Hampson v Department of Education and Science
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Griffiths,Lord Ackner,Lord Lowry |
| Judgment Date | 07 June 1990 |
| Judgment citation (vLex) | [1990] UKHL J0607-2 |
| Date | 07 June 1990 |
| Court | House of Lords |
[1990] UKHL J0607-2
House of Lords
Lord Bridge of Harwich
Lord Griffiths
Lord Ackner
Lord Lowry
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.
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.
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.
My Lords,
The appellant, Mrs. Teresa Lee Ping Li Hampson, a Hong Kong Chinese woman teacher born in 1950, alleges that the respondent, the Department of Education and Science, discriminated against her within the meaning of sections 1(1)( b) and 12(1)( b) of the Race Relations Act 1976 because the Secretary of State did not approve a certain course of teacher training which the appellant completed in Hong Kong as qualifying her to be employed here as a teacher. The question for decision by your Lordships is whether, as the respondent contends, the discrimination complained of, assuming that it occurred, would be saved from being unlawful discrimination by section 41(1 ( b) of the Act of 1976. If YES, the appellant's claim must in any event be dismissed; if NO, the case must be remitted to the industrial tribunal for further consideration. Let me first set out the sections, so far as material, which contain the provisions I have mentioned and then say what has happened so far.
"1(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."
Section 12( 1) and (2), which is in Part II of the Act
"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
( 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."
"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 1978 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(1)(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 1(1)( 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 1(1)( 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 section 1(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,...
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