

(b) "confer" includes renew or extend."

Section 78 provides a definition for the term "profession" as "including any vocation or occupation".

10. The Tribunal determined that section 12 did not apply, firstly because the Appellant as an amateur footballer was not engaged in a particular profession, vocation or occupation and, secondly, because neither the first or second Respondents were a qualifying body for the purposes of section 12, namely they were not an authority which could confer authorisation or qualification which was needed to facilitate engagement in a particular profession, occupation or vocation.
11. The Tribunal determined that the first Respondent's powers were limited to the registration and supervision of players within the first Respondent's league and they possessed no wide or general qualification or authorisation powers, neither did they consider that the second Respondent possessed such powers.
12. Before us Mr Hanson on behalf of the Appellant argues that the playing of competitive amateur football as in this case which could possibly lead to semi-professional/professional status is indeed a vocation within the meaning of section 12. He also argues that both Respondents are qualifying bodies since they have powers of registration and under section 12 (2) "registration" falls within the definition of authorisation or qualification. He argues that anyone who wanted to play competitive football in a club which was part of a league in Shropshire had to be registered with that league and through the County Football Association with the National Football Association, and that was a gateway to the profession. He argues that both the first and second Respondents had power to register players, to cancel or suspend their registration or not to renew it. Without such registration the Appellant could not follow his profession or vocation, i.e. could not play competitive football. Thus it could be said that each of the Respondents had the right to authorise a player to pursue his/her profession or vocation.
13. Mr Hanson referred us firstly to British Judo Association v Petty [1981] IRLR 484. In that case Mrs Petty was employed as a judo instructor and had also obtained a certificate from the British Judo Association as a qualified referee. Although in judo men fight men and women fight women, Mrs Petty's certificate did not on the face of it differentiate between refereeing men's competitions and women's competitions. In 1977 she refereed the All-England Men's Competition, but after this event she was told that the Association had instituted a policy not to allow women to referee men's competitions. She complained that this prohibition amounted to discrimination in relation to a qualification – the National Referee Certificate – which facilitated her engagement in her occupation as a paid instructor in judo and that consequently the association had contravened section 13 of the Sex Discrimination Act 1975 which a provision in that Act similar to section 12 of the Race Relations Act 1976.
14. The Industrial Tribunal upheld her claim finding that the Association was an authority or body conferring an authorisation or qualification and that the National Referee Certificate did facilitate her engagement as a coach. The EAT, Brown-Wilkinson J presiding, dismissed the appeal holding that the Tribunal had correctly concluded that in not permitting Mrs Petty to referee men's judo competitions the Association had unlawfully discriminated against her contrary to section 13 of the Sex Discrimination Act 1975 in relation to a qualification they conferred the National Referee Certificate which facilitates her engagement in her occupation as a paid instructor in judo and that section 13 covered all cases where the qualification in fact facilitates the woman's employment, whether or not it was intended by the authority or body which conferred the authorisation or qualification, so to do.
15. We note two issues arising from that case. Firstly, that there was no dispute that the British Judo Association was the regulatory body to provide qualification for coaches or instructors who were paid and for referees who were not remunerated. Secondly, Mrs Petty did not claim that the Association was discriminating against her by not engaging her to act as a referee at men's national competitions, since, as was stated at paragraph 5 of the judgment:

"The view has been taken that she has no claim under section 6 of the Act since she would not be employed as a referee."

Her claim was that she had been discriminated against in relation to a qualification, i.e. the National Referee Certificate, which facilitates her engagement which facilitates her engagement in her occupation as a paid instructor in judo.

16. In Hardwick v The Football Association, heard by the EAT on 30 April 1999, Ms Hardwick wished to obtain an Advanced Coaching Licence from the Football Association which would enable her to coach teams at the highest level, since she only held an intermediate coaching certificate. Her claim for discrimination under section 13 related to her failure at a coach's course giving rise to a successful complaint that she had been unlawfully discriminated against on the grounds of her sex. Again the issues whether or not there was a qualifying body and the nature of the particular profession were considered by the EAT.
17. For the Respondents Mr Mason argues that neither Respondent falls within the description of qualifying bodies since they do not have the ability to confer qualification or status on the Appellant which would enable him to call himself a practising footballer. He contends that an amateur footballer, albeit playing in a competitive league, cannot be said to be part of a profession or vocation.
18. In Partridge v Mallandaine [1886] Queens Bench Division Vol. XVIII, Denman J said thus:

"…the word "vocation" is analogous to "calling", a word of wide signification, meaning the way in which a man passes his life."

Mr Mason submits that this definition would not apply to a recreational amateur footballer.

19. He also argues that both Respondents are not qualifying bodies to which the section is intended to apply, their activities being for very limited football purposes: in the case of the first Respondent, the organisation of their own leagues; and in the case of the second Respondent, the organisation and discipline of all the leagues under their control.
20. In Triesman v Ali [2002] IRLR 489 the National Executive Committee of the Labour Party had suspended a Mr Ali and Mr Sohal from office within or representation of the Labour Party pending the final outcome of a disciplinary investigation into alleged breaches of Labour Party rules. As a result of their suspension neither Mr Ali nor Mr Sohal could be nominated as a candidate and they contended that they had been treated less favourably on the grounds of their race and brought a claim under section 12 of the Race Relations Act 1976 against officers of the Labour Party.
21. The Court of Appeal held that both the Employment Tribunal and the EAT erred in holding that the Labour Party in selecting a candidate for local government elections or allowing a person to be nominated to the pool from which perspective parliamentary candidates had to be selected is a "body which can confer an authorisation or qualification which is needed for or facilitates engagement in a particular profession" within the meaning of section 12 of the Race Relations Act 1976. Even if being a Labour Councillor was considered as being engaged in a profession for the purposes of section 12, the Court of Appeal held that the labour party in selecting a candidate or accepting a nomination for such candidacy was not conferring an authorisation or qualification such as within the contemplation of the section. They held that the Labour Party were not the type of qualifying body to which the section was intended to apply, its activities being for its own political purposes, there being no conferment of approval by the Party when a member who has been nominated as a Local Government candidate has his name go forward to the pool available for selection. No status in any meaningful sense was thereby conferred and it was wholly artificial to treat section 12 as applying to such a case.
22. Peter Gibson LJ giving the judgment of the Court set out the position thus:

28. Section 12

It is convenient to start with the question of the applicability of s.12. At first sight, this is an unlikely candidate for application to the suspension by a political party of a member wanting to be selected as a party candidate for local government elections. That has nothing to do with employment and, while s.12 is in a portion of Part II which covers discrimination in particular circumstances extending beyond employment, it is far from obvious that it was intended to cover a circumstance which does not appear to relate to the employment field even in a wide or loose sense. The obvious application of the section is to cases where a body has among its functions that of granting some qualification to, or authorising, a person who has satisfied appropriate standards of competence, to practise a profession, calling or trade. There are many such bodies, for example, in the medical field.

29 However, the respondents rely on the width of the language in s.12 as extended by the interpretation provisions of s.12(2) and s.78(1). Thus they say that (1) the Labour Party is a body, (2) which can confer an approval (and hence 'an authorisation or qualification') on a member seeking selection as a Labour Party candidate, (3) that approval being needed for or facilitating (a word of wide scope) (4) engagement in a particular profession or occupation (viz. that of a Labour Party councillor) and so engagement in a profession. That is the argument which was accepted by the tribunal and the EAT.

30 In our judgment, so to construe the section runs counter to the approach laid down by this court in Tattari v PPP Ltd [1997] IRLR 586. In that case a doctor with Greek qualifications and an EEC certificate in plastic and reconstructive surgery granted at Athens University was not recognised as a specialist by the defendant, PPP Ltd (an insurance company specialising in medical insurance), which required the specialists on its lists to have held a substantive NHS consultant post or a certificate of higher specialist training given by the Royal College of Surgeons. The doctor argued that the defendant was a body which was capable of conferring recognition or approval (and hence 'an authorisation or qualification') which would facilitate the doctor's engagement in her profession because it would give her access to a significant number of patients in the private medical field of reconstructive plastic surgery. This court rejected that argument. Beldam LJ, with whom Roch LJ and Sir John Balcombe agreed, said at p.588:

'In my judgment PPP is not an authority or body within the meaning of s.12 of the Act. I consider that the section has to be read as a whole and not construed piecemeal. The kind of bodies referred to are those similar to authorities which are empowered to grant qualifications or recognition for the purpose of practising a profession, calling, trade or activity ...'

After referring to the Medical Act 1983, Beldam LJ said that a European Directive and Order showed 'the same indications that in relation to the practice of medicine the recognition, registration or facilitation of practice is granted by bodies authorised in the public interest to ensure an appropriate standard of qualification'. Beldam LJ continued:

'Thus I consider that s.12, referring as it does to an authority or body which confers recognition or approval; refers to a body which has the power or authority to confer on a person a professional qualification or other approval needed to enable him to practise a profession, exercise a calling or take part in some other activity. It does not refer to a body which is not authorised to or empowered to confer such qualification or permission but which stipulates that for the purpose of its commercial agreements a particular qualification is required.'

…

33. In the present case, adopting the approach of the court in Tattari and construing s.12 as a whole, we are unable to agree with the EAT in Sawyer or the EAT in the present case that the Labour Party in selecting a candidate for local government elections or allowing a person to be nominated to the pool from which prospective candidates are to be selected is a body which can confer an authorisation or qualification which is needed for or facilitates engagement in a particular profession. We own to having doubts as to whether being a local government councillor is being engaged in a profession or occupation within the meaning of the section, still more so lithe profession or occupation limited to being a Labour Party councillor. To our minds it is certainly not being engaged in a profession and, while being a councillor occupies some of the time of the councillor who is entitled to receive allowances, it is not an activity from which the councillor will earn his living or receive a salary, and we question whether it is within the intendment of the section.

…

35. But even if being a Labour councillor is being engaged in a profession for the purposes of 5.12, we cannot see that the Labour Party in selecting a candidate or accepting a nomination for such candidacy is conferring an authorisation or qualification such as is within the contemplation of .the section. It is not the type of qualifying body to which the section is intended to apply, its activities being for its own political purposes just as PPP's activities were for its commercial purposes. In the present case, we cannot accept that there is any conferment of approval by the Labour Party when a member who has nominated himself or been nominated as a local government candidate has his name go forward to the pool available for selection. No status in any meaningful sense is thereby conferred. We have to say that it seems to us wholly artificial to treat 5.12 as applying to such a case."

23. The Triesman case is to be contrasted with the most recent authority of Patterson v Legal Services Commission [2004] IRLR 153 where the Court of Appeal upheld the decision of the EAT that the award of a franchise by the Legal Services Commission and the award of a Legal Aid Franchise Quality Assurance Standard was an "authorisational qualification within section 12 of the Act". Clark LJ having referred to the Tattari and Triesman cases said this:

"71 The Commission is a very different type of body from either PPP or the Labour Party. It is a public body charged with public functions as set out in s.4 of the 1999 Act quoted in paragraph 3 above. It is charged with maintaining and developing the Community Legal Service and had an express power in s.4(8) to accredit persons or bodies providing legal services at public expense. It is neither a commercial company like PPP nor a political party like the Labour Party.

72. Moreover, when it grants a franchise to a solicitor on the ground that LAFQAS has been satisfied and thus enables a franchisee to display the logo, it seems to us to grant an authorisation to do so. Further, since the grant of the franchise is an essential pre-condition to the making of a three-year contract it can in our opinion again fairly be said to be conferring on the franchisee an authorisation to perform publicly funded legal services for its clients.

…

75. The question then arises whether the franchise, in the words of the statute, 'is needed for, or facilitates, engagement in' the profession of solicitor. It is to be noted that the expressions 'is needed for' and 'facilitates' are disjunctive. It is thus sufficient if the authorisation 'facilitates engagement in' the profession. In our opinion it does. To facilitate is to make easier or less difficult. Engagement in a profession includes carrying on the profession. In British Judo Association v Petty [1981] IRLR 484, Browne-Wilkinson P, giving the judgment of the EAT, said at p.486, with regard to the similar provision in s.13 of the Sex Discrimination Act 1975, that the section covers all cases where the qualification in fact facilitates the woman's employment. As we see it, the franchise here in fact facilitates the carrying on of the profession of solicitor because it makes the carrying on the profession by the franchisee easier. Given the importance of publicly funded work in some areas, it makes it much easier. Indeed, there is evidence that without a franchise Patterson & Sebastian would have had to close.

76 That conclusion seems to us to be consistent with the authorities to which we have referred. The grant of a franchise is a form of recognition 'for the purposes of practising a profession', as Beldam LJ put it in Tattari. Moreover it seems to us that the Commission is the type of body to which the section is intended to apply and which the court had in mind in Ali. The conclusion we have reached satisfies the criteria suggested in Bone because (a) the franchise confers some sort of status on the applicant solicitor in relation to his work, (b) the status relates only to work as a solicitor and (c) it makes the carrying on of that work more advantageous. On the facts of Bone the court distinguished between the registration of a self-employed builder with the National House Building Council, which (as we read the judgment) was thought to be within the similar section in Northern Ireland, and planning permission obtained by a builder, which was held to be outside it."

24. Applying these authorities, we are in no doubt that the circumstances of this case fall within the Triesman category. Firstly, the circumstances of this case do not appear to relate to the employment field, even in the wider sense. Neither the first or second Respondents are a body that has amongst its functions that of granting some qualification or authorisation to a person who has satisfied appropriate standards of competence to practice a profession, calling or trade. In no sense can an amateur footballer be considered in our view as falling within any of those three categories.
25. Both the first and second Respondents have limited powers of organisation and discipline which in no sense can be said to affect the Appellant's overall status as a footballer, even if it could be considered as a vocation. The activities of the Respondents in this case can be compared to the limited activities of the Labour Party or PPP in the Triesman and Tattari cases and accordingly we agree with the view of the Tribunal that the Appellant did not have the jurisdiction to bring a claim under section 12 of the Race Relations Act 1976.
26. The Appellant may well be left with a civil remedy under Part III of the Act and in particular section 25, but that would be a matter for the County Court to determine. Accordingly this appeal is dismissed.