United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KEITH MORTON (of Counsel) The Treasury Solicitor (Employment Team) One Kemble Street London WC2B 4TS
For the Respondent	MR MOHINDERPAL SETHI (of Counsel) Messrs Russell Jones & Walker Solicitors 50-52 Chancery Lane London WC2H 1HL


 


SUMMARY

SEX DISCRIMINATION

Indirect

RACE DISCRIMINATION

Indirect

Appeal by MOD against ET's findings of indirect sex and race discrimination. Claimant was a female soldier in the army, from St. Vincent & the Grenadines, who was also a single parent with a young daughter. The ET found that two provisions, criteria or practices were applied to her by the MOD, namely that she be a soldier available for deployment on a 24/7 basis; and also that she could not have a member of her extended family (a half-sister) to stay with her in the Service Families Accommodation because she was a foreign national only entitled to stay in the UK for a short period. The ET found that these PCPs had not been shown to be a proportionate means of achieving a legitimate aim and upheld the claims.

The EAT dismissed the MOD's appeal.


 


THE HONOURABLE MRS JUSTICE COX

Introduction

1. Maternity and soldiery are not the easiest of allies. This appeal raises issues which are very familiar to those concerned with laws addressing gender inequality, but it has an added dimension. Tilern DeBique was a Foreign and Commonwealth soldier serving in the British Army, as well as a single mother with a young daughter; and this appeal raises interesting questions of both race and sex discrimination law, and of the interplay between the relevant statutory provisions.
2. The MOD is appealing from two judgments of the London Central Employment Tribunal, promulgated with reasons on 16 July 2008 and, subsequently, on 21 November 2008. The essential question is whether the Tribunal were right to decide that the MOD had indirectly discriminated against the Claimant, Ms DeBique, under both the Sex Discrimination Act 1975 (SDA) and the Race Relations Act 1976 (RRA).
3. The issues raised relate to the requirements of service life, to the provision of necessary childcare arrangements, and to policies relating to those arrangements for single parent soldiers who are foreign nationals serving in the British Army. These competing considerations, and the applicability of anti-discrimination legislation in the context of an Employment Tribunal claim, render this an unusual case.
4. Save for a short period in the preparatory stages, this Claimant acted in person below. She completed her ET1 herself and she appeared in person at both hearings. We pay tribute to the Tribunal, as did both counsel before us, for the careful way in which they approached the difficult legal issues in the circumstances. The Claimant, and indeed the EAT, has had the benefit of counsel's assistance on appeal.
5. As the judgments indicate, the proceedings below had an unfortunate procedural history, with a lack of clarity as to the issues to be determined, and both amendments and re-amendments by the MOD to their grounds of resistance. None of that is relevant to this appeal, save by way of explanation for there being two judgments.
6. There were found, in this indirect discrimination case, to be two PCPs (provisions, criteria or practices) applied to the Claimant by the MOD. At the first hearing, in June 2008, it was unclear whether the application of one of these, known as the "immigration PCP", had been adequately pleaded and identified by the Tribunal in CMD orders as an issue in the case, so as to permit the Claimant to rely upon it. The first hearing therefore proceeded on the assumption that it was an issue, subject to further submissions.
7. A further hearing in September was necessary, in any event, to hear further evidence and submissions on the issue of justification. By that time the MOD had accepted that the "immigration PCP" issue was properly before the Tribunal. In the second judgment the Tribunal therefore confirmed their earlier findings and determined the remaining issues in the case.

The Facts

8. The Claimant's home is St Vincent and the Grenadines, a member of the Commonwealth, where she lived in a small village with her extended family. In November 2000 the British Army were carrying out a recruitment drive in St Vincent and, encouraged by what she saw and was told, the Claimant applied successfully to join the Army. She joined on 2 March 2001, when she was then aged 19.
9. The Tribunal found that this decision changed her whole life. She left her home and family, swore an oath of allegiance to the Queen and moved to the UK. She received training as a technician and began what she hoped would be a successful military career.
10. In the early years all went well. She served both in the UK and in Germany. Although her postings were in the main non-combative, her job required her to have the necessary skills to support the Army in a combative role. She understood and accepted this.
11. On 31 May 2005 the Claimant was posted to the "238 (London) Signal Squadron", which was part of the 10^th Signal Regiment. There were approximately 67 soldiers in the Squadron and the Claimant was placed in a unit of between ten and 12 technicians, responsible for equipment used by the Regiment.
12. At the time of this posting the Claimant was pregnant and she began her maternity leave on 26 June 2005, her daughter being born in August.
13. At first, the Claimant took her baby daughter back to St Vincent and made childcare arrangements for her there. At the end of her maternity leave she returned to work, in February 2006, and her daughter remained in St Vincent, being cared for by the Claimant's family. Although her mother had died many years before, the Claimant had a large number of siblings or half-siblings to help her.
14. In August 2006 the Claimant went back to St Vincent on leave. Whilst there she became unhappy with the arrangements for her daughter's care and she decided to bring her daughter back with her to the UK. They returned on 8 September 2006, when her daughter was 12 months old.
15. On her return the Claimant was given two-bedroom accommodation in the Service Families Accommodation (SFA) at Chelsea Barracks. She had arranged with her unit that she would not undertake weekend duties, and that she could work from 8.30am to 4.30pm on Mondays to Fridays, enabling her to take her daughter to the carer at 8.00am and collect her again at 5.00pm. She was told by her Commanding Officer at the time that this was not a problem and that, if necessary, she could arrive for work at 9.00am. On that basis the Claimant returned to work with her unit on 11 September 2006, and these arrangements seemed to work satisfactorily for the first few months.
16. However, notwithstanding what the Claimant understood to have been an agreed adjustment to her working hours, and unknown to her at the time, it was being noted internally that she was starting work late, that she was unable to carry out weekend duties, and that this was affecting the cohesiveness of the unit.
17. Further, due to her daughter becoming suddenly unwell for a time in December 2006, the Claimant had to miss the last part of a five-day hardware course. Although no-one raised it with her at the time, this fact was recorded.
18. On 16 January 2007 the Claimant failed to appear on parade, for a reason relating to childcare difficulties. She was then warned by Staff Sergeant Bagstaff that not parading for duty was a serious offence and that she was likely to receive AGAI 67 action, a reference to a form of disciplinary action in the Army General and Administrative Instruction book.
19. As a result of this incident the Claimant arranged her childcare to start earlier, so that she could arrive on duty at 8.00am instead.
20. By this time Major Sykes had taken over as the Claimant's Officer in Command. He became aware of her adjusted hours of work, and of the fact that she had missed part of the course in December and the parade in January.
21. On 22 January he told her that she would have to resolve the issues of her attendance and that he would be looking into ways in which the Army could assist. However, on the same day, Sergeant Bagstaff imposed an "extra duty" sanction, under AGAI 67, for the failure to attend parade. The sanction comprised two extra overnight duties which the Claimant, as the single mother of a young child, was unable to carry out.
22. On 26 January the Claimant was called to see Major Sykes. Contrary to her expectation that he was going to report back on possible steps to assist her, the Tribunal found that this turned out to be a disciplinary interview. Major Sykes told her that she was going to be issued with a formal warning, on the basis of her unsuitability to serve as a soldier.
23. On 1 February 2007 the Claimant saw Captain White, the Regimental Careers Management Officer, when four options were put to her, apparently on the basis that they would resolve her childcare difficulties. These options were (1) Notice to Terminate (NTT), namely her resignation; (2) CCE, meaning a change of trade; (3) T1, meaning a 12-month period of secondment away from her unit for further training; and (4) transfer to another unit.
24. Four days after this meeting Major Sykes issued a more serious sanction under AGAI 67, namely a formal warning based on her "unsuitability". In addition, Major Sykes withdrew the Claimant from certain duties and deducted four days from her leave because of what had happened on the hardware course, when the Claimant had suddenly had to leave to deal with her sick child. The Claimant was also put on "three-months' monitoring", which meant that she would be seen and interviewed each month to see whether the warning had had its effect.
25. On 28 February 2007 the Claimant presented a formal complaint about her treatment. She raised two grievances. The first one was that the warning that she had been given amounted to excessive punishment, and that the procedure followed was wrong.
26. The second complaint was that she considered she was being discriminated against on grounds of race and sex, on the basis that;

"Provisions are made for soldiers to meet this requirement, that is the requirement to be [a] 24/7 soldier by having an adult relative live with them in the SFA if required, to provide the childcare cover as and when it is required. However, as a Foreign and Commonwealth soldier this provision does not apply to me. I believe this is racial discrimination as it does not support the Army policy of equal opportunities and diversity."

…

and

"According to Army policy it is the responsibility of parents, married or single, to ensure that they have the required childcare. After serious consideration and legal advice I believe this amounts to indirect sexual discrimination."

27. Her reference to Army policy was to a guidance document dated 29 November 2002, which emphasises that it is the responsibility of soldiers themselves to organise childcare.
28. This guidance was updated on 29 February 2008. Entitled "British Army Guide to the Employment and Deployment of Serving Parents and Carers", it refers to various ways in which Commanding Officers might assist a single parent to deal with childcare problems. However, paragraph 6 states:

"As soldiers, serving parents or carers must be available for deployment at any time and thus have a responsibility for ensuring they have robust arrangements in place to care for their children or dependent adults should they need to be away. The key to this is making arrangements well in advance and ensuring that advice and support is sought from either the Unit Welfare Staff or the Army Welfare Service."

29. The Tribunal found that, by now, the Claimant was in a state of some distress. Witnesses referred to her withdrawing into herself and being tearful at various meetings and interviews. At paragraph 80 of their reasons the Tribunal found that:

"Basically what was happening to her at this time was that she had been told that she was not pulling her weight. She had been unable to participate fully in the routine of her Squadron, for example, to offer herself for the Instant Response Team, and she had received a warning on the grounds of unsuitability and offered resignation as an option. She was upset about the way she had been treated."

30. She was referred to the Medical Centre and saw members of the Psychiatric Team connected to the Welfare Service. She was given three weeks' sick leave and antidepressant medication was prescribed.
31. On 12 March 2007 Lt Col Quinlan, the Chief Officer of 10^th Signal Regiment, upheld the warning that had been issued on 5 February, thereby dismissing the Claimant's first grievance.
32. The second grievance was regarded as raising policy issues, because it involved the effects of immigration policy and guidance upon a Foreign and Commonwealth soldier who had childcare difficulties. Lt Col Quinlan therefore referred the sex and race discrimination points to the Equal Opportunities Investigation Team. They responded on the same day by refusing to take up the matter, because they considered that the Home Office, and not the Ministry of Defence, should rule upon it.
33. The Tribunal regarded that as:

"…a missed opportunity to try to discuss with the Home Office what could be done to assist Foreign and Commonwealth soldiers and officers in this position."

They referred to the great deal of evidence they had heard from witnesses for the MOD, indicating that the MOD was generally able to discuss matters of this sort with the Home Office. They stated that:

"There were many times, we were told, when the Home Office would assist the Army with problems of this type and other types of problems. In particular, there were regular meetings set up with the Home Office. We heard about soldiers who needed to have an extended stay in this country, in order to continue to serve in the Army. Also the Army would support, with the Home Office, such soldiers' applications for British nationality. We heard of constant reviews to ensure that the Army's policies provided equal opportunity and were not discriminatory. This was done both by Major Harward's department (Army Families Welfare) but also the Department of Legal Services, which had an Employment Law Branch. The Equal Opportunities Investigation Team (EOIT) was supposed to deal with one-off matters rather than general policy."

34. At about this time the Army was aware that, in order to solve her problems, the Claimant wanted to bring one of her sisters or half-sisters, a national of St Vincent and the Grenadines (a Vincentian), to the UK to help look after her child. This sister was older than the Claimant and, being unmarried, was free to come over and assist on a long-term basis. This would have solved her childcare problems because the sister would be a carer who could live with the Claimant in the SFA. The Claimant would then be able to carry out her role as a soldier, being available to be deployed on a 24/7 basis.
35. However this sister, being a foreign national, could not enter this country other than as a visitor. Further, as a visitor, she could not stay for more than six months. The Tribunal found that:

"This condition had been translated by the Army as being a restriction of who could assist the Claimant as a carer in the SFA."

36. On 19 March 2007 Lt Col Quinlan told the Claimant that the policy restricting her ability to bring in her sister to the UK, to care for her daughter full-time in the event of her deployment, was "out of MOD hands". He said he thought there was no point in taking it any further, as the EOIT had refused to investigate the matter. The Claimant did not accept that this was appropriate, and Lt Col Quinlan therefore decided to refer the complaint up to the GOC 5 Division.
37. As at the time of promulgation of the Tribunal's first reasoned judgment (July 2008), they referred to the fact that the matter had still not been dealt with at any higher level. The complaint was therefore still "live for resolution".
38. In the spring of 2007 the Claimant was still being monitored on a monthly basis. On more than one occasion Major Sykes told her that, unless she could rectify her childcare arrangements so as to permit her to carry out duties on a 24/7 basis, then he was within his rights to request termination of her service.
39. The Claimant, therefore, made enquiries about what would happen to her should her service be terminated. She discovered that it would be regarded as gross misconduct. If that happened she would, therefore, not only have a blot on her career record, but would also lose her chance of Army resettlement training to prepare her for civilian life.
40. The Claimant formed the view that what was happening to her was leading her along a path to dismissal. The Tribunal found as a fact that she was reasonable in holding that view; that the reason why she was on that path was because of her childcare problems and her inability to solve them by bringing her sister here; and that objectively, and despite the offer of alternative options, it appeared in reality that the Army no longer wanted to retain her services.
41. The Claimant was fearful of dismissal and of losing her resettlement training, and she took the view that there was no way in which she could resolve the difficulties in which she had been placed.
42. The Claimant's position in the Army was found to have been undermined. She had been made to feel that she was not pulling her weight. She had been told that this was affecting moral and the cohesiveness of her unit, and that she was unsuitable for the Army. The Tribunal found that these comments had caused her considerable distress.
43. She therefore decided to submit a Notice to Terminate and she did so on 20 April 2007, giving 12 months' notice as required.
44. Major Sykes told her that he thought she had made the right decision. He told her that:

"The British Army was a war-fighting machine and he didn't think it suitable for a single mother who couldn't sort out her childcare arrangements."

45. The formal warning issued on 5 February 2007 lasted for three months and it was renewed for a further three months. At the review, it was recorded that there had been no positive change to the Claimant's situation as a result of the formal warning. Once again it was noted that she had an inability to meet her commitments as a soldier and as a junior non-commissioned officer.
46. It appears that, following her decision to resign and the presentation of her claim to the Employment Tribunal on 30 April 2007, the Army made some further efforts to try to accommodate her difficulties.
47. On 14 June 2007 Major Grice offered her some further options. In particular, she was offered the possible option of going to Aldershot or being posted to Blandford for a period of three years. Blandford was the main base of the Regiment. That posting might have resolved her childcare problems, since childcare arrangements in Blandford were cheaper and easier to come by. However, the Claimant had been told on several occasions that such a posting could not be guaranteed and it might therefore have been only a temporary solution. Further, at the end of the three-year posting, the Claimant would have been obliged in any event to return to full operational duties.
48. On 1 August 2007 the 238 Signals Squadron was disbanded and amalgamated into the 251 Signals Squadron. Major Toze took over as Officer in Command of the Squadron.
49. He conducted a formal interview with the Claimant on 24 August 2007, in order to review the warning. He told her that he would not be recommending her discharge, but would be recommending a letter of censure. He adopted this approach because the Claimant's childcare difficulties had not improved. She still only had a carer in place for normal working hours. He told her that, although most of the personnel had been moved to Aldershot in the amalgamation, he was going to authorise the Claimant to stay in London for the remainder of her period of service (eight months). He told her to prepare for civilian life and to see the welfare officer and the resettlement officer. In other words the Tribunal found that he was endorsing and accepting the Claimant's decision to leave the Army.
50. In October 2007 Major Toze offered the Claimant the option of being posted to Blandford for five instead of three years, if she signed up for her Class 1 examinations. By this time however the Tribunal found that the Claimant felt unable to accept that offer because of all that had happened to her.
51. On 15 October 2007 the Claimant was told that the formal warnings would be removed from her record and this was confirmed by letter dated 6 March 2008.
52. The Claimant's last day of service in the British Army was 19 April 2008.

The Claimant's Complaint of Discrimination

53. In her ET1 the Claimant indicated that she was complaining of both sex and race discrimination. Referring to the fact that she is a single mother and unable to arrange 24/7 childcare, she summarised her complaint as follows:

"As a female soldier serving in the forces, I think I am proportionately disadvantaged compared to male soldiers. In addition to that, in trying to resolve the issue and continue in my employment, I realised that being a Foreign and Commonwealth soldier like myself put me at an additional disadvantage. This is because provisions are made for single parents however, these provisions are not extended to Foreign and Commonwealth soldiers. I feel particularly disadvantaged as, having been recruited directly from St Vincent and the Grenadines, I have no family unit here to offer support and my employer has not made equal provisions across the board or taken any steps towards ensuring that all employees are on equal footing."

54. It was determined at the CMD hearing on 20 July 2007 that her claim involved allegations of indirect sex and race discrimination.

The Tribunal's Decision

(A) Indirect Sex Discrimination

55. The Tribunal considered the provisions of section 1(2)(b) SDA 1975, as amended. They found that the MOD applied to the Claimant a provision, criterion or practice (PCP) that required her to be available for duty for 24 hours a day, seven days a week. This "24/7 PCP" covered routine duties, including weekend cover and attendance at parades; special duties, including deployment on tours of duties abroad or duties as a member of the Incident Response Team; and urgent or emergency duties, including emergency service abroad. Army policy is that every job is "deployable", so that a soldier performing routine duties in the UK might be asked to undertake similar duties abroad or completely different duties, either in the UK or abroad. Soldiers might be called upon to work during accepted off-duty hours, or might have leave postponed or cancelled at any time.
56. The Tribunal found that this 24/7 PCP was applied to the Claimant throughout her service in the Army. At first, it appeared to have been relaxed by agreement, but the fact that she was working restricted hours and not pulling her weight was being noted internally, though unknown to her. Disciplinary sanctions were imposed. The options offered to her included the option of resignation, which ultimately she took. The offer of that option was held to amount to confirmation that the 24/7 PCP was being applied to the Claimant, because it was being said that her position in the light of that PCP was untenable. None of the alternative postings offered could be guaranteed and the Claimant always remained liable to be called into action at short notice under the PCP.
57. Viewed in isolation and taking as the effective pool, for comparative purposes, all male and female soldiers in the British Army, the Tribunal found that the women in that pool were or would be put to a particular disadvantage by the 24/7 PCP, compared with the men. This was because women were more likely than men to be single parents with primary childcare responsibility; and the 24/7 PCP caused particular difficulty for single parents because of the need for special childcare arrangements.
58. The same result would be achieved, it was held, even if a narrower pool were chosen, namely male and female soldiers who might become single parents.
59. The Tribunal arrived at these conclusions on the basis of all the evidence they heard, including evidence from a Mrs Clarke, whose "nightmare" experience in relation to the 24/7 PCP was not suggested to be in any way to be untypical and was, rather, highly likely to be typical.
60. There was no suggestion that, in relation to the 24/7 PCP viewed in isolation, the Claimant was treated more harshly than any other person in the same situation would have been treated. The 24/7 PCP was Army-wide and of universal application. Any adjustment was made reluctantly and on a case by case basis; and was regarded as a concession. Ultimately, the soldiers themselves had responsibility for their own childcare arrangements. This PCP, therefore, put the women in the pool at a particular disadvantage when compared with the men.
61. On the evidence the Tribunal also found it to be clear that the Claimant, as a single mother, was herself put at a particular disadvantage in being unable to comply with this PCP.
62. Viewed in isolation, however, the 24/7 PCP was found to be a proportionate means of achieving a legitimate aim. The Army, by definition, needs to be in a high and permanent state of readiness. The Claimant's own Regiment was in a high state of readiness at all times, and the PCP was necessary to maintain the integrity of the Army and its ability to be effective. It could not therefore be relaxed. The Tribunal considered whether it might be possible to create a separate category of soldiers, who would not be required to comply with this PCP, but they rejected it as impractical.
63. Having regard to the provisions of section 85(4) SDA, the Tribunal also held that this PCP was necessary in order to ensure the combat effectiveness of the Army. Its application to the Claimant was, therefore, not unlawful pursuant to that section in addition.
64. In the Claimant's case however, the Tribunal held that viewing the 24/7 PCP in isolation failed to reflect the Claimant's particular disadvantage. Her situation was found to be worse than that of Mrs Clarke. The latter had backup from her husband at weekends and her mother-in-law during the week, and her own difficulties were resolved when she moved to a house nearer to her mother-in-law. The Claimant, however, had no other backup and, because her only possible backup (her sister from St Vincent) was not available to her, her difficulties were not resolved.

B) Indirect Race Discrimination

65. Considering the provisions of sections 1(1A) and 1(1B) of the RRA 1976, as amended, and on the basis of the evidence and facts found, the Tribunal held that the MOD had applied a further PCP to this Claimant, which they described as the "immigration PCP".
66. This PCP operated as follows. The Claimant was given two-bedroom accommodation in Service Families Accommodation at Chelsea Barracks, which provided her with sufficient space to house a carer for her daughter. Such accommodation was generally offered to single parents, to enable a carer to live in the SFA with them. This carer was often an adult relative, as encouraged and approved by the Army.
67. The only carer that the Claimant had available to her was her sister or half-sister, a Vincentian national. If her sister had been able to come and stay in this country on a long-term basis she would have been able to live with the Claimant in the SFA and to help in caring for her daughter, thereby enabling the Claimant to comply with the 24/7 PCP which was applied to her.
68. Army policy did not permit this, however. The position was made clear in the document entitled "A Unit Guide to the Administration of Foreign and Commonwealth Soldiers and their Families". Though recognising the existence of a general tradition in many foreign and Commonwealth communities, of relations in extended families providing such support, these "social practices" were said, however, to have "no binding status within immigration law". Paragraph 31 of this Guide stated:

"For the avoidance of doubt F and C soldiers are not permitted to invite relations to live with them in their SFA for the purpose of looking after or supervising children, either paid or in an unpaid capacity. The IND will refuse all such immigration visa applications. Such employment requires a working visa stamp as opposed to the visitors' visa application."

69. This restriction was found to be applied as a result of immigration policy and rules. There is no provision in the immigration rules for a foreign national to enter the UK, for the express purpose of caring for a child. Whilst there is scope for a visitor to act as a temporary childminder, the relevant requirements include a requirement that that visitor should not be paid and that s/he should not stay in the UK for more than six months.
70. Thus, the Tribunal held (paragraph 130), that the Army rule that Foreign and Commonwealth soldiers are not permitted to invite relations as carers to live with them in the SFA is because those relations would need a visa to act as long-term carers and this would be refused by the Home Office Border Agency.
71. They held, on the evidence before them, that this immigration PCP had been applied to the Claimant throughout her service in the Army and that it was applied to her by the MOD.
72. They held, firstly, that the MOD could not avoid responsibility by submitting that they do not make the immigration rules, because, whilst that was correct:

"The Home Office is the same legal or constitutional entity as the Ministry of Defence. We cannot see that these two organs of the Crown are separable for the purpose of this claim. The immigration rules were promoted by the Home Office. They were made just as much by the Crown as the 24/7 PCP was."

73. Secondly, they rejected the submission that, in applying the immigration rules, the Home Office was not acting in its capacity as employer. They held that the RRA does not require the employer to apply the PCP in its capacity as employer, stating:

"Those PCPs which come within the Act are those applied to the employee by the legal or constitutional entity which employs the employee."

74. At the subsequent hearing before the Tribunal in September, notwithstanding the earlier finding of fact that the immigration PCP had been applied to the Claimant, counsel for the MOD sought to argue that the immigration PCP was not actually applied to the Claimant at all, but was, rather, applied to her half-sister.
75. The Tribunal rejected that submission for the reasons explained at paragraph 37.3 of their second judgment, as follows:

"The immigration PCP had its impact and effect upon the Claimant both directly and indirectly. It had indirect effect because, although it applied to the Claimant's half-sister, it meant that her half-sister could not come into the UK and act as a live-in childminder to enable the Claimant to comply with the 24/7 PCP. This caused disadvantage to the Claimant in the manner we have described. And the immigration PCP had direct effect upon the Claimant because it was adopted by the Ministry of Defence and used by the Commanding Officer as a reason why she could not bring her sister over."

The Tribunal referred in this respect to the reasons set out in their first judgment, including the Army's stated policy at paragraph 31 of the Unit Guide.

76. The Tribunal identified the pool, for the purposes of comparison, as those in the British Army of both Vincentian national origin and British national origin, who are single parents. They did so on the basis that many, if not most, Foreign and Commonwealth soldiers (the disadvantaged classes) would also be disadvantaged by the immigration PCP. Those of British national origin would, on the other hand, be more likely than the disadvantaged classes to have an extended family with rights of abode in the UK, and thereby to have relatives more readily available to act as potential carers for them in the SFA.
77. On the statistical evidence before them they found that of the 106,205 members of the British Army, as at 1 March 2007, 93.44 per cent were British. The numbers of Commonwealth soldiers amounted to 6.29 per cent. Of the 6,685 officers and soldiers from 35 Commonwealth countries, 275 were Vincentians, representing 4.11 per cent of the total number of Commonwealth soldiers and 0.26 per cent of the total Army personnel.
78. At paragraphs 166 – 167 they held:

"166 The Tribunal is of the view that where there are several classes of people disadvantaged by the PCP and the Claimant falls into one of those classes, and there is also a class of people who are not disadvantaged by the PCP, the correct approach is to compare the position of the class into which the Claimant falls with the class which is not disadvantaged. The question is then whether the class into which the Claimant falls is at a particular disadvantage compared with the class which is not disadvantaged. In this case, since the claim is one of nationality, or more accurately of national origin, the comparison would be between those of Vincentian national origin and those of British national origin. The comparison therefore ignores, for this purpose anyway, other classes of people who are also disadvantaged.

167 The Tribunal considers that this approach is legitimate bearing in mind Section 1(1A)(a) requires the comparison to be between the Claimant's class and 'other persons'. The Act is silent as to who those other persons ought to be, except that Section 3(4) requires the other persons to be in the same, or not materially different relevant circumstances. It is clear to the Tribunal that the Act does not require a comparison with all other persons affected by the PCP. It only requires comparison with other persons and not all other persons."

79. The Tribunal held that the immigration PCP put those of Vincentian national origin at a particular disadvantage when compared with other persons in the pool (i.e. those of British national origin). Their extended families and therefore their potential child carers were more likely to be foreign nationals, who could only come to the UK as visitors and stay for six months.
80. The numbers of soldiers of British national origin who had or might have potential carers who are foreign nationals were likely to be very small, as were the numbers of Vincentian soldiers with potential carers who had a right of abode in the UK. These would not invalidate the comparison within the pool. The Tribunal applied their commonsense, having regard to the Army membership statistics and the evidence they had heard of the Army's recruiting campaigns in Commonwealth countries.
81. This PCP was held also to have put this Claimant at a particular disadvantage, because she could not have her sister living with her in the SFA to help her to care for her daughter. Whilst her sister had not actually applied for a visa, the Tribunal found as a fact that this was because the Claimant had been told that it was impossible given the current policy.

(C) The PCPs Combined

82. In addition to considering each of these PCPs in isolation, the Tribunal recognised (see paragraph 38 of their first judgment) that the Claimant had always made it clear that it was a combination of the 24/7 PCP and the immigration PCP, as applied to her, that caused her particular disadvantage. This much, we agree, is clear from the grievances she raised and from the complaint she identified in her ET1.
83. At paragraphs 152 – 155 the Tribunal considered the appropriate and effective pool, for comparative purposes, in looking at what they referred to as "the combined effect" of the 24/7 and immigration PCPs for the purposes of the SDA claim. Having regard to Section 5(3) SDA and the need to compare persons whose relevant circumstances are the same or not materially different, they chose a pool containing those male and female soldiers in the British Army whose potential child carers are foreign nationals.
84. They found that the women in that pool were at a particular disadvantage compared with the men, because the women were more likely to be single parents. Both PCPs were found to be causative of that disadvantage on the basis that, whilst either one of them remained, the other one caused particular disadvantage. A relaxation of either of them, it was held, would have avoided that disadvantage.
85. If the women in the pool were not obliged to comply with the 24/7 PCP they would not be under the disadvantage, compared with the men, caused by the immigration PCP. They would be able to use ordinary childcare arrangements of the kind used by most employees working regular hours. If the immigration PCP was not applied, the potential child carers of those in the pool could enter the UK and remain as carers in the long-term, avoiding the disparity between men and women in the pool.
86. These combined PCPs also put this Claimant at a particular disadvantage in that she was required, as a single parent, to be available for duty on a 24/7 basis and was not permitted to have her sister, who was available to act as child carer, to enter the UK and stay with her in the SFA on a long-term basis.
87. At paragraph 177 the Tribunal considered the combined 24/7 and immigration PCPs for the purposes of the RRA claim. They held that the same pool was effective for comparative purposes, namely those of both Vincentian national origin and of British national origin in the British Army who are or may become single parents.
88. Applying the same reasoning as that in relation to the SDA claim, they found that the combined PCPs put those of Vincentian national origin at a particular disadvantage when compared with other persons in the pool. If either of the PCPs were relaxed, that disadvantage would disappear. Further, the combined PCPs were held to put this Claimant to that disadvantage.

(D) Justification

89. At the re-convened hearing on 19 September, the Tribunal heard evidence relating to the MOD's justification of both the immigration PCP and the combined PCPs. This included evidence from the UK Border Agency (UKBA), the Land Forces Secretariat (Foreign and Commonwealth) and evidence as to the interrelation between the Army and the UKBA, which supplemented the evidence given at the previous hearing.
90. They referred to the relevant immigration rules and to the guidance to immigration authorities in determining whether proposed childminding by a foreign national is incidental to a holiday in the UK (an essential requirement), or a form of employment (including unpaid employment), which is prohibited.
91. An application for a work permit from a foreign (non-EU) national was held on the evidence to be very unlikely to succeed. The provisions relating to the category of people who might seek permission under the "working holiday-maker" provisions included age, length of stay and nationality restrictions. It was found to be clear on the evidence that the Claimant's sister would not have satisfied these criteria; and the working holiday-maker category did not, in any event, allow for childcare on a permanent basis.
92. The Tribunal found that foreign nationals could, however, apply for permission to come to the UK via the LOTR (Leave Outside The Rules) provisions. These included cases involving "particular compelling circumstances", where leave for a limited or indefinite basis would be considered on a case by case basis. Grants of LOTR would be rare and leave would be granted only for "genuinely compassionate and circumstantial reasons", or where it was deemed absolutely necessary to allow someone to enter/remain in the UK when there is no other available option. The Tribunal found that an application by the Claimant's sister under these provisions would have failed.
93. On the evidence they heard, however, the Tribunal found that the immigration PCP could have been relaxed, either by a change to the immigration rules themselves or by creating an "immigration policy concession" within the LOTR provisions.
94. In relation to the first option, Ms Holt (SEO in the Land Forces Secretariat) referred to the liaison between the Army and the UKBA from time to time. She referred to four occasions in the past when the immigration rules had been changed to assist those in Army service. The first two of these were considered relevant to the present case.
95. The first was where the duration of UK entry visas for dependents of Foreign and Commonwealth personnel in the armed forces was raised from six months to up to four years; and leave to remain in the UK for spouses and civil partners of such personnel was increased from three to four years, depending on the length of service of the serving spouse/partner.
96. The second change had involved a relaxation of the rules relating to the ability to seek British citizenship whilst still serving, by enabling periods of service spent overseas as well as in the UK to count towards the five-year residency criterion.
97. The "immigration policy concession" was a recognised concession, which could be relied upon by applicants who came within particular categories listed in the LOTR provisions, and which would not affect any rights of permanent residence in the UK.
98. Categories included both small and much larger groups of individuals. One category, for example, was "Jewish Agency employees", involving just four or five people, who were allowed to work in the UK for such an agency. Other, considerably larger categories included voluntary workers, airline staff and offshore workers.
99. These concessions were not necessarily short-term or temporary arrangements. There was a concession, for example, for carers of seriously ill or disabled relatives, pursuant to which foreign nationals would be allowed to enter the UK and provide such care under a long-term arrangement, not limited to any particular period.
100. A further concession was granted to over-age dependants of intra-company transfer work permit holders. This related to people over 18 who could be regarded, having regard to cultural and social practises, as dependants and who could enter and remain in the UK on a long-term basis.
101. In considering justification in the Claimant's case the Tribunal took all these factors into account, together with the following factors in addition: the proactive recruitment campaign carried out by the British Army in St Vincent, and the encouragement given to the Claimant to join up; the Claimant's decision, as a result, to serve in the British Army, to leave her home and family and to move to a foreign country; the fact that it was foreseeable both that those recruited could already be or could become single parents whilst in service, and that they would need to rely on a member of their extended family, who was a foreign national, to live in the SFA to help in caring for their child or children on a long-term basis; and the fact that this was recognised by the Army's own internal guidance referred to at paragraph 31 of the Unit Guide.
102. Despite this and the foreseeable difficulties which would be created for this Claimant in such circumstances, the Army was found to have failed to make any appropriate arrangements. Such arrangements would have been effective childcare provision, to enable single parent soldiers to comply with the 24/7 PCP; and/or some relaxation of the usual immigration rule or obtaining of a concession, through liaison between the Army and the UKBA, as had occurred in a variety of other comparable circumstances.
103. Had such arrangements been made, a single parent Foreign and Commonwealth soldier, whose extended family members were foreign nationals, would not be put at a particular disadvantage in this respect when compared with a single parent soldier of British nationality, whose extended family had the right of abode in the UK.
104. However, no such arrangements were made, either at the time of the Claimant's recruitment or subsequently in 2007, as a result of the refusal of the Equal Opportunities Investigation Team to take up the matter on the Claimant's behalf, when there had been a good opportunity for them to do so.
105. Whilst accepting, for the purposes of this claim, that the right to control this country's borders in order to restrict entry by non-nationals and apply the immigration rules consistently, was a legitimate aim, the Tribunal considered that this did not effect their decision on the facts of this case. Whilst Parliament has provided the legal framework for the making of decisions as to immigration matters, Parliament has also given Employment Tribunals jurisdiction to determine whether there has been unlawful sex or race discrimination in relation to service in the armed forces. It cannot have intended, as was submitted on behalf of the MOD, that everything done by Parliament must automatically amount to a proportionate means of achieving a legitimate aim save in an exceptional or extreme case.
106. The Tribunal considered, but rejected, further submissions advanced on behalf of the MOD, (a) that the Claimant was herself exempt from immigration controls as a serving soldier, and that if she were given a particular concession in relation to her childcare requirements, the effect would be to treat her more favourably than others who were subject to immigration controls; and (b) that it would be wrong to require a relaxation of an immigration rule on the basis of only one complaint from this individual Claimant.
107. Firstly, it was held that a line had to be drawn somewhere. It had been drawn in one place rather than in another in a variety of different cases, where concessions had been granted as a result of effective liaison between the Army and the UKBA. Secondly, one of the previous concessions identified had involved only a very few Jewish Agency employees. Further, the Claimant's complaint had "got stuck in the chain of command" and a good opportunity was missed to try to correct the matter as they had previously found.
108. In any event, given the numbers of Foreign and Commonwealth soldiers, it was clearly possible that others were or would be affected by these PCPs, and that the Claimant's was not an isolated case. On the evidence they heard they held that, had Ms Holt's team investigated the matter, further similar cases would probably have been discovered.
109. Finally, the Tribunal rejected a "floodgates" argument, that immigration policy as a whole would be undermined if this PCP was held to be unjustified, stating:

"The Tribunal does not accept that argument, firstly as we have said before: the line has to be drawn somewhere. That line in the view of the Tribunal should be drawn in such a way as would in this case … put Foreign and Commonwealth soldiers on a level footing with soldiers of British nationality. In drawing the line at that point, it does not mean that others who do not face these particular PCPs, or who face different PCPs, could not also argue that the line should be drawn in another place. There are many cases where other people could have a moral argument for the line to be redrawn, but that does not necessarily mean that there has been unlawful discrimination. And we can see from the guidance set out … above, that such distinctions are frequently made by the immigration authorities."

110. The Tribunal therefore concluded that, on the evidence, the MOD had not discharged the burden of showing that the immigration PCP, either by itself or when combined with the 24/7 PCP, was a proportionate means of achieving a legitimate aim.
111. Further, no defence was provided by Section 85(4) of the SDA in respect of the claim based upon the immigration PCP combined with the 24/7 PCP.
112. Their decision was therefore that (1) the MOD did discriminate against the Claimant under sections 1(2)(b) and 6(2)(b) of the SDA by the combined effect of the 24/7 and immigration PCPs which were applied to her by the MOD; and (2) the MOD did discriminate against the Claimant under sections 1(1A) and 4(2)(c) of the RRA by applying the immigration PCP, and by the combined effect of both PCPs which they applied to the Claimant.

This Appeal

113. In this appeal it has been assumed, though not expressly conceded by the MOD, that the Tribunal were correct to conclude that the MOD and the Home Office, as emanations of the Crown, are indivisible and inseparable for the purposes of this claim. We heard no argument on this point and we have, therefore, proceeded on that basis.
114. There are nine separate grounds of appeal, raising discrete challenges to different components of the Tribunal's decision, and we shall address each in turn.

Ground 1

115. On the basis of the assumption referred to above, Mr Morton's first and main challenge to the Tribunal's decision is that they erred in deciding that they had jurisdiction under the RRA to determine the claim based on the immigration PCP. He submits that this claim was, in substance, a challenge to the immigration rules themselves; and that section 19D in Part III of the RRA prevents any challenge to these rules under that Act.
116. In support of that submission Mr Morton referred to sections 1(4) and 3(2) of the Immigration Act 1971, and to the recent review by the Court of Appeal of the origins and purpose of the immigration rules in Odelola v Secretary of State for the Home Department [2008] EWCA Civ 308. The essential points he made, none of which was in dispute, were that (a) the Immigration Act confers on the SSHD a wide power to decide whether and on what terms people without a right of abode in the UK can enter and remain here; (b) the immigration rules formulated by him determine how he will administer that power; (c) those rules must be laid before Parliament and they take effect unless Parliament votes against them; (d) the SSHD applies the rules when making immigration decisions; (e) these are public law decisions made in accordance with his statutory powers and, as such, are subject to challenge by way of judicial review; and (f) immigration judges have to apply the rules when hearing appeals from decisions of the SSHD.
117. Mr Morton submits that the exercise of this statutory power by the SSHD is governed by section 19B of the RRA, in respect of which the Claimant has no cause of action by reason of section 19D, which excludes from the scope of the RRA discrimination on the grounds of nationality or national origins in carrying out immigration functions. Pursuant to section 19(4) "immigration functions" includes the exercise of functions by virtue of the Immigration Acts.
118. Had the Tribunal properly addressed this submission Mr Morton contends that they would have been bound to conclude, as a matter of law, that any discrimination established by reason of the immigration PCP was not unlawful. The SSHD would be entitled under the rules not to permit the Claimant's half-sister to enter the UK and remain here on a long-term basis to help care for her child.
119. In any event, by virtue of section 57, he submits that the Tribunal had no jurisdiction to entertain any claim under Part III of the RRA, which includes section 19D. The claim based upon the immigration PCP must, therefore, fail and this first ground, if correct, is determinative of this appeal.

Conclusion

120. In considering these submissions it seems to us that Mr Morton's analysis of this claim begins in the wrong place. This is not a claim brought by the Claimant, or her half-sister, in the County Court under Part III of the RRA. Nor does it amount to a challenge to the immigration rules themselves. The claim is brought under Part II, governing discrimination in the employment field, by the Claimant in her capacity as an "employee" in the Army.
121. We agree with Mr Sethi that, for the purposes of this claim, involving indirect race discrimination in employment, it is irrelevant that the immigration PCP identified arose from the operation of the immigration rules; or that those rules have a statutory source; or that they are applied by the SSHD when making immigration decisions, which may or may not be susceptible to challenge by way of judicial review. The Tribunal concluded that the Home Office is the same legal or constitutional entity as the MOD; that they are inseparable for the purposes of this claim; and that the immigration rules were made just as much by the Crown as was the 24/7 PCP. That conclusion is not challenged in this appeal.
122. Section 75 of the RRA provides, so far as is relevant, as follows:

"75 Application to Crown etc

(1) This Act applies-

(a) to an act done by or for purposes of a Minister of the Crown or government department; or

(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,

as it applies to an act done by a private person.

(2) Parts II and IV apply to-

(a) service for purposes of a Minister of the Crown or government department, other than service of a person holding a statutory office; or

(b) service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body; or

(c) service in the armed forces,

as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service.

…

(8) This subsection applies to any complaint by a person ('the complainant') that another person-

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of section 4; or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant,

if at the time when the act complained of was done the complainant was serving in the armed forces and the discrimination in question relates to his service in those forces.

…

(10) In this section-

(a) 'the armed forces' means any of the naval, military or air forces of the Crown …"

123. The correct starting point in this case is, therefore, that the RRA applies to acts done by the Crown in the same manner as it applies to acts done by a private person. It applies to Crown employment, including service in the armed forces; and, in the case of Crown employees, references to a contract of employment are to be taken as references to their terms of service. This Claimant was able to bring her claim under the RRA pursuant to section 75(8), which extends the provisions of section 4 in Part II (discrimination by employers) to a member of the armed forces if, as was the case here, the discrimination complained of occurred when she was serving and relates to her service in those forces.
124. In passing both the RRA and the Employment Tribunals' Act 1996, Parliament gave jurisdiction to Employment Tribunals to determine complaints of direct and indirect race discrimination in the employment field, including complaints made by those serving in the armed forces of the Crown.
125. In our judgment Parliament did not intend to take away that jurisdiction, if the PCP identified in an indirect discrimination claim is found to arise from the exercise of functions by another Government department. If Parliament had so intended it would have said so expressly, as it did in relation to Part III claims, with the introduction of sections 19B and D, as a result of amendments made to the legislation in 2000.
126. We therefore reject Mr Morton's submission that, to allow this Claimant to bring a claim to the Employment Tribunal under Part II, would circumvent the RRA. His reference to observations of Blake J in Limbu and Others v SSHD and Others [2008] EWHC 2261 (Admin) as to section 19D providing a complete answer to the argument, on a judicial review, that Gurkha claimants were discriminated against under the RRA, in our view advances his case no further in respect of this claim.
127. This Claimant, in our judgment, was in the right place and was not precluded by any provision in the RRA from relying on the immigration PCP as part of her complaint. The submission that section 19D prevented her from bringing her claim of indirect race discrimination, and that the Employment Tribunal lacked jurisdiction to determine it is, in our view, unsustainable.

Ground 2

128. Mr Morton submits, if he is wrong in relation to Ground 1, that the Tribunal erred in concluding that the immigration PCP did not have to be applied to the Claimant by her employer acting in its capacity as employer.
129. He developed that submission as follows. By virtue of Section 75(8), a soldier in the Army can complain about an act of discrimination in the employment context, if the discrimination relates to his/her service in the Army. Section 4(2) imposes a duty not to discriminate upon a person in his capacity as an employer, but in the present case the MOD did not apply any PCP itself. Rather, they simply reflected the immigration rules and their effect in their own guidance. The immigration PCP represents the law of the land and the application by the Home Office of the immigration PCP does not, therefore, "relate to service" in the armed forces within the meaning of Section 75(8).
130. Even assuming that the Home Office and the MOD, as emanations of the Crown, are the same legal entity, it does not follow, he submits, that their functions are to be regarded as indivisible. Immigration functions are public law functions not exercised by the Home Office in its capacity as employer. When exercising those functions the SSHD must exercise them consistently, and Parliament has excluded the immigration functions which are relevant in this case from the protection of the RRA.
131. Further, he submits that the status of the Crown is unique. The Home Office does not exercise effective control over the MOD or vice versa. The Tribunal's analogy between the various public and private law functions of different emanations of the Crown and an employer and its parent company, or principal and agent, is misconceived. The MOD has no choice but to apply the immigration rules. It is not itself liable in law for the acts or omissions of another Government department. By section 17(3) Crown Proceedings Act 1947 and CPR 66, civil proceedings against the Crown must be instituted against the appropriate authorised department and the Home Office and the MOD are separate and distinct authorised departments.

Conclusion

132. We have referred already to the provisions of section 75 of the Act. Section 4(2) provides as follows:

"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee –

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment."

133. This Claimant complained of indirect discrimination and the relevant provisions are those set out at section 1(1A) RRA as follows:

"A person … discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but –

(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,

(b) which puts that other at that disadvantage, and

(c) which he cannot show to be a proportionate means of achieving a legitimate aim."

The provisions referred to in subsection (1B) include those in Part II relating to employment.

134. In our judgment, all that this Claimant had to show was that the Army (i.e. the Crown) had committed an act of discrimination against her, which was unlawful by virtue of section 4; that, at the time of that act, she was a serving soldier; and that the discrimination related to her service in the Army. In this case, therefore, she had to show that the immigration PCP was applied to her by the Crown, by whom she was "employed"; that the provisions of section 1(1A)(a)-(c) were met; and that she was thereby subjected to a detriment.
135. We consider that it would be an unnecessary and impermissible gloss on the words of the statute to require, as a further precondition, that the PCP had to be applied to the Claimant by her employer "acting in its capacity as employer". The Tribunal were therefore correct in finding as they did on this point.
136. In our view it matters not, for the purposes of her claim of indirect race discrimination, whether the Claimant named the particular Government department as her employer. The unchallenged finding of the Tribunal was that the Home Office and the MOD are the same legal entity for this purpose, and the Claimant was in the service of the Crown, by whom the PCP was applied.
137. We note that section 75(8)(b) extends the provisions of section 32 (liability of employers and principals) and section 33 (aiding unlawful acts) to members of the armed forces, if the discrimination in question relates to their service in those forces. This, in our view, is what the Tribunal were referring to at paragraphs 133-134 of their first judgment, when drawing an analogy with parent and subsidiary companies and agency situations.
138. It follows that we reject Mr Morton's submissions in relation to this ground of appeal. However, it seems clear to us from the Tribunal's findings that the immigration PCP could in any event be said to have been applied by the MOD in its capacity as this Claimant's "employer" within section 4 and section 1(1A). Whilst Army policy was obviously based on the immigration rules, paragraph 31 of the Army Unit Guide made it clear that the Army was both incorporating this rule into their own policies and practices, and applying it themselves to serving Foreign and Commonwealth soldiers. Mr Morton's submission that the MOD effectively had no choice in the matter is undermined in this case by the Tribunal's clear findings on justification; and the steps they considered could and should have been taken by the MOD in order to alleviate or eradicate the disadvantage caused to this Claimant, as had happened in other situations in the past, following liaison between the Army and the UKBA.

Ground 3

139. Mr Morton submits that the Tribunal erred in concluding that the immigration PCP was applied to the Claimant, as it must be in accordance with section 1(1A). He contends that the PCP was not applied to the Claimant at all but, rather, that it had the potential to be applied to her sister if she had applied to enter the UK as a carer for the Claimant's child. The Tribunal, therefore, confused the application of this PCP with its potential consequences if it had been applied. The fact that it had the effect of preventing the Claimant from adopting her preferred method of childcare is irrelevant.

Conclusion

140. There is some dispute as to whether this point was argued below, before the Tribunal promulgated their first judgment. In view of the unusual procedural history, however, we shall deal with it in this appeal. We do so shortly. In paragraph 37.3 of their second judgment (see paragraph 75 above), the Tribunal gave reasons for their earlier finding of fact, which they considered had not then been in dispute, namely that the immigration PCP was applied to this Claimant.
141. In rejecting Mr Morton's submissions they concluded that the immigration PCP was applied to and impacted upon this Claimant both directly and indirectly. They found that it had direct impact because the immigration PCP was adopted by the MOD, incorporated into Army policy and used by the Commanding Officer as the reason that she could not bring her sister to the UK to act as her child carer. The Tribunal referred back to various paragraphs in their first judgment, where these matters had been dealt with and relevant findings made.
142. This finding was clearly open to them on the evidence and it seems to us to be unimpeachable. There is therefore no necessity for us to go on to consider the points that Mr Sethi raised in argument, in the alternative, as to whether the concept of "associative discrimination", referred to in the context of disability discrimination in Coleman v Attridge Law [2008] IRLR 722 ECJ, should apply also under the RRA where a PCP is applied to a third party, but the disadvantage is suffered by the claimant employee.

Ground 4

143. Mr Morton submits that the Tribunal erred in its identification of the relevant pool for the purposes of comparison, in relation to the immigration PCP. In determining that the relevant pool was those of Vincentian national origin and of British national origin in the British Army, who are or may become single parents, he submits that the Tribunal erred in excluding from that pool all those soldiers of non-British and non-Vincentian national origin.
144. Acknowledging that his submissions as to the correct pool "have moved over time", and that this pool is different from that he was advocating as correct before the Tribunal, Mr Morton now contends before us that the correct pool should include all those affected by the PCP. It should, therefore, include all soldiers in the British Army who are or may become single parents, regardless of their national origin. By excluding all the other non-British and non-Vincentian soldiers he submits that the Tribunal effectively, and erroneously, predetermined the answer.

Conclusion

145. Pool selection in cases of indirect discrimination has troubled the Courts and Tribunals for years. As the Court of Appeal recently observed, no universal principle of law dictates what the pool should be in any particular case. In Grundy v British Airways Plc [2008] IRLR 74, when considering the mirror provisions under the SDA, Sedley LJ, with whom Waller and Carnworth LJJ agreed, said this at paragraph 27:

"The correct principle, in my judgment, is that the pool must be one which suitably tests the particular discrimination complained of: but this is not the same thing as the proposition that there is a single suitable pool for every case. In fact, one of the striking things about both the race and sex discrimination legislation is that, contrary to early expectations, three decades of litigation have failed to produce any universal formula for locating the correct pool, driving Tribunals and Courts alike to the conclusion that there is none."

and then at paragraphs 30-31:

"The dilemma for fact-finding Tribunals is that they can neither select a pool to give a desired result, nor be bound always to take the widest or narrowest available pool, yet have no principle which tells them what is a legally correct or defensible pool.

…

Rutherford (No. 2) seems to me to be a striking illustration of Lord Nicholls' proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic. In discrimination claims the key determinant of both elements is the issue which the Claimant has elected to pose and which the Tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested. Provided it tests the allegation in a suitable pool, the Tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen. We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of 'looking at' a smaller pool for some unspecified purpose short of determining the case."

Referring in paragraph 33 to the requirement for a 'like with like' comparison pursuant to section 5(3) of the SDA, Lord Justice Sedley continued, referring to the pool:

"It needs to include, but not be limited to, those affected by the term of which complaint is made, which can be expected to include both people who can and people who cannot comply with it."

146. In recent years this Appeal Tribunal has also advocated a more flexible and less mechanistic approach to an assessment of the sufficiency of disparity. In Chief Constable of Avon and Somerset Constabulary v Chew [2001] EAT/503/00, for example, the EAT held that it was not always necessary to rely on statistics, and that the Tribunal can and should take a flexible approach to disparity, having regard to the circumstances of the case and the underlying purpose of the legislation. We agree. In that case, in the context of sex discrimination, it was held, for example, that the Tribunal was entitled to consider whether the objectionable provision was inherently more likely to produce a detrimental effect, which disparately affected a particular sex. We agree that Tribunals are entitled to adopt such an approach in appropriate cases, depending on the facts.
147. In reaching their decision as to the appropriate pool in a particular case, a Tribunal should undoubtedly consider the position in respect of different pools within the range of decisions open to them; but they are entitled to select from that range the pool which they consider will realistically and effectively test the particular allegation before them.
148. In the present case, in our view, the Tribunal conducted this exercise with considerable care. They fully explained their reasons for rejecting other pools, including the pool which was at that stage being advanced as appropriate by Mr Morton, and for selecting the pool they did, namely those of Vincentian national origin and of British national origin in the Army who are or may become single parents.
149. In our judgment, given the nature of the allegation in this case, the Tribunal chose a pool which was logical, permissible and effective for the purpose of testing the particular allegation of indirect race discrimination. It was not, in our view, incumbent upon them to select the very wide pool now being advanced as correct by Mr Morton, if the pool they selected fulfilled that purpose.
150. The pool suggested as correct by Mr Morton would require the Claimant to show that the immigration PCP put British Army soldiers of Vincentian national origin at a particular disadvantage, when compared with all those of non-Vincentian national origins. As the Tribunal pointed out at paragraph 163, this argument breaks down when you take into account the fact that many of the non-Vincentians, and probably most Foreign and Commonwealth soldiers, are inherently more likely to be disadvantaged by the PCP; whereas the group of people who would not be disadvantaged would include those of British national origin. The Tribunal tested the correctness of that approach by considering different patterns of indirect eye colour discrimination amongst the population, to which we need not now refer.
151. In our view, the pool they selected reflected the realities of this Claimant's particular complaint rather than, as Mr Morton suggests, predetermined the answer. The statutory provisions require the comparison to be between the Claimant's class and "other persons" in the same or similar relevant circumstances. We consider that the Tribunal's reasoning at paragraphs 166-167 discloses no error of law in selecting, as the appropriate pool for comparison on the evidence in this case (including the statistical evidence as to Army membership), those soldiers of Vincentian national origin and those of British national origin in the Army who are or may or become single parents.

Ground 5

152. Mr Morton submits that the incorrect selection of the members of the pool led the Tribunal into further error, in concluding that the immigration PCP put people of the Claimant's national origin at a particular disadvantage, when compared with other persons in the pool.
153. He contends that, in order to find a "particular disadvantage" within the meaning of section 1(1A) the Tribunal must be satisfied on the evidence that a PCP puts people of the Claimant's national origin at that disadvantage.
154. There was, he says, no such evidence in this case since the Claimant was in a category of one, and the Tribunal took the view that any non-British single parent soldier was likely to be similarly disadvantaged. By definition, therefore, the disadvantage was not on the ground of the Claimant's national origin.
155. Further, the key factor in determining whether a Vincentian single parent is placed at a particular disadvantage is the nationality of the proposed carer that each parent wishes to rely upon for help. It was wrong simply to assume, without evidence, that a Vincentian soldier was more likely to be disadvantaged than others in this respect.
156. Mr Morton referred us to various passages in MOD v MacMillian EATS/0003/04, a case involving indirect sex discrimination, where the EAT, referring to the need for evidence in such circumstances, stated that:

"… the failure on the part of the Respondent as Applicant, to lead any evidence of any nature which would suggest other women in full-time employment in the Navy were suffering the same or equivalent detriments that she claims, leaves her in a category of one as a matter of evidence, and not, therefore, creating a situation which enables even an inference of discrimination to be drawn …"

157. Referring to similar observations made in London Underground Ltd v Edwards (No.1) [1995] ICR 574 (at page 582E) Mr Morton contends that, even if the Tribunal selected the right pool and there were more soldiers from St Vincent affected by the immigration PCP than British soldiers, it does not follow, without evidence, that they would be particularly disadvantaged by it.

Conclusion

158. Mr. Morton's submission that this Tribunal simply made assumptions as to disadvantage, without evidence, is, in our view, misplaced.
159. It is clear that, in arriving at their decision as to particular disadvantage, the Tribunal took into account expressly, in addition to the Claimant's own evidence, the statistical evidence before them as to the different national origins of members of the British Army, including those recruited from St Vincent, and the evidence relating to recruitment campaigns carried out by the Armies in Commonwealth countries, including St Vincent. They found, as they were entitled to, that the extended families of those of Vincentian national origin, which would therefore include those who would be their potential child carers, were more likely to be foreign nationals unable to visit the UK for more than six months.
160. They gave consideration, at paragraph 174, to the possibility that some single parent soldiers of Vincentian national origin might have potential carers with a right of abode in the UK; and, conversely, to the possibility that some soldiers of British national origin might have potential carers who were foreign nationals.
161. Their conclusion, as a matter of common sense, that the numbers of such people were likely to be small and would not invalidate the comparison within the pool, we regard as unimpeachable. So too is their conclusion that the PCP put people of the Claimant's national origin at a particular disadvantage when compared to other persons in the pool, which we have already upheld as a valid pool in this case. This ground of challenge therefore fails in addition.

Ground 6

162. Mr Morton contends that the Tribunal erred in conflating the two separate PCPs which they found had been applied to the Claimant in this case. He submits that it was wrong to consider the combined effect of two PCPs alleged to discriminate indirectly on the separate and distinct grounds of sex and race. Either one or the other, or both independently, are indirectly discriminatory or they are not.
163. In any event, once this Tribunal had found that the 24/7 PCP was justified and, therefore, not unlawful under the provisions of the SDA, it was not open to the Tribunal to consider it further in combination with the immigration PCP, which fell to be considered under the RRA. Mr Morton submits that the Tribunal's approach leads to the "absurd conclusion" that a female single parent soldier of Vincentian national origin has been discriminated against on the ground of her sex, whereas a female single parent soldier of British national origin, in identical circumstances, would not have been discriminated against on the ground of her sex. In this case, therefore, the question whether there had been indirect sex discrimination turned on the national origin of the Claimant.

Conclusion

164. In our view, however, this submission fails to recognise the cause of the particular disadvantage to which women in this Claimant's position and the Claimant herself were found to be subject. The female single parent soldier of British national origin could never have been placed in the "identical circumstances" to which Mr. Morton refers. His submission is based, in our view, on an incorrect analysis of this Tribunal's reasoning.
165. In general, the nature of discrimination is such that it cannot always be sensibly compartmentalised into discrete categories. Whilst some complainants will raise issues relating to only one or other of the prohibited grounds, attempts to view others as raising only one form of discrimination for consideration will result in an inadequate understanding and assessment of the complainant's true disadvantage. Discrimination is often a multi-faceted experience. The Claimant in this case considered that the particular disadvantage to which she was subject arose both because she was a 24/7 female soldier with a child and because she was a woman of Vincentian national origin, for whom childcare assistance from a live-in Vincentian relative was not permitted. The Tribunal recognised that this, double disadvantage reflected the factual reality of her situation.
166. As the Tribunal correctly observed, section 5(3)(a) of the SDA requires that a comparison of the cases of persons of different sex under Section 1(1) (direct discrimination) or (2) (indirect discrimination) must be such that the relevant circumstances in the one case are the same or not materially different in the other.
167. In this case, therefore, when considering the 24/7 PCP in the context of the Claimant's allegations, the relevant circumstances of the women and the men in the pool, for the purposes of this 'like for like' comparison, were that they were men and women soldiers in the British Army whose potential child carers were foreign nationals. This, in our view, is what the Tribunal were deciding at paragraph 152. In this pool the women soldiers were at a particular disadvantage because they were more likely than the men to be single parents requiring assistance with childcare, as the Tribunal found at paragraph 153. There is no challenge on this appeal to the Tribunal's identification of this pool for the purposes of the section 1(2)(b)(i) SDA comparison.
168. This is what we understand this Tribunal to mean, in referring to the combined effect of the 24/7 and the immigration PCPs when considering the claim of indirect sex discrimination.
169. Applying the same reasoning, the mirror requirement in section 3(4) of the RRA, that a comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1A) must be such that the relevant circumstances in the one case are the same, or not materially different in the other, led the Tribunal to identify the pool as they did at paragraph 177: namely, those of Vincentian national origin and of British national origin in the Army who are or may become single parents. Within that pool the Vincentian soldiers, (who the Tribunal found would also be predominantly women), were put at a particular disadvantage, because their extended families and, therefore, their potential child carers, were more likely to be foreign nationals, unable to stay in the UK for more than six months.
170. This conclusion accurately reflected, in our judgment, the particular disadvantage caused to women of Vincentian origin in the British Army who were single parents. There is no challenge to the Tribunal's conclusion that what the Tribunal have described as the combined effect of these PCPs put this Claimant to that disadvantage.

Ground 7

171. Mr Morton raised this ground of appeal in his second Notice as an alternative to his first ground if we were to conclude, as we do, that the immigration PCP fell to be considered within Part II of the RRA, and that the Tribunal had jurisdiction to determine it.
172. He submits that any race discrimination that arose by virtue of the operation of the immigration rules was not unlawful by reason of the provisions of section 41 RRA, pursuant to which acts done under statutory authority are not unlawful.
173. This point was not specifically argued before the Employment Tribunal but, to assist the parties, we shall deal with it here; and we do so shortly because we agree with Mr Sethi that this ground is misconceived.

Conclusion

174. It is not in dispute before us that the Tribunal decided the Claimant's indirect race discrimination claim on the basis of the wording of the RRA as amended, effective as from 19 July 2003. Section 1(1A) refers to the application to a person of a PCP, which is or would be applied equally to persons not of the same race or ethnic or national origins as that person. The original wording in section 1(1) referred to the wider concept of a "racial group", which included colour and nationality in the definition of such a group.
175. With the arrival of Council Directive 2000/43/EC in 2003, the "statutory authority" defence afforded under section 41 was considered to be contrary to the Directive. Thus section 41(1A) was added, providing that Section 41(1) "does not apply to an act which is unlawful on grounds of race or ethnic or national origins by virtue of a provision referred to in Section 1(1B)". That includes acts relating to employment referred to in Part II.
176. This amendment was introduced by regulations, and could therefore apply only to those areas of discrimination covered by the Directive, that is, discrimination on the grounds of race or ethnic or national origins. The defence therefore continues to apply (in the employment field) to discrimination on the grounds covered by the Act, but not the Directive, that is colour or nationality.
177. Recognising the force of these points Mr Morton sought to argue that, on a correct analysis, the immigration PCP was applied not to the Claimant, but to her half-sister; and that any discrimination against her on the ground of her nationality would have arisen pursuant to statutory authority and would not have been unlawful.
178. For the reasons we have set out in relation to appeal ground 3, however, the Tribunal were entitled to find that the immigration PCP was in fact applied to the Claimant throughout her service in the Army. This alternative ground of appeal therefore fails.

Ground 8

179. In relation to the SDA claim Mr Morton also sought to challenge, as erroneous, the Tribunal's conclusion in their first judgment, that the 24/7 PCP and the immigration PCP put women at a particular disadvantage when compared with men. He did so on the basis that, even if it was permissible for the Tribunal to consider the combined effects of both the 24/7 and immigration PCPs, they erred in simply assuming that women whose potential child carers were foreign nationals were at a particular disadvantage, compared with men in the same relevant circumstances.

Conclusion

180. As Mr Sethi points out however, this ground of appeal, raised for the first time in the MOD's second Notice of Appeal, seeks to challenge the Tribunal's findings at paragraphs 152-155 of their first judgment. As such, the appeal on this point is out of time and we therefore have no jurisdiction to determine it.
181. Even if we had, we regard it as unarguable. There is no challenge to the pool identified for the purposes of comparison, nor to the finding that the Claimant was put at the particular disadvantage identified. For the reasons we have already given above, in relation to appeal ground 5, there was ample evidence in this case to enable the Tribunal to find that women in the pool selected were put at a particular disadvantage, compared with the men.

Ground 9

182. The final ground of appeal relates to the Tribunal's conclusions on the issue of justification for the immigration PCP. Whilst accepting that the question whether the MOD has shown that PCP to be a proportionate means of achieving a legitimate aim is essentially a matter of fact for the Tribunal, Mr Morton nevertheless submits that the Tribunal erred in law in their approach to this issue and in their conclusions upon it.
183. He submits, essentially, that they asked themselves the wrong question, asking whether the failure to relax immigration policy was justified, rather than whether the immigration PCP itself was justified; that they answered that incorrect question by reference to their own expectations and as to what they considered was foreseeable; that they purported to redraft the immigration rules and determine where the line should be drawn, and in so doing purported to usurp the authority of Parliament; that they failed adequately to address the MOD's submissions that they were justified in ensuring that people who were not themselves subject to immigration controls (such as this Claimant) should not be treated more favourably than those non-service personnel who are; that they erred in deciding that the mere possibility that others may have been effected enabled them to conclude that the application of the PCP was not justified; that they failed to have any regard to the consequences of relaxation of immigration policy of the kind they envisaged; and that they failed to provide adequate reasons for their decision on this issue.

Conclusion

184. It is not in dispute that the burden of proving justification rested upon the MOD. Nor is it in dispute that the Tribunal have a broad discretion, in deciding whether on the evidence the PCP applied has been shown to amount to a proportionate means of achieving a legitimate aim. Mr Morton accepts this and acknowledges, therefore, that this Appeal Tribunal should be slow to interfere with their decision.
185. On the evidence they heard this Tribunal found as a fact (see paragraphs 32-33) that it was foreseeable both that the persons recruited by the Army could become single parents during their army service; and that, if that occurred, someone in the position of this Claimant would have difficulty in arranging childcare, unless a member of her extended family and a foreign national could live with her in the SFA.
186. They found as a fact at paragraph 34 that, notwithstanding this, the Army failed to make appropriate arrangements to deal with this eventuality, either by providing proper childcare provision or by taking any steps to secure a relaxation of the relevant immigration policy in the Claimant's case, to enable her sister to provide live-in childcare at the SFA.
187. At paragraph 21 of their second judgment the Tribunal found, on the evidence they heard, that this latter approach could have been achieved either by seeking to change the policy and rules themselves, or by securing an immigration policy concession within the LOTR provisions, as had been successfully achieved in other, comparable cases. Neither of these steps was taken, either at the time of the Claimant's recruitment, or when a good opportunity to take them presented itself in 2007. We reject Mr Morton's submission that this Tribunal failed adequately to address the arguments advanced on these issues on behalf of the MOD. At paragraphs 37.1-37.7 of their second judgment this Tribunal considered his submissions in detail and rejected them for the reasons there set out.
188. Recognising that the immigration PCP pursued the legitimate aim of controlling the UK's borders and restricting entry to this country by non-nationals, the Tribunal nevertheless considered that, having regard in particular to steps taken and concessions obtained in other comparable situations, its continued application to this Claimant in the circumstances of this case had not been shown to be a proportionate means of achieving that aim, in relation to the Claimant's service in the Army.
189. We end, essentially, where this judgment began. The essence of this Claimant's challenge was not the immigration rules themselves, but rather the adoption and application of them to the Claimant through the MOD's own policies, as they were applied to a serving member of the armed forces. It is this fundamental mis-characterisation of the Claimant's case, in our view, which lies at the heart of the MOD's appeal. The Tribunal's approach did not amount to an attempt to usurp Parliament's authority and redraft the immigration rules. Rather, they restricted their consideration of the issue, as required by the legislation, to the extent to which the immigration PCP they found was applied to this Claimant throughout her service in the Army had been shown, on the evidence in this case, to be a proportionate means of achieving what they recognised to be a legitimate aim.
190. We can identify no error of law in the Tribunal's reasoning or in their approach to the question of justification and there is, therefore, no basis upon which the EAT could interfere with their decision upon it.
191. For all these reasons, this appeal is therefore dismissed.