United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2012/0161_11_3003.html
Cite as: [2011] UKEAT 161_11_3003, [2011] UKEAT 0161_11_3003

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Appeal No. UKEAT/0161/11/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 23 September 2011

Judgment handed down on 30 March 2012

Before

THE HONOURABLE LADY SMITH

MRS R CHAPMAN

MRS L S TINSLEY

MR J ITESHI APPELLANT

THE GENERAL COUNCIL OF THE BAR (THE BAR COUNCIL) RESPONDENT

JUDGMENT

APPEARANCES

For the Appellant

MR GARY MORTON

(of Counsel)

(Free Representation Unit)

For the Respondent

MS ALISON PADFIELD

(of Counsel)

Instructed by:

Berrymans Lace Mawer Solicitors

Salisbury House

London Wall

London

EC2M 5QN

SUMMARY

RACE DISCRIMINATION

Direct

Discrimination by other bodies

Indirect race discrimination. Tribunal had not erred in concluding that section 12 Race Relations Act did not apply to the PCP relied on (rule imposed on barristers’ chambers re: funding of pupillages). Further, no evidence of discriminatory effect. Claim misconceived.

THE HONOURABLE LADY SMITH

Introduction

1. This is a race discrimination claim. Mr Iteshi has been unable to secure a pupillage in a barristers’ chambers. He attributes his failure to do so to a rule imposed on barristers’ chambers by the Respondent, in 2003, that all pupillages require to be funded and asserts that the rule is indirectly discriminatory. London Central Employment Tribunal, Employment Judge Ms J Wade, found that the Claimant was not indirectly discriminated against on grounds of race, by a judgment registered on 19 March 2010, and he now appeals against that judgment.

2. We will, for convenience, continue to refer to parties as Claimant and Respondent. The Claimant represented himself before the Tribunal but was represented by Mr Morton of counsel before us. The Respondent was represented by Ms A Padfield of counsel before the Tribunal and before us.

Background

The Claimant’s attempts to secure a pupillage

3. On the findings of the Tribunal, the relevant background can be summarised as follows. The Claimant is black African, having been born and educated in Nigeria. He gained a “good degree” before coming to the UK and had trained as a lawyer. He wished to practise as a barrister and started to apply to barristers’ chambers in London for pupillages in 2006 – the Tribunal found that he did not seem to have applied to chambers outside London. He completed the bar vocational course in 2007. In total he made about 150 applications but did not receive any interviews. Pupillage is a compulsory part of a barrister’s training and is a pre-requisite to being entitled to practise.

4. Since 2008, he has made over 200 applications for other jobs (case worker/ administrative roles), received only about 5 interviews, and has not been successful in finding employment in the legal field.

5. The Claimant sought unfunded pupillages, also without success.

The Pupillage funding system

6. The Respondent has regulatory functions and it exercises those functions through its Bar Standards Board (‘BSB’), which was established in 2006. At the start of his or her pupillage, the individual pupil must register with the BSB. If, having completed their pupillage, they are successful in obtaining a tenancy in a set of barristers’ chambers, they require to apply to the BSB for a practising certificate and cannot practise as a barrister until they have been provided with one. Whilst it is a pre-requisite to the issuing of a practising certificate that the applicant has completed a period of pupillage, the question of whether or not it was funded or unfunded is not relevant. Whilst the norm is, as we explain below, that pupillages are funded, there are circumstances in which they may be unfunded. So far as pupillage and the issuing of a practising certificate is concerned, the requirement is simply that the applicant has completed a pupillage.

7. Prior to 2003, there was no rule that pupil barristers required to be paid. Pupillages were commonly unfunded and a pupil required, accordingly, to have some private means of financial support. By contrast, trainee solicitors were paid. There was a growing concern by members of the Bar that there was not a ‘level playing field’ for pupils from low socio-economic backgrounds, including those from black and minority ethnic groups (“BME’s”), it being common ground between parties that there were and are a large and disproportionate number of BME’s in low socio-economic groups. It was proposed that a rule be introduced to require all barristers’ chambers to fund pupillages. As the Tribunal found, at paragraph 3.8:

“3.8 When the Regulations were passed in 2003 the Race Relations Committee of the Bar Council supported this move as in the interests of black and minority ethnic members of the Bar. It saw there was a need to offer opportunities to those who could not afford otherwise to undertake a pupillage.”

8. In 2003, the respondent promulgated the “Pupillage Funding and Advertising Requirements”, the terms of which included (with our underlining added):

“1. The members of a set of chambers must pay to each non-practising chambers pupil……

2. The members of a set of chambers must pay to each practising chambers pupil……….

3. The members of a set of chambers may not seek or accept repayment from a chambers pupil….”

and a sum for the funding of pupils was specified which, as at 2003, was a total of £10,000 for the year of pupillage split into an actual payment of £5,000 over the first six months and, in effect, underwriting the pupil’s earnings for the second six months (pupils being able to earn fees during the second six months of pupillage) to the extent of a further £5,000.

9. It is open to individual sets of chambers to apply for a waiver of the funding rule and the Respondents may, in their discretion, grant such a waiver. For example, a set of chambers which is able to show that the funding of pupillages would, given their particular financial circumstances, be unduly onerous, may be able to secure a waiver. Reference was made before the Tribunal to chambers outwith London perhaps being able to demonstrate that they fell within that category.

10. The introduction of those regulations followed consideration by the Respondents of a large number of reports from a number of working parties which had carefully examined and weighed up the pros and cons of the introduction of such rules and had, ultimately recommended their introduction.

11. The Office of Fair Trading approved the compulsory funding system since although it restrained chambers’ ability to offer unfunded pupillages, it was justified by reason of its purpose being to ensure equality of opportunity irrespective of the means of potential applicants.

12. Since 2003, there has been an increase in the number of BME pupils. Statistics show that in the year prior to 2003, 19.5% of pupils were from BME groups whereas by 2007/2008, that proportion had increased to 25.3%.

13. So far as black Africans are concerned, the Tribunal found, at paragraph 3.11:

“ …from the information we have seen it appears that there have been less black African people obtaining pupillages between the years 2004 to date than in 2000/2001. However the information that we have is patchy and in our view unreliable. For example, we do not know what the statistics were before 2001. More crucially, we do not know what effect withdrawal of unfunded pupillages has had on the statistics. That is because there are no statistics showing the breakdown by colour/ethnic origin of those undertaking unfunded pupillages……..statistics are of little help. Applying our general knowledge we would expect that the dramatic reduction in unfunded pupillages would benefit black Africans in the same way as it has benefited people from other ethnic minorities.”

14. The reference by the Tribunal to “2004 to date” is a reference to the period 2004 – 2008, as is evident from the statistical documents before them (the Claimant’s claim having been presented in March 2009). Thus, so far as black Africans were concerned, the only cogent potentially relevant fact before the Tribunal was that in a single year, two years prior to the introduction of the funding requirement, more black Africans obtained pupillages than in the years 2004 – 2008. There was no information before the Tribunal regarding the number of black Africans obtaining pupillages in the two years prior to the introduction of the system introduced in 2003 nor about the number of them obtaining pupillages prior to 2000. Nor, as the Tribunal point out, did they have any information about the characteristics of the group that were successful in obtaining unfunded pupillages prior to 2003.

The Tribunal’s reasoning

15. At a Case Management Discussion on 12 June 2009, the issues which were subsequently explored at the full hearing were identified as being:

1.1 Did the Respondent apply provisions criteria or practices contrary to section 1 1A and section 12 of the Race Relations Act 1976 that:

1.1.1 There should be compulsory funding of pupillages;

1.1.2 Only chambers can apply for waivers of the compulsory funding arrangements; and

1.1.3 Unfunded pupillages are only available to individuals who do not intend to practice in England and Wales.

1.2 If so, do any of those provisions put people of the same race, ethnic or national origins as Mr Iteshi at a particular disadvantage when compared with white candidates for pupillage?

1.3 If so, does that provision or provisions put Mr Iteshi at a disadvantage?

1.4 If so, can the Respondent show it to be a proportionate means of achieving a legitimate aim?

16. As confirmed to this Tribunal by the Claimant in an email dated 5 May 2005, his assertion was that he was being disadvantaged specifically as a black African. It was not his case that he was being disadvantaged by reason of being of BME status.

17. The Tribunal dealt with each of the four main issues in turn.

18. Regarding the first issue, the Claimant’s case focussed on the Respondent’s requirement, contained in the 2003 regulations, to the effect that pupillages required to be unfunded. He said that that was breach of section 12 of the Race Relations Act 1976. The Tribunal decided, however, that the funding requirement was not a provision, criterion or practice that was imposed on the Claimant. There were requirements imposed on barristers’ chambers in that regard but no requirements imposed on the Claimant. As explained, with commendable brevity, at paragraphs 6 and 7 of their written reasons, the Tribunal concluded that the rule which the Claimant relied on did not apply to him as an individual; it applied to sets of chambers and section 12 did not apply to the rule.

19. The Tribunal very properly went on and considered the other three issues, lest they were wrong about the first one. They approached the subsidiary three issues on the basis of a hypothesis that the requirement about funding of pupillages was one which was imposed on the Claimant.

20. Regarding the second issue, the Tribunal correctly asked themselves what was the relevant pool for comparison purposes? They determined that it was either all those who wished to take up an unfunded pupillage, would have accepted an unfunded pupillage or simply all of those applying for a pupillage. Their identification of the appropriate pool was not challenged in the grounds of appeal – it was, in our view, appropriate and we do not see that it would have been open to challenge. The Tribunal then concluded that, on the facts, had the requirement complained of been a PCP that was being applied to the Claimant, it had not been shown that there was any particular disadvantage to black Africans. They give six reasons which are clearly explained at paragraphs 11.1 to 11.6 and can be summarised as being that the rule was to assist BME people, that it had been shown that the number of BME people obtaining pupillages had risen since 2003, that they had not been provided with reliable evidence to show that the number of pupillages being offered to black Africans had reduced on account of the 2003 regulations being introduced, that the statistics that were available were based on small samples, that whilst the Claimant had provided evidence about that being the case it was so anecdotal that they gave it no weight and that whilst preliminary findings by a Dr Macey-Dare regarding difficulties experienced by BME lawyers were put in evidence, they made no distinction between BME and black Africans and contained no analysis that indicated that difficulties experienced were on account of discrimination.

21. Regarding the third issue, the Tribunal found that it had not been demonstrated that the hypothetical PCP in fact caused disadvantage to the Claimant. It was not that PCP which was responsible for him failing to secure a pupillage. The Tribunal said:

“12…….Our conclusion is that there are some people who apply for pupillages who unfortunately will never obtain them, and having seen the persistence with which the Claimant has applied for pupillages and the outcomes of his efforts we cannot say that he has suffered a disadvantage from the application of any PCP. In other words, we cannot say that there was a realistic prospect that the Claimant would ever obtain a pupillage whether or not it was unfunded. He seems not to have applied to chambers which could apply for waivers, e.g. chambers outside London or if he did, he was not considered for a pupillage so that not (sic) application for a waiver was made.”

22. Regarding the fourth issue, the Tribunal were satisfied that the rule had a legitimate aim as its purpose, a finding which was not challenged in the grounds of appeal. The legitimate aim of which they were satisfied consisted of the desire to give assurance of funding to those who could not otherwise have afforded pupillage and thus create equality of opportunity. They also observed that the compulsory funding rule assisted with quality assurance since when chambers were required to invest in their pupils they were more likely to give them a good training; that too was a legitimate aim. The Tribunal also considered proportionality, noting that the introduction of the rules followed the weighing up of pros and cons by various working parties who had supported the system and that the level at which funding was set was not such as to make it hard for most sets of chambers to offer pupillages. At paragraph 14, they said:

“It might not be proportionate if the rule deprived a large number of poorer chambers of the opportunity to offer pupillages but when the threshold is set as low as £10,000, to be funded jointly by all of the members of chambers, it is proportionate.”

23. Separately, the Tribunal explained that a repeated theme in the Claimant’s submissions was “Why should anyone tell me that I cannot do a pupillage – who has the right?” and observed, apparently by way of response to that general theme, that not only was it not their job to consider a restraint of trade complaint but that the Office of Fair Trading had approved the system introduced in 2003.

The relevant law

24. The relevant provisions of the Race Relations Act 1976 (which were in force at the time to which the Claimant’s complaint relates) are:

“1. A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but—

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it.

(1A). A person also 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 [or would put] that other at that disadvantage, and

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

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

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

71. (1)Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need—

(a) to eliminate unlawful racial discrimination; and

(b) to promote equality of opportunity and good relations between persons of different racial groups.

Schedule 1A …

The General Council of the Bar of England and Wales, in respect of its public functions.”

25. As is evident from the articulation of the issues at the CMD, the Claimant’s case could not succeed unless he established that the Respondent had imposed on him a PCP that contravened section 12 of the 1976 Act. As was demonstrated in, for example, the case of Patterson v The Legal Services Commission [2004] IRLR 153, s.12 applies, inter alia, where a regulatory body imposes conditions on a person who is seeking authorisation to engage in a profession. Those conditions must not be discriminatory. Thus, for example, in the case of a barrister applying for a practising certificate, if the terms on which the Respondent was prepared to grant a practising certificate were such that a discriminatory requirement was imposed on the applicant – that the applicant be a white male, for instance – it would contravene section 12. This case does not, however, concern any such term nor does it concern the Claimant having applied for a practising certificate.

The appeal

26. When this case passed the sift (at a rule 3(10) hearing) amended grounds of appeal were prepared. They were four in number. Mr Morton addressed us under reference to each of them.

27. First, his submission was that the Tribunal only dealt with the matter of registration of pupillage by BSB and had failed to deal with the role of the Respondent. Mr Morton submitted that the Tribunal had only looked at the functions performed by BSB yet it was the Respondent which had decided to limit the opportunities for unfunded pupillages. The Claimant was challenging their decision, in 2003, to do so. The Tribunal’s approach had, he said, failed to deal with the Claimant’s claim and he was fundamentally entitled to have had them do so. He referred to Patterson as making it clear that s.12 was expressed in very wide terms.

28. In the course of his submissions in support of the first ground of appeal, Mr Morton advised that the Claimant had sought to bring a challenge against the Respondent by way of judicial review. We were provided, by Ms Padfield, with copies of the relevant papers. The application evidently proceeded on the same factual basis and made the same allegations of race discrimination as feature in the present claim. The Claimant was refused leave in the Queen’s Bench Division of the High Court (Administrative Court). In a judgment dated 6 February 2009, Plender J noted the discrimination argument but observed that, on the basis of written material which appears to have matched that which was before the Employment Tribunal in this case, he had not seen any data which convinced him that racial discrimination had occurred as a result of the rule that pupillages were to be funded. Mr Morton did not seek to explain how or why the Claimant considered it appropriate thereafter to proceed with the present claim.

29. The second ground of appeal was that the Tribunal had concluded that the hypothetical PCP would not have been a particular disadvantage to black Africans but that was, it was said, contradicted by the Respondent’s statistics which showed there had been a substantial decline in the number of black Africans obtaining pupillages. As articulated by Mr Morton, the point put was that there was evidence indicating that black Africans had been disadvantaged from 2000/2001 onwards. Mr Morton made passing reference to part of his skeleton which appeared to suggest a challenge to the identification of the relevant pool but we observe that the notified ground did not include any such challenge.

30. He also referred to the reference in the headnote to the case of Edmonds v Lawson QC & Ors [2000] IRLR 391 that:

“…it is estimated that some 43% of all pupillages are either unfunded or funded below the minimum amount recommended by the Bar Council.”

a reference which gives no information about the make-up of that 43% and which, he accepted, related to the circumstances which existed in 1998.

31. The third ground of appeal was, essentially, that the Tribunal had found that they could not say whether or not the Claimant would ever obtain a pupillage whether or not it was unfunded and they had failed to take account of evidence that some applicants with 2:2 degrees had been successful in obtaining pupillages. The implication was that the Claimant had a degree at that level although we note that the Tribunal made no specific finding in that regard. Mr Morton asserted that it was clear that the Claimant might have had a better prospect of obtaining a pupillage had it not been for the funding rule. He referred to a table which showed that between 2004 and 2008, out of 253 applicants with 2:2 degrees who obtained pupillages, 4 of them were black Africans. He did not refer to any table which demonstrated what the position was prior to 2004. Mr Morton also made reference to a document prepared by the Respondent which summarised the responses to a consultation on the proposal which led to the introduction of the new funding system in 2003 and showed that some of the respondents were concerned that it would reduce the number of pupillages that were available.

32. The fourth ground of appeal was that the Tribunal had failed to show that the application of the hypothetical PCP was a proportionate means of achieving a legitimate aim i.e. the aim of creating equality of opportunity. The Tribunal’s error was said to be that they had not balanced that legitimate aim with the disadvantage that was shown to have been suffered by BME, black Africans and the Claimant, all of whom had lost the opportunity to apply for unfunded pupillages. Elaborating on that ground in oral submission, Mr Morton submitted that the Tribunal ought to have looked at matters bearing in mind the wide terms of section 12 of the 1976 Act, and dealt with it, but they had looked at this as being a restraint of trade case. They had done that instead of carrying out the requisite balancing exercise. Separately, Mr Morton made some general submissions which seemed designed to impugn the legitimacy of the Respondent’s aims but, as we have noted, the ground of appeal proceeded on the basis that the aims of the hypothetical PCP were legitimate ones.

33. Finally, Mr Morton referred to s.71 of the 1976 Act and submitted that the Respondent could not fulfil their statutory duty of avoiding discrimination by applying a PCP that pupillages required to be funded.

34. For the Respondent, Ms Padfield resisted the appeal.