United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS S H Lane (the Appellant in Person)
For the Respondent	MISS E BANTON (of Counsel) Instructed by: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF

SUMMARY

Race Discrimination

An employer, who applies a selection criterion to an employee seeking promotion in circumstances where he does not know that it is indirectly discriminatory on grounds of race, and does not intend to discriminate on racial grounds when applying it, has a defence under section 32(3) of the Race Relations Act 1976.


 


HIS HONOUR JUDGE D SEROTA QC

1. This is the full hearing of an appeal by the Appellant Mrs Suriyakumari Hiranyamali Lane against a decision of the Employment Tribunal in London chaired by Mr T Ryan that was entered on the register on 22 August 2003. The appeal is limited to an appeal against the Decision not to award the Applicant compensation for indirect discrimination on the grounds of her race; other grounds have been abandoned.
2. As we have said the decision was promulgated on the 22 August and we note that the hearing lasted some 14 or 15 days together with three days in Chambers. The Employment Tribunal dismissed complaints by Mrs Lane, that she had been discriminated against directly on grounds of race and victimised. It upheld her complaint that the University had indirectly discriminated against her on the grounds of race. The ET then went on to recommend with the consent of the parties, various matters that needed to be attended to by the University. At a later hearing before the Employment Tribunal it declared itself satisfied that its recommendations had been complied with.
3. The factual background to this matter is as follows. Mrs Lane is of Sri Lankan ethnicity. She has been an academic lawyer for well over 30 years and has been with the University (as we shall call it) or its predecessors for over 20 years. She started as a Lecturer, worked her way up to Lecturer grade 2 and then became a Principal Lecturer. The University is, in its present name, an amalgamation of a number of universities including London Guildhall University at which Mrs Lane was Lecturer at the time of amalgamation. There is a relatively substantial Law department. We are told that its budget is in excess of £2,000,000. The Employment Tribunal referred to its budget as being many millions.
4. The department was the subject of a critical departmental review in June 1999. It is to be noted that management of budget was not one of the areas that was the subject of criticism, but clearly other aspects, including, one assumes, other management functions, had been the subject of criticism. Mrs Connie Ostmann was appointed as Acting Head of the Department of Law from 1 August 1999. She has no legal qualifications or experience but was regarded as being an accomplished academic administrator. So far as we have seen the Employment Tribunal was satisfied that the Applicant was supportive of the appointment of Mrs Ostmann as the Acting Head of the Department of Law at the time she was first appointed.
5. In February 2000 Mrs Lane was appointed as a Principal Lecturer plus and also Associate Head of Law. She wanted to be considered for the position of Deputy Head of the department of law but in February Mrs Ostmann appointed a Mr McLeod to the post. A suggestion was made by Mrs Lane, although it is not relevant to these proceedings, that his appointment was an act of discrimination against her on the grounds of race. It was obvious that a new Head of the Department of Law would have to be found. In preparation for this a number of discussions took place about the appropriate job description and it is quite clear that there was a difference of opinion as to this, certainly so far as concerned Mrs Lane and other members of the faculty who were consulted, including in particular a Professor Hopkin.
6. Professor Hopkin and other members of the faculty were of the very firm view that Applicants should not be restricted to persons with legal qualifications or experienced lawyers but that competition should be open to academic managers with a wide range of skills. Mrs Lane is certainly on record as saying that the post should be restricted to an academic lawyer or at least someone with legal skills. She clearly felt, and indeed said at that time, that in her opinion the decision not to make it a sine qua non of the relevant criteria that the Applicant should have a legal background, was an attempt to tailor the requirements, so that to put it in the vernacular, Mrs Ostmann could be "shoed in".
7. In May 2000 the post was advertised. It was advertised in the national press. Professor Hopkin had drawn up a list of criteria. None of those criteria, so far as we can see, were said to be essential and one of those criteria to which we need now make specific reference was that an applicant should have a demonstrable ability to manage financial resources and have a proven track record "as a cost centre management". This is surprisingly ungrammatical for a University application form for an academic post but the meaning is quite clear. We have not seen the advertisement but it is right to say that the advertisement almost certainly would have made it clear that the University's equal opportunities policy applied, and we assume that it did. It is also clear that no complaint was made at any stage by any candidate within or without the University or by any member of the academic staff, that the criterion in question, in so far as it required a proven track record, was in fact discriminatory.
8. Jumping ahead, it was later said by the Applicant, and found by the Employment Tribunal, after a concession had been made during the course of the proceedings by the University, that the criterion that an Applicant should show a proven track record in financial management was indirectly discriminatory of Asian academic lawyers. This was because there were relatively few Asian academic lawyers who had risen to a level that enabled them to say they had a proven track record of financial management. It was, therefore, conceded that this requirement had a detrimental effect, and one that disproportionately fell on Asian academic lawyers. Mrs Lane was not in fact short listed. It is right to say that of the three people responsible for short listing, Professor Morgan, and Mrs Martin, the Assistant Head of Human Resources, placed considerable weight on the fact that Mrs Lane lacked a proven track record in financial management. Professor Floud the provost of the University was less sure about this. He was originally willing to short list Mrs Lane but was persuaded by his colleagues it was inappropriate to do so.
9. The Applicant was told she was not being short listed and in the event she learned in October that Mrs Ostmann had been appointed. She maintained that the failure to short list her amounted to victimisation; it was a response she claimed to the fact that as she had given evidence for a colleague, a Dr Majid, in a Tribunal in which he had made allegations against the University of discrimination.
10. The procedural history of this matter perhaps needs to be referred to. The Employment Tribunal described it as somewhat "complex". The Originating Application was, I believe, presented on 7 January 2001 and the original IT3 on 15 February. On 3 May there was a further Originating Application with additional particulars. The matter came for a preliminary hearing, I believe, on 8 June 2001 for some case management purpose. It is clear that on that occasion various directions were made; the complaint made by Mrs Lane that she had been discriminated against indirectly on the grounds of race was dismissed. There was no appeal nor was there any application to review at that stage.
11. The hearing began on 4 February. We do not know exactly how far the case had progressed, when the question of the claim of indirect discrimination was raised by the Tribunal. It is apparent, however, that Mrs Martin and Professor Morgan had given evidence This occurred on 8 February. The Tribunal was concerned as to whether this claim should have been dismissed. Mrs Lane said she would seek a review out of time. The Regional Chairman ordered that this should happen. The review was heard by a differently constituted Tribunal which revoked the order dismissing the claim. One had this curious situation, therefore, in that during the course of the hearing a claim that was thought to have been disposed of was resurrected after a number of witnesses had already given their evidence. They were not recalled.
12. The hearing extended from February 2002 until February 2003 which seems to us, we feel bound to say, to be unfortunate and must have caused considerable difficulties for all concerned. We also note with regret the delay between the conclusion of the hearing on 17^th February and the Extended Reasons being issued to the parties on 22^nd August 2003. The decision was we believe announced on February 18^th. Be that as it may, the case continued and on 7 March 2003 the University conceded that the criterion we have referred to, relating to financial management, was indirectly discriminatory of Asian academic lawyers. The University, however, contended that such indirect discrimination was justified, unintentional and caused no hardship.
13. As we have said the Tribunal gave its decision on 18 February when it held a remedies hearing which led to certain recommendations being made. A point was at one time raised by Mrs Lane in her original Notice of Appeal, which is omitted in her subsequent Notice of Appeal, that she was not permitted to make submissions on the issue that has concerned us under section 57 of the Race Relations Act 1976 before the Employment Tribunal. It is apparent, however, that she sent written submissions to the Tribunal at the beginning of January 2003 and those submissions contained the points that she sought to put to us today. We do not have to deal with this point as it was not in her grounds of appeal, but as it was raised before us, we mention it.
14. On 4 September having received the Extended Reasons of the Employment Tribunal, Mrs Lane sought a review and most of the points that she has raised before us in her amended Notice of Appeal were the subject matter of her application for review. On 15 September a review was refused by the Chairman who considered it had no reasonable chance of success and that the points she raised were better addressed to the EAT. On 1 October she served a Notice of Appeal. On 17 October the Employment Tribunal concluded that the University had fully complied with the recommendations it had made on the indirect discrimination claim. On 23 October 2003 the matter was ordered by His Honour Judge Richardson to go to a preliminary hearing and on 23 January 2004, His Honour Judge Ansell at a preliminary hearing ordered the matter to go for a full hearing but with an amended Notice of Appeal.
15. On 22 January 2004 Mrs Lane had the benefit of the assistance of Mr Tom Brown through the ELAAS scheme and His Honour Judge Ansell encouraged him to assist Mrs Lane to produce a somewhat slimmed down Notice of Appeal, which he did. That Notice of Appeal omitted the reference that we have referred to, that Mrs Lane had not been able to fully put forward her case on remedies. We now turn to the Decision of the Employment Tribunal.
16. The Employment Tribunal records the facts fairly fully. It records the findings that we have mentioned earlier in relation to the University soliciting the views of members of the faculty as to the appropriate selection criteria. We should note that when Mrs Lane dissented from the majority view that only an academic qualified lawyer someone with legal qualifications should be the Head of the Department, Professor Hopkin wrote saying that:

"I made it absolutely clear that this suggestion could not be countenanced by the University and that the process of consultation and the meticulous attention to equal opportunities in the person specification and the job description were designed to ensure that there was no discrimination in favour or against any particular candidate."

Professor Hopkin was concerned to rebut the suggestion made by Mrs Lane that the omission of a requirement for a legal background was designed to assist Mrs Ostmann.

17. The specification was noted by the Employment Tribunal to have been drawn up by Professor Hopkin and approved by the provost, Professor Floud but included the criterion as we have said, that there should be demonstrable ability to manage financial resources and have a proven track record in cost-centre management. There were of course other criteria; none of those criteria are specified as being essential. They include a sound appreciation of the professional practice of law, administrative and management experience, and ability to lead, motivate and develop staff. The Employment Tribunal then went through in detail the manner in which the short listing took place and record the comments made on the short listing forms by Professor Floud, Mrs Martin and Professor Morgan who were the short listers. We should note that all of the candidate's applications were anonymised. However, it is right to say that bearing in mind Mrs Lane was a member of the University, her curriculum vitae and application would probably, although we are not sure there is a finding about this, have enabled the selection panel to identify her, and possibly other "in house" applicants. Certainly Professor Floud was able to identify Mrs Lane.
18. Professor Floud in his assessment of candidate j, that it is the Applicant had queried her administrative and management experience. Mrs Martin noted on her form that the candidate lacked staff management experience, leadership skills and had little financial management experience and research. Professor Morgan noted that the candidate lacked appropriate experience for the post in question. They have all made similar remarks about other candidates in different categories.
19. In evidence Mrs Martin had attached weight to the criterion subsequently found to be discriminatory. She said that her priority was management of the department including the financial management, because the department had a large budget. Professor Morgan had said that the criterion and also the criteria relating to ability to lead, motivate and develop staff, were weighted in his mind, and he could not recommend anyone for interview who did not meet those criteria. Professor Floud said he looked at the criteria as a whole but he placed emphasis on management, that being a skill that was required in the Department as a result of the poor departmental review. Professor Floud said he was prepared to short list Mrs Lane in the first instance as he recognised that she was the internal candidate.
20. We interpolate at this point in time to note that Mrs Martin who was the Deputy or Assistant Head of Human Resources had not specifically been asked to vet the application form and the appointment criteria and it was suggested by Mrs Lane that had she been asked to do so, she would have noted at once that the criterion, of which complaint was later made, was indirectly discriminatory. We merely note that at no time does she ever appear to have recognised that it was indirectly discriminatory, or if she did at all, until a very late stage in the Tribunal proceedings. The Employment Tribunal then went on to say this:

"(48) In our judgment these notes, which we accepted were compiled independently by each person, and the broad correlation between them provided compelling confirmation of the Respondent's case that the short-listing exercise was not actuated by or done on racial grounds."

21. The Employment Tribunal then directed itself as to the provisions of sections 1, 2 and 4 of the Race Relations Act 1976. It also referred to section 56 and section 57(3) to which we should refer because the appeal has largely turned on this. This provides:

"57. (3) As respects an unlawful act of discrimination falling within section 1(1) (b) [and that is indirect discrimination on the grounds of race], no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds."

The Tribunal reminded itself of the well known authorities Zafar v Glasgow City Council [1998] IRLR 36, King v Great Britain - China Centre [1992] ICR 516 and Qureshi v Victoria University of Manchester [2001] ICR 863 in relation to the importance of drawing inferences in cases of alleged discrimination.

22. The Tribunal then came to a number of conclusions some of which we now need to set out. It concluded firstly, so far as the complaint of direct discrimination was concerned that there was a difference in treatment and in race between the Applicant and other short listed candidates. She was the only ethnic minority candidate, the others were all white British. Then having regard to the authorities, it looked to the University for an explanation of the difference in treatment. The explanation that was given was that the Applicant:

"did not have relevant management experience either in her post as Associate Head Department nor had she gained such experience by acting up to take on the responsibility for managing a department with a large budget and a large workforce, especially having regard to the criticisms of the Department made in the departmental review."

23. Mrs Lane had suggested that the university had so arranged the criteria for selection to enable Mrs Ostmann to apply. Nevertheless the conclusion of the Employment Tribunal was that the University demonstrated that the short-listers independently assessed management skills as being of major importance in the selection process. There was some criticism of the selection process. However, it accepted Professor Hopkin's argument that in the particular circumstances of the University the need for someone qualified in a specific department was much less crucial than one might find to be the case in one of the traditional universities where more research was undertaken and where less significance was placed on the development and management of the curriculum and teaching staff. The University's submission in this regard was accepted. The Tribunal concluded in the circumstances it was not satisfied on the balance of probabilities, taking into account all the circumstances and the tests it identified, that the reason for non-selection of Mrs Lane for interview for the post of Head of Department, was on racial grounds.
24. It then went on to reject on the facts the claim of victimisation. We say no more about this. It then went on to consider the question of indirect discrimination. As indirect discrimination was conceded the Tribunal needed to consider whether it might be justified. The Employment Tribunal was in its words "wholly unpersuaded" that it could be justified irrespective of colour, race, nationality, or ethnic or national origins of the Applicant. The Employment Tribunal concluded that the poor departmental review could not justify the imposition of financial management criteria (as we shall put it) because poor performance in financial management was not the subject of criticism in that review.
25. The University conceded that others appointed to the most senior posts had acquired financial management skills after assuming their posts. The Employment Tribunal continued:

"(9) The Applicant was a senior member of the Department. She was suitable to be considered as an Associate Head of Department. She was such a person to whom such training could have been offered had she been otherwise suitable as Head of Department. All those factors militated in the Tribunal's judgment against the Respondent's argument for saying that the criterion was justified other than on racial grounds."

There is no appeal against that particular finding. The Tribunal then went on to say this:

"(11) It was clear from the way in which the Respondent had denied indirect discrimination, only to admit the indirectly discriminatory effect at a very late stage in the proceedings, that the senior academics who gave evidence before us had not, before the commencement of these proceedings and indeed the hearing, properly appreciated the doctrine of indirect discrimination. Professor Floud very frankly admitted as much."

26. Mrs Lane submitted to us that the reference to senior academics could not include Professor Morgan because Professor Morgan had given evidence before the issue of indirect discrimination raised its head again. We do not consider that that is a justified interpretation of what the Employment Tribunal had said. It had the ability to consider the evidence of Professor Morgan, Professor Hopkin and Professor Floud all of whom gave evidence, at least in so far as direct discrimination was concerned, and Professor Floud and Professor Hopkin also at a time when indirect discrimination was an issue.
27. The Tribunal then concluded that Professor Hopkin in drafting the specification did not intend to discriminate unlawfully on racial grounds. The Tribunal then said:

"(13) For those reasons the Tribunal was not satisfied that the indirect discrimination, although unjustified, was intentional in this case."

The parties then considered what might be appropriate declarations and recommendations. These were accepted by the Employment Tribunal. They set out a number of those at paragraph 16 and the Respondent was required to set out in details the steps it had taken, to comply with the order and to serve a witness statement on the Applicant and the Tribunal. The Applicant was also entitled to serve a witness statement.

28. The recommendations included a recommendation that a training programme should be made available for all senior managers within the University to provide guidance to enable employees to understand the principles and practices of equal opportunities. Furthermore it provided that the Human Resources department should be expressly requested to vet all applications to ensure that they complied with equal opportunities principles and practices and ethnic minority employees with few management functions, including no doubt Mrs Lane should be offered the facility of having management development training, including financial management training.
29. The principal arguments that have been addressed to us were firstly that the Employment Tribunal had been wrong to find that the University had proved that the application of the criterion we have mentioned was not applied with the intention of treating the claimant unfavourably on racial grounds. We shall turn to this point shortly. Secondly it was submitted that on the facts the Employment Tribunal could not come to that conclusion as two of the three short-listers that is Professor Morgan and Mrs Martin never gave evidence to the Tribunal once the indirect discrimination claim had been revived. It is perhaps convenient to deal this matter first. It is right to say that the way in which the Employment Tribunal dealt with this matter at paragraph 15 subparagraph (13) could have been improved. It is also right to say that the Employment Tribunal should have specifically referred to the application of the criterion at the short listing rather than only to its drafting. However, it is, as it seems to us, manifest from the Decision that the Employment Tribunal had very clearly in mind the following. Firstly, at the time the short listing took place the University had no idea that the particular criterion that was applied was in fact indirectly discriminatory to Asian academics. Indeed we venture to suggest that had this been suggested to the University and the University had understood that choice of the criterion was discriminatory, it would have been horrified. Secondly, at no point in time did anyone suggest to the University that the application of this particular criterion would be indirectly discriminatory of Asian academics. Thirdly it would follow that the University when applying the criterion would have had no idea that it was discriminatory so far as Mrs Lane was concerned on the grounds of her being an Asian as opposed to a White academic. Even though Professor Morgan and Mrs Martin never gave any specific evidence relating to indirect discrimination, the Tribunal was in a position to assess whether they intended to discriminate having regard to the evidence they gave on other matters.
30. Mrs Lane has drawn our attention (as she did to the Employment Tribunal) to two Decisions of the Employment Appeal Tribunal. Firstly, she drew our attention to the Decision of the Employment Appeal Tribunal presided over by Mummery J in the case of London Underground Ltd v Edwards [1995] IRLR 355. Mrs Edwards was a single parent with a young child employed as a train operator. New rostering arrangements were introduced which had a detrimental effect on Mrs Edwards as a single parent with a young child. The London Underground sought to rely upon section 66(3) of the Sex Discrimination Act 1975 which is broadly comparable to section 57(3) of the Race Relations Act 1976. It sought to submit that as not all acts of indirect discrimination needed to be done with the intention of treating the claimant unfavourably on prohibited grounds, there could be an intention to discriminate but at the same time no grounds for suggesting that the intention was to discriminate on grounds of race or sex. It submitted there could be unlawful discrimination which was unintentional and accidental as was the case there and it criticised the reasoning of the Employment Tribunal in that case. Mummery J had this to say:

"28. In our view, it was open to the tribunal to conclude, on the evidence, that London Underground had failed to prove as a fact that the requirement of the new rostering was not applied to Mrs Edwards with the intention of treating her unfavourably on the grounds of her sex. They were entitled to reach the conclusion, without evidence that the rostering arrangements themselves were introduced with the intention of discriminating against Mrs Edwards. The relevant question under s.66 (3) relates to the intention with which the requirement or condition was applied, not to the more generalised intention relating to the introduction of the rostering arrangements. The application of the requirement or condition resulted in Mrs Edwards being treated unfavourably on the ground of her sex. It was open to the tribunal to infer that the requirement or condition was applied with knowledge of its unfavourable consequences for her as a single or lone parent. An intention to produce those consequences could be inferred."

31. We note that Mummery J said it was open to the Tribunal to infer that the imposition of the new roster with knowledge of its unfavourable consequences for the applicant as a single or alone parent might be sufficient to enable the Employment Tribunal to infer an intention to produce those consequences. Those consequences were, as it seems to us, that she would be treated unfavourably on the grounds of her sex.
32. We were next referred to the Decision of the Employment Appeal Tribunal presided over by Mummery J in the case of Walker v Hussain [1995] ICR 991. The Employment Tribunal made a number of findings. All the Applicants were Muslims. They worked for the employer J H Walker and constituted about half of the shop floor workers. At some point in time the employers decided to restrict holiday arrangements and prevented what were described as floating days being taken during May, June or July. On the 8 June the Applicants went to management and told them that the Muslim festival of Eid was going to fall on 11 June. This surprised the management which had totally forgotten to take account of Eid but they refused to relax their conditions and staff were warned of repercussions should they in fact not attend for work on the 11 June. In fact the Applicants chose to take off Eid and their conduct was treated as a mutiny and they were disciplined.
33. Before Employment Tribunal the case was put on the grounds of indirect discrimination and the employers sought to rely on section 57(3). Mummery J said this:

"Conclusion on section 57(3) point

Although we have not found this an easy case, we have reached the clear conclusion that there was no legal error in the industrial tribunal's rejection of the employers' reliance on section 57 (3) of the Act of 1976. Our reasons for this conclusion are as follows.

(1) This was a case of indirect racial discrimination and there is no appeal by the employers from that finding.

(2) In general, cases of indirect discrimination do not involve an intention to treat persons unfavourably on racial grounds: cf. cases of direct discrimination falling within section l (l) (a) of the Act of 1976. Nevertheless, the wording of section 57(3) presupposes that there may be some cases in which the application of a condition or requirement is with the intention of treating the claimant unfavourably on racial grounds. In those cases the respondent will be liable to pay damages for applying a condition or requirement which, despite its neutral formulation, is disparate in impact.

(3) The burden is on the respondent employer to prove that he did not apply the requirement or condition in question with the intention of treating the claimant unfairly on racial grounds. The employer has to show a state of non-intention to treat unfavourably on racial grounds. He will fail to show that if the tribunal find or infer a prohibited intention.

(4) The condition or requirement in question was that there should be no holidays for any employees in May, June or July. That requirement or condition was applied to the applicants on and after 8 June 1992. The crucial question for the industrial tribunal was: did the employers apply hat requirement or condition at that time with the intention of treating the applicant unfavourably on racial grounds?

(5) The answer to that question is part fact, part law. Whether or not the employers had that intention as a matter of fact may be established, on the balance of probabilities, by direct evidence or by inference from all the circumstances. What is meant by "intention" in section 57(3) is, however, a matter of statutory construction and therefore a question of law.

(6) Intention is a state of mind commonly required in law to accompany the performance of a specified act in order to establish liability for that act. The crucial question is what state of mind is relevant to a respondent in the particular context of section 57(3)? In our view, as a matter of ordinary English, "intention" in this context signifies the state of mind of a person who, at the time when he does the relevant act (i.e., the application of the requirement or condition resulting in indirect discrimination) (a) wants to bring about the state of affairs which constitutes the prohibited result of unfavourable treatment on racial grounds; and (b) knows that that prohibited result will follow from his acts.

In our view, section 57(3) of the Race Relations Act 1976 is not F concerned with an inquiry into the motivation of a respondent, i.e., the reason why he did what he did. It is concerned with the state of mind of the respondent in relation to the consequences of his acts. He intended those consequences to follow from his acts if he knew when he did them that those consequences would follow and if he wanted those consequences to follow.

(7) Depending on the circumstances, a tribunal may infer that a person wants to produce certain consequences from the fact that he acted knowing what those consequences would be. For example, if an employer continued to apply a condition or requirement after it had been declared by a tribunal that it resulted in unlawful indirect discrimination and thus knew of its prohibited disparate impact, it would not be difficult for an industrial tribunal to infer that he intended to treat an employee unfavourably on racial grounds, even though his reason or motive for persisting in the action was one of business efficiency.

(8) In the circumstances of this case, the industrial tribunal were entitled to conclude from their findings of fact that the employers had failed to establish that they did not have the intention of treating the applicants unfavourably on racial grounds. The tribunal were not specifically concerned with the intention of the employers in initially adopting the policy of no holidays in May, June or July, although it was relevant to consider that aspect. The tribunal were specifically concerned with the application of that policy to the employees in the period following 8 June 1992. The tribunal came to the conclusion that the applicants were knowingly and intentionally treated less favourably on racial grounds. The tribunal took account of the employers' knowledge of the consequences of their acts and made an inference that they wanted to produce those consequences. The employers knew that Eid was important to the Muslim employees, that they were the only employees affected by the application of the condition or requirement, and that they were required to work on that day. As part of the process of applying that condition or requirement, C the employers inflicted upon them a disproportionate punishment. The fact that the employers' reason or motive in adopting and applying the holiday policy was to promote their business efficiency does not, in our view, either displace their knowledge of the consequences which follow from applying that condition or requirement, or prevent the industrial tribunal from inferring that the employers wanted to produce a state of affairs in which the applicants were in fact treated unfavourably on racial grounds. The tribunal were entitled to find that the employers did not have the benefit of section 57(3).

34. Mrs Lane has fastened on to part of what Mummery J said and in particular to subparagraph 6. What she submitted in effect was this. Once it is shown that an employer (the University in this case) wished to bring about a state affairs which amounted to indirect discrimination, that is the imposition of the financial management criterion, and knows that the imposition of this criterion will exclude or prejudice the Applicant, the case of intentional indirect discrimination is made out. The fact that the employer, or the fact that the University neither knew that the imposition of the criterion was indirectly discriminatory of Asian academics, nor knew that in applying it to the Applicant, it would be discriminating against her as an Asian academic, would be quite irrelevant.
35. It was in effect submitted that if a person does an act such as adopting a selection criteria which in fact unbeknown to him is indirectly discriminatory and he then applies that to an individual in a way which can be regarded as indirect discrimination, the fact that he has no idea that it is discriminatory and does not intend to discriminate on the grounds of race or sex, is completely irrelevant. In our view this submission is unsustainable. It is quite clear that what Mummery J said has to be read in the context of the whole passage we have set out. Clearly, if the University had been put on notice that the imposition of the criterion would be discriminatory or might be discriminatory so far as Asian academics were concerned, if it went ahead and applied it to the Applicant it would be easy to see how it might be possible for the Employment Tribunal to reject the defence under section 57(3). That of course was not the case here. It seems to us that for there to be an intention to apply a discriminatory requirement with the intention of treating the claimant unfavourably on racial grounds there must at least be some knowledge that the specific requirement is or may be discriminatory. It seems to us that that is an answer to the appeal. The Employment Tribunal was entitled to conclude to that the criterion was not applied with the intention of treating Mrs Lane unfavourably on racial grounds.
36. There are other matters raised by the Applicant which seem to us really to be in answer to points made by the Respondent. We have heard submissions as to whether or not the Employment Tribunal was right to conclude that the imposition of the discriminatory criterion was the only ground for the non-selection of Mrs Lane. We have already drawn attention to paragraphs 15(6), 15(2) and 15(3) of the Decision. We also make reference again paragraph 15(5).
37. For those reasons we consider that the appeal should be dismissed. We are extremely grateful, to Mrs Lane for her helpful submissions. We would like to say to Mrs Lane that although she does not have practical experience of the practice of law, at least she has not for many years, she has in no way been disadvantaged by not having instructed Counsel or a solicitor and we commend her for the very fair and careful way in which she presented her submissions.