Hampson v Department of Education and Science
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE NOURSE,LORD JUSTICE PARKER |
| Judgment Date | 02 December 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1202-5 |
| Docket Number | 88/1038 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 1988 |
[1988] EWCA Civ J1202-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE POPPLEWELL)
Royal Courts of Justice.
Lord Justice Parker
Lord Justice Nourse and
Lord Justice Balcombe
88/1038
EAT/43/87
MR. STEPHEN SEDLEY, Q.C. and MR. ROBIN ALLEN (instructed by Messrs. Hodge Jones & Allen) appeared on behalf of the Appellant.
MR. HUGH CARLISLE, Q.C. and MR. TIMOTHY HEWITT (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This is an appeal, with the leave of the Employment Appeal Tribunal, from an order of that tribunal made on the 16th December, 1987 (reported in [1988] I.C.R. 278), whereby it dismissed the appellant's appeal from a decision of the London (South) Industrial Tribunal delivered on the 25th November, 1986 dismissing her complaint of unlawful discrimination against the respondent, the Department of Education and Science ("the Department").
The short facts, which I take from the judgment of the Employment Appeal Tribunal, are these. The appellant, Mrs. Theresa Lee Ping Li Hampson, who is a Hong Kong Chinese woman, was born in 1950. Between 1968 and 1970 she took a two years' initial teacher training course at Grantham College of Education in Hong King. She was therefore qualified to teach in Hong Kong; this she did for a period of eight years. In 1978/1979 she took a third year full-time general teaching course, specialising in English, at the Northcote College also in Hong Kong. In July 1980 she was appointed Assistant Inspector of the Education Department of Hong Kong which post she held until August 1984. It was shortly thereafter that she came to England.
Qualified teacher status is a necessary qualification to teach in state schools in England. Mrs. Hampson applied to the Secretary of State for qualified teacher status. He refused her application.
Thereafter there was some correspondence between her and the Department but it was not until the 22nd October, 1985 that it was fully made clear to Mrs. Hampson the reason why the Department rejected her application. In their letter they wrote:
"As explained in previous correspondence Mrs. Hampson's initial course of training is not comparable to our training because it was only 2 years in length. We cannot regard her subsequent one year course, completed 8 years later, as an integral part of the initial training. When assessing overseas teacher training we also look at the content and standard of the course and we find that, apart from the length of the initial course, the content of the courses Mrs. Hampson completed in Hong Kong does not meet our requirements either."
At the hearing before the industrial tribunal Mrs. Hampson complained of racial discrimination. The complaint was two-fold. First, that there had been direct discrimination and, secondly, that there was indirect discrimination because the Department applied to Mrs. Hampson a requirement or condition which it did not apply or would not apply to persons who were not Hong Kong Chinese and that it was a requirement or condition which satisfied the conditions set out in section 1(1)(b) of the Race Relations Act 1976.
The tribunal after hearing evidence rejected the allegation of direct discrimination, although they found Mrs. Hampson's belief that there had been direct discrimination unsurprising, in view of the inept way in which the Department had dealt with her application. Against that finding there was no appeal.
The industrial tribunal also rejected Mrs. Hampson's claim of indirect discrimination. It was against that decision that she appealed to the Employment Appeal Tribunal and now to this court.
Section 12(1) of the 1976 Act, which falls within Part II of the Act—Discrimination in the Employment Field—provides that it is unlawful for an authority or body which can confer an authorisation or qualification which is needed for engagement in a particular profession to discriminate against a person—
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(a) in the terms on which it is prepared to confer on him that authorisation or qualification, or
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(b) by refusing his application for it.
Indirect discrimination is defined by section 1(1)(b) of the 1976 Act as follows:
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—
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(a)…
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(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—
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(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
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(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
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(iii) which is to the detriment of that other because he cannot comply with it."
It is common ground that if what the Department has done in this case amounts to discrimination against Mrs. Hampson then, unless it is exempt under the provisions of section 41 of the 1976 Act, it is in breach of section 12.
In his very helpful skeleton argument Mr. Sedley, Q.C., counsel for Mrs. Hampson, identified five issues which had arisen before the industrial tribunal in relation to her case of indirect discrimination:
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(1) What requirement or condition was applied to Mrs. Hampson?
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(2) Did that requirement or condition have disparate adverse impact on persons of Mrs. Hampson's racial origin (Hong Kong Chinese) under section l(l)(b)(i) of the 1976 Act?
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(3) By what test should it be considered whether the requirement or condition was justifiable irrespective of Mrs. Hampson's race?
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(4) Applying that test, was the requirement or condition justifiable within section 1(1)(b)(iii) of the 1976 Act?
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(5) Could the Department claim immunity under section 41(1) (b) of the 1976 Act?
On the first issue the industrial tribunal held that the Department's refusal to accept the courses taken by Mrs. Hampson in Hong Kong as comparable to an English course was not to apply to her a requirement or condition, but merely to apply a test or yardstick to measure the comparability of her courses. This part of the industrial tribunal's decision was overruled by the Employment Appeal Tribunal, and although the point was raised again by the Department in its respondent's notice before us, it was abandoned at the hearing. Further, it has always been accepted by the Department that the requirement or condition has a disparate adverse impact on persons of Mrs. Hampson's racial origin.
That leaves for determination issues 3, 4 and 5 as listed above, of which it will be convenient to consider issue No. 5 (immunity under section 41) first, since if the Department has such immunity the other issues do not arise. Both the industrial tribunal and the Employment Appeal Tribunal held that the Department was immune under section 41.
The section 41 defence
Section 41 of the 1976 Act bears the side note "Acts done under statutory authority etc." Section 41(1) provides as follows:
"Nothing in Parts II to IV 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 the enactment.
Reference 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."
Section 27(1)(a) of the Education Act 1980 provides that the Secretary of State may by regulations make provision for requiring teachers at schools and further education establishments to possess such qualifications as may be determined by or under the regulations. Section 35(1) of the same Act provides that this power is exercisable by statutory instrument which, under subsection (3), is subject to annulment in pursuance of a resolution of either House of Parliament. Pursuant to this power the Secretary of State for Education and Science made the Education (Teachers) Regulations 1982 ( S.I. 1982 No. 106). Regulation 13(1) of these Regulations provides that, subject to certain exceptions not material to the present case, no person shall be employed as a teacher at a school unless he is qualified therefor as mentioned in Schedule 5. Paragraph 1(1)(a) of Schedule 5 provides that a person shall be qualified to be employed as a teacher at a school for the purpose of regulation 13 if, the Secretary of State being satisfied that he is such a person as is mentioned in paragraph 2, on or after 8th April 1982 he has been notified in writing, by or on behalf of the Secretary of State, that he is a qualified teacher. The relevant parts of paragraph 2 of Schedule 5 are as follows:
"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 1(1)(a) are any of the following persons:-
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(a) a person who has successfully completed a course which—
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(i) is for the degree of Bachelor of Education, the Certificate in Education, the Postgraduate Certificate in Education or a comparable academic award of, in each case, either a university in the United Kingdom or of the Council for...
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