United Kingdom House of Lords Decisions

HOUSE OF LORDS

Date: 07.06.1990

	HAMPSON	(APPELLANT)
	v.
	DEPARTMENT OF EDUCATION AND SCIENCE	(RESPONDENTS)

Lord Bridgeof Harwich
Lord Griffiths
Lord Ackner
Lord Lowry

LORD BRIDGE OF HARWICH

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Lowry. I agree with it and for the reasons he gives I would allow the appeal and remit the case to an industrial tribunal for rehearing.

LORD GRIFFITHS

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Lowry. I agree with it and for the reasons he gives I, too, would allow the appeal.

LORD ACKNER

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Lowry. I agree with it and for the reasons he gives, I would allow the appeal.

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

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

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

(2) In this section-

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

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

Section 41

"41(1) Nothing in Parts II to IV shall render unlawful any act of discrimination done-

(a) in pursuance of any enactment or Order in Council; or

(b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or

(c) in order to comply with any condition or requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment.

References in this subsection to an enactment, Order in Council or instrument include an enactment, Order in Council or instrument passed or made after the passing of this Act.

(2) Nothing in Parts II to IV shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of ordinary residence or the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom, if that act is done-(a) in pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown; or

(b) in order to comply with any condition imposed (whether before or after the passing of this Act) by a Minister of the Crown."

The appellant took a full-time two-year initial teacher training course at Grantham College of Education in Hong Kong from 1968 to 1970. She thereby became qualified to teach in Hong Kong and did so for eight years. She then took a further full-time one-year teacher training course at Northcote College of Education, also in Hong Kong, from 197S to 1979 and was awarded by the Hong Kong Education Department a Third Year Certificate with specialisation in the teaching of English. After teaching for another year, she was from 1980 to 1984 an inspector for the Education Department of Hong Kong. During this time she attended Birmingham University for the academic year 1981-82 and there obtained a Diploma in Special Education. In 1984 she came to this country and on 20 February 1985 she applied to the respondent to be recognised as qualified to teach in state schools in England and Wales.

In order to be thus recognised, she needed notification from the Secretary of State that she was a qualified teacher (this is know as the grant of QT status) in accordance with Regulation 13 of and Schedule 5 to the Education (Teachers) Regulations 1982 (S.I. 1982 No. 106) ("the Regulations of 1982"). Regulation 13(1) provided:

"Save in the cases and circumstances specified in Schedule 4, no person shall be employed as a teacher at a school unless he is qualified therefor as mentioned in Schedule 5; and references in this Part to a qualified or unqualified teacher shall, subject to paragraph (2), be construed accordingly."

(Neither Schedule 4 nor paragraph (2) is relevant for present purposes.)

Schedule 5 is headed "Qualified Teachers" and, so far as material, provides:

"1(1) A person shall be qualified to be employed as a teacher at a school for the purpose of Regulation 13 (subject to paragraph (2) thereof) if either:

(a) the Secretary of State being satisfied that he is such a person as is mentioned in paragraph 2, on or after 8 April 1982 he has been notified in writing, by or on behalf of the Secretary of State, that he is a qualified teacher

2. In this paragraph the expression 'approved' means approved by the Secretary of State for the purposes of the sub-paragraph in which the expression occurs.

The persons referred to in paragraph l(l)(a) are any of the following persons:-

(a) a person who has successfully completed a course which-

(i) is for the degree of Bachelor of Education, the Certificate in Education, the Post-graduate Certificate in Education or a comparable academic award of, in each, case, either a university in the United Kingdom or of the Council for National Academic Awards, and

(ii) is approved as a course for the initial training of teachers in schools;

(b) a person who-

(i) has successfully completed a course (whether within or outside the United Kingdom) approved as comparable to a course within subparagraph (a), and

(ii) unless he so completed the course before 1 September 1984, has attained in mathematics and in English the standard required to attain in the subject in question either a grade C in the examination for the General Certificate of Education at ordinary level or a grade 1 in the examination for the Certificate of Secondary Education,

…."

(Paragragh 2 lists four other categories, (c) to (f), which are not relevant either for their own sake or as an aid to the construction or understanding of the material provisions.) The Regulations of 1982 have now been replaced, but nothing turns on this.

The Secretary of State therefore had to decide whether he would approve the course of teacher training completed by the appellant as being "comparable to a course within [paragraph 2(a) of Schedule 5 to the Regulations of 1982]", in which case the appellant would be notified in writing under paragraph l(l)(a) that she was a qualified teacher. But he did not so approve the course and accordingly the appellant was not so notified. Instead she was informed by the respondent that her application was refused on the ground that the Hong Kong course was not comparable to a course within paragraph 2(a$ as it was not a three-year course or of a sufficiently high standard.

The appellant thereupon complained to an industrial tribunal that she had been discriminated against both directly under section l(l)(a) of the Act of 1976 on racial grounds and indirectly under section 1(1)(b), alleging that the Secretary of State had applied to her a requirement which was such that the proportion of persons of the appellant's racial group (which is widely defined in section 3 of the Act) who could comply with the requirement was considerably smaller than the proportion of other persons who could so comply and which was to her detriment. The tribunal dismissed the complaint of direct discrimination and that complaint has not been further pursued. On the complaint of indirect discrimination the tribunal found that the Secretary of State had not applied a "requirement or condition" within the meaning of section1(1)(b) but that in any event the appellant's complaint could not succeed because, even if a requirement or condition was applied, this was done in pursuance of an instrument, namely, the Regulations of. 1982, and the effect of section 41(l)(b) was to render lawful the respondent's discrimination; moreover, the "requirement or condition" was justifiable within the meaning of section l(l)(b)(ii).

On appeal the Employment Appeal Tribunal [1988] I.C.R. 278 held that the industrial tribunal was wrong in deciding that the requirement that the course be a three-year course was not a "requirement or condition", but upheld the decision that section 41(1)(b) applied and that in any event the requirement imposed was justifiable within the meaning of section l(l)(b)(ii).

On further appeal the Court of Appeal [1989] I.C.R. 179 held in favour of the appellant on the question of justifiability under section l(l)(b)(ii), but by a majority (Nourse and Parker L.JJ.; Balcombe L.J. dissenting) dismissed her appeal on the ground that section 41(l)(b) afforded a complete defence: the words "any act of discrimination done ... in pursuance of any instrument made under any enactment by a Minister of the Crown" did not restrict the availability of the defence in section 41(l)(b) to acts done in the necessary performance of an express obligation contained in an instrument but extended to discretionary acts of the Secretary of State in circumstances where he had a positive public duty to exercise his discretion. It was further held that the effect of the Regulations of 1982 was to charge the Secretary of State with the duty of deciding whether or not he should confer qualified teacher status on the appellant and that his decision plainly amounted to an act done by him "in pursuance of" an instrument, namely, the Regulations of 1982 and it accordingly followed that, if that act was discriminatory against the appellant, it was nevertheless rendered lawful by section 41(1)(b). I have gratefully based this summary on the reporter's headnote, which is to be found at pp. 179-180. Balcombe L.J., who dissented, was of the opinion that acts done "in pursuance of any instrument" were to be restricted to acts done in the necessary performance of an express obligation in the instrument and did not extend to acts done in the exercise of a power or discretion conferred by the instrument.

When the appeal came before your Lordships, argument was directed solely towards the meaning and effect of section 41. The respondent expressly did not seek to argue the meaning of the word "justifiable" in section l(l)(b)(ii) of the Act of 1976 and both sides accepted that, if the appellant succeeded, the case would have to go back to the industrial tribunal. What your Lordships are now concerned with is therefore a short point of construction.

Balcombe L.J., at p. 185F, framed the question clearly when, having summarised the respondent's point on section 41, he said:

"This argument, which succeeded below, is incontrovertible if the words 'in pursuance of any instrument' are apt in their context to include, not only acts done in necessary performance of an express obligation contained in the instrument ('the narrow construction') but also acts done in exercise of a power or discretion conferred by the instrument ('the wide construction'). Both constructions ate possible."

Then, having given a judicial example of each interpretation, he observed, at p. 186C:

"While, therefore, both constructions are possible, I accept that the wide construction is the more natural meaning of the words used. I turn, therefore, to consider whether there is anything in the context which leads to an indication that the narrow construction is here correct."

My Lords, I shall have occasion to refer again to the Lord Justice's judgment, with which on the section 41 point I completely agree. Indeed it is only the division of opinion in the Court of Appeal which makes me venture to put the matter in my own way. Before I do so, however, I wish to express my feelings of gratitude (which I am confident are shared by your Lordships) for the assistance which I have obtained from counsel on both sides in considering the problem.

Nourse L.J. said, at p. 195A:

"In one sense any act done by a body or authority which is the creature of statute can be said to be done 'in pursuance of, that is to say under or by virtue of, statute. Although it is obvious that an immunity provision cannot be construed as widely as that without defeating the object of the statute, it is still the case that in conventional legislative usage the expression 'in pursuance of is as apt to be related to an act done in exercise of a specific power as it is to one done in performance of a specific duty."

This observation (with which I respectfully agree) seems to recognise that what Balcombe L.J. described as the wide construction cannot be adopted "without defeating the object of the statute" and is also a reminder that an expression which is prima facie neutral must be looked at in both its immediate and its more remote context.

I have set out above the full text of section 41. It introduces over a wide field, namely the subject matter covered by Parts II to IV of the Act of 1976, as exceptions to the Act's general purpose of outlawing discrimination, five cases in which an act of discrimination shall not be unlawful and in each such case the relevant enactment, Order in Council, instrument, condition, requirement or arrangement may be either pre- or post-Act. In view of the wide sweep of these provisions, the exceptions ought therefore, I suggest, to be narrowly rather than widely construed where the language is susceptible of more than one meaning. The next point which strikes me is that the words "in pursuance of" occur in subsection (l)(a) and (b) and in subsection (2)(a). I take note, too, of the words "in order to comply with" in subsections (l)(c) and (2)(b) and the words "by virtue of" also in subsection (1)®. Even allowing for the variation of expression which may be attributed to the dictates of grammar or style, it seems to me that the phrase "in pursuance of", while not limited to describing an act which is done in order to comply with an enactment etc., is more limited in its meaning than "by virtue of", a phrase with which it could in a different context be synonymous. A dictionary is not by itself the most reliable guide to statutory interpretation, but it serves to remind us of the commonly accepted meaning of pursuance as pursuit, the action of following out a process or the action of proceeding in accordance with a plan, direction or order. In Dobush v. Greater Winnipeg Water District (1945) 2 W.W.R. 371, for example, it was held that "the phrase 'in pursuance of which imports a notion of obligation, is more restrictive than the phrase 'by reason of which is permissive." One tends by this route to arrive at such equivalent meanings as "in compliance with", "in execution of" and "as required by". The inference to be drawn is that, if the discriminatory act is specified in an enactment, Order or instrument, but not otherwise, it is done "in pursuance of" that enactment, Order or instrument and protected by section 41.

It is, however, the consideration of the wider context that demonstrates the need to adopt the narrow construction of the words "in pursuance of", since the wide construction is seen to be irreconcilable with the purpose and meaning of the Act of 1976. Mr. Sedley has most tellingly reviewed for your Lordships several provisions of the Act in order to establish that proposition and Balcombe L.J. accepted, as I now do, the thrust of his argument to the like effect in the Court of Appeal [1989] I.C.R. 179, 186D-187E. I would only summarise the main points:

1. The Act binds the Crown, which, apart from the prerogative, discharges its duties and exercises its powers by virtue of a multitude of statutes and regulations (see sections 75 and 76).

2. The acts not only of the Crown but of local authorities and a large number of statutory bodies, including the governing bodies of some (but not all) universities would achieve virtual immunity under the wide construction.

3. The most important weapons contained in Parts II and III of the Act would be irretrievably blunted and, indeed, would not make sense.

I need not for the present pursue this aspect of the argument, since Nourse L.J., as I have already noted, rejected the wide construction and Parker L.3. said, at pp. 200F-201B:

"It was however submitted by Mr. Sedley, and I quote from his skeleton argument:

'section 41 is limited to acts required to be done by or under statute and does not protect administratively chosen requirements or conditions which represent one of a variety of possible modes of doing those acts. If the chosen mode is the only one reasonably available for the necessary purpose it may be protected by the defence of justifiability not by section 41.'

There were, in the course of argument, some variations of this proposition but the substance remains unaltered, namely, that section 41 only protects acts done in necessary performance of an express obligation contained in an enactment or Order in Council in the case of ' section 41(l)(a) or an instrument in the case of subsection (l)(b). If this limited construction is not adopted it was submitted that there is no stopping place short of a construction which would cover in effect everything done by a body which owes its existence and powers to an enactment so long as what was done was intra vires and such a construction must be rejected both because it would render nugatory other provisions of the Act of 1976 and because it would offend against the principles enunciated in the House of Lords in Bradford Corporation v. Myers [1916] 1 A.C. 242.

I have no hesitation in accepting the submission that the construction mentioned above, referred to by Balcombe L.J. in his judgment, which I have had the opportunity to read in draft, as 'the wide construction' must be rejected. I agree that it is untenable on both the grounds mentioned above. The question which needs to be answered is therefore whether rejection of the wide construction compels acceptance of the very limited construction contended for."

I now turn briefly to section 51 of the Sex Discrimination Act 1975 which is in the following terms:

"(1) Nothing in Parts II to IV shall render unlawful any act done by a person if it was necessary for him to do it in order to comply with a requirement-fa) of an Act passed before this Act; or

(b) of an instrument made or approved (whether before or after the passing of this Act) by or under an Act passed before this Act.

(2) Where an Act passed after this Act re-enacts (with or without modification) a provision of an Act passed before this Act, subsection (1) shall apply to that provision as re-enacted as if it continued to be contained in an Act passed before this Act."

The appellant, relying on the White Paper Racial Discrimination (1975, Cmnd. 6234) and the long title and section 79(4) of the Act of 1976, contended that the intention to harmonise the Sex Discrimination Act with the Act of 1976 would pro tanto be defeated if section 41 of the latter Act did not receive an interpretation similar to that which must be accorded to section 51 of the former. The force of that argument is, however, negatived by the drafting differences and by the fact that section 51 refers only to pre-existing Acts and re-enacted provisions. Where Parliament's avowed object was to achieve harmonisation, the differences noted are all the more striking. I agree with the view of Nourse L.J. [19S9] I.C.R. 179, 195G that no argument of value for the appellant can be founded on section 51 and also with that of Parker L.J., at p. 201G, that section 41(l)(a) and (b) cannot be given the same meaning as section 41(l)(c) or section 51(1) of the Sex Discrimination Act. But these conclusions do not support the respondent's argument for a wide construction of the words "in pursuance of", particularly when one takes into account the wider field of exceptions created by section 41 which, if the respondent's argument were accepted, would greatly enlarge the gap between section 51 and section 41.

One of the respondent's arguments which seems to have commended itself to the majority in the Court of Appeal was that, even assuming the narrow construction to be the right one, the Secretary of State was indeed carrying out a duty imposed on him by the Regulations of 1982 of (1) considering the appellant's application, (2) deciding whether to approve or disapprove her course and (3) giving her notification or not, depending on whether or not he had approved the course. Therefore, it was said, the Secretary of State acted in pursuance of the Regulations, an instrument which he had made under section 27(1) of the Education Act 1980. Nourse L.J. said, at p. 195C:

"It cannot be doubted that his receipt of the applicant's application for qualified teacher status brought the Secretary of State under a specific duty either to approve or to disapprove her teacher training course within paragraph 2(b)(i) of Schedule 5 to the Regulations of 1982. Accordingly, the question previously supposed would only seem to arise if it can be said that the power to give or withhold approval gave the decision the status of an act done in exercise of a specific power. I do not think that it can. A power to give or withhold approval is not a power to give or withhold a decision. It is a power to choose between two decisions, one of which must be made. In substance it is not a power at all. It is a duty to do one or other of two things. Whichever it is that is done will be an act done in pursuance of the Regulations of 1982. On this analysis, confining myself to the terms of section 41, I am of the opinion that the disapproval of the applicant's teacher training course was an act of discrimination done in pursuance of an instrument - the Regulations of 1982 -made under an enactment - the Education Act 1980 - by a Minister of the Crown within section 41(1)(b) of the Race Relations Act 1976."

And Parker L.3. said, at p. 200C:

"Having made the Regulations which cast on him the duty to consider applications and in so doing the duty to consider and decide on certain matters, it is at first sight difficult to see how it could be contended that, when what he did was only to decide the very matters he was obliged to decide, he could be said to have been acting otherwise than in pursuance of the Regulations."

My Lords, I cannot accept this reasoning because it leaves out of account the alleged act of discrimination, which was to decide the appellant's application by reference to a test of acceptability of her teacher training course (in statutory language, "a requirement") which indirectly discriminated against her within the meaning of section l(l)(b)(i) and (iii) of the Act of 1976. That requirement was no doubt applied "in pursuance of" the Regulations of 1982 according to the wide construction, as defined by Balcombe L.J., but it was not so applied according to the narrow construction, under which the requirement must be found in the Regulations as, for example, is true of the courses described in paragraph 2(a)(i) of Schedule 5. On the other hand, the approval of a course as "comparable to a course within sub-paragraph (a)" involved the application of a requirement (whether established "or ad hoc) which was based on administrative practice and discretion and was not a requirement laid down by the Regulations.

Therefore the requirement of a course consisting of three consecutive years' training, assuming that it was discriminatory and also not justifiable under section 41(l)(b)(ii), was not protected by section 41 (1Kb).

There is a sound argument, based on public policy, for drawing the line in this way. I refer to the need and the opportunity for Parliamentary scrutiny. Balcombe L.J. put the matter aptly, at p. 188F:

"I can think of no construction of section 41 intermediate between the wide and the narrow construction which would meet the difficulties considered above, nor was any suggested. Further, there are sound policy reasons for the narrow construction. If an enactment, Order in Council or statutory instrument imposes requirements compliance with which may lead to racial discrimination, those requirements can be debated in Parliament and their justification considered there. Similarly if a Minister of the Crown imposes a condition or requirement compliance with which could lead to racial discrimination - see section 41(l)(c) of the Act of 1976 - he can be made answerable in Parliament for his action. If what is done is not necessary to comply with a statutory requirement, then there can be no valid reason why it should not have to be justified before an industrial tribunal."

And in Savjani v. Inland Revenue Commissioners [1981] Q.B. 458, where the Commissioners' insistence on the production by certain taxpayers of the long form of birth certificate to support a claim was alleged to be discriminatory, Lord Denning M.R. said, at p. 466:

"I can understand the difficulty of the Inland Revenue in dealing with the problem. To what extent should they insist on the production of birth certificates? There is a way out given by section 41(2) of the Race Relations Act 1976: 'Nothing . . . . shall render unlawful any act whereby a person discriminates against another ... if that act is done - (a) in pursuance of any arrangements made ... by or with the approval of . . . a Minister of the Crown ... • If the appropriate Minister of the Crown should think that arrangements should be made for insisting in certain circumstances on the production of a full birth certificate, that could be made perfectly lawful by an arrangement sanctioned by the Minister under section 41. It seems to me that that would be the right way to do it. The Minister should take responsibility for it. He can be asked questions in Parliament about it. That is the way in which the problem can be solved."

(See also per Templeman L.J. at p. 469A.) To adopt the Balcombe principle, if I may so describe it, will mean that racial discrimination is outlawed (or at least needs to be justified under section l(l)(b)(ii)) unless it has been sanctioned by Parliament, whereas, if the respondent's argument were correct, a wide and undefined area of discrimination would exist, immune from challenge save, in very exceptional circumstances, through the medium of judicial review.

The remedies of certiorari, mandamus and prohibition were expressly preserved by section 53(2) of the Act of 1976, despite the general limitation imposed by section 53(1), and, no doubt with a view to allaying any misgivings which might attend the prospect of such widespread immunity as acceptance of the respondent's argument would involve, Mr. Laws, citing Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 and Padfield v. Ministry of Agriculture, Fisheries and Food [1968] AC 997, suggested that judicial review was in any event available as a remedy for perversity and misuse of power. But this would in reality be very inadequate recompense for the loss of the right to complain to an industrial tribunal and the other remedies provided by the Act, because the immunity conferred by section 41 would inevitably preclude adjudication on every complaint of discrimination, except possibly in the rare circumstances envisaged by Mr. Laws.

Turning to the authorities, I have not a great deal to say. A number of cases have been opened and, although I cannot quite accept the equiparation of the words "in pursuance of" with the phrase "in order to comply with", I have found much wisdom in the observations on section 41 of Wood, J., who delivered the judgment of the Employment Appeal Tribunal in General Medical Council v. Goba [1988] I.C.R. 885 and in the course of that judgment successfully disposed of some marginally relevant decisions. Having regard to the different contexts in which the phrase "in pursuance of" occurs, there is little help to be derived from the cases which have been produced to your Lordships. Bradford Corporation v. Myers [1916] 1 A.C. 242 was cited at some length in the judgment of Parker L.J. and both sides have thought fit to rely on it at various stages of the litigation, but I cannot find in this interesting decision on the Public Authorities Protection Act 1893 any real help for either side. I have to say the same of Griffiths v. Smith [1941] A.C. 170, another Public Authorities Protection Act case, the reasoning of which I have found much easier to follow.

Another authority discussed was Ojutiku v. Manpower Services Commission [1982] I.C.R. 661 which reached the Court of Appeal without the section 41 argument being raised. That fact, however, cannot be called in aid by the present appellant. The decision turned on the meaning of the word "justifiable" in section l(l)(b)(ii) of the Act of 1976 and what was said in the Court of Appeal seems to me to merit the closest attention when the appellant's claim comes to be reconsidered. Beyond saying this I consider it inappropriate to discuss an issue which both sides expressly refrained from arguing before your Lordships.

To sum up, the majority in the Court of Appeal rejected the wide construction but did not come down in favour of the narrow construction or, indeed, of any specific alternative interpretation of the words "in pursuance of". They appear, however, to have held that the Secretary of State acted, as no doubt he did, in pursuance of the Regulations of 1982 when he discharged the duty of considering and the further duty of deciding the appellant's application: therefore, they held, his allegedly discriminatory act was protected by section 41(l)(b). It is this reasoning, my Lords, that did not commend itself to Balcombe L.J. and that I find myself unable to accept. In my view it disregards, and has to disregard, the fact that, in order to decide the application one way or the other, the Secretary of State had first to set up and apply a non-statutory criterion the setting up and application of which involved the exercise of his administrative discretion and led to the discriminatory act complained of.

What I would venture to describe as the fallacy of that approach can be recognised when one reflects that almost every discretionary decision, such as that which is involved in the appointment, promotion and dismissal of individuals in, say, local government, the police, the National Health Service and the public sector of the teaching profession, is taken against a statutory background which imposes a duty on someone, just as the Regulations of 1982 imposed a duty on the Secretary of State. It seems to me that to apply the reasoning of the majority here to the decisions I have mentioned would give them the protection of section 41 and thereby achieve results which no member of the Court of Appeal would be likely to have thought acceptable.

My Lords, for all the reasons which I have given, I would allow the appeal and remit the case to an industrial tribunal for rehearing.

Hampson (Appellant) v. Department of Education and Science (Respondents)

JUDGMENT

Die Jovis 7° Junii 1990

Upon Report from the Appellate Committee to whom was referred the Cause Hampson against Department of Education and Science, That the Committee had heard Counsel on Monday the 12th and Tuesday the 13th days of March last, upon the Petition and Appeal of Teresa Lee Ping Li Hampson of 17, Court House Road, Finchley, London N12 7PH, praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 2nd day of December 1988, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as upon the case of Her Majesty's Secretary of State for Education and Science lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 2nd day of December 1988 complained of in the said Appeal be, and the same is hereby, Set Aside; That the Order of the Employment Appeal Tribunal of the 16th day of December 1987 and the decision of the Industrial Tribunal of the 24th day of November 1986 be, and the same are hereby, Set Aside; and That the Cause be remitted to a differently constituted Industrial Tribunal for rehearing on the issue of justifiability: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Costs incurred by her in the Court of Appeal and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.

Cler: Parliamentor: