Ojutiku v Manpower Services Commission

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE EVELEIGH,LORD JUSTICE KERR
Judgment Date26 May 1982
Judgment citation (vLex)[1982] EWCA Civ J0526-4
Date26 May 1982
Docket Number82/0294

[1982] EWCA Civ J0526-4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(MR. JUSTICE SLYNN)

Royal Courts of Justice

Before:

Lord Justice Stephenson

Lord Justice Eveleigh

and

Lord Justice Kerr

82/0294

Between:
Bandele Ojutiku and Samuel Oburoni
Appellants (Appellants)
and
Manpower Services Commission
Respondents (Respondents)

MR. JOHN MACDONALD Q.C. and MR. SEPALA MUNASINGHE (instructed by Messrs. Bindman & Partners, Solicitors, London NW1 2SA) appeared on behalf of the Appellants (Appellants).

MISS ANN MALLALIEU (instructed by The Treasury Solicitor, London SW1H 9NN) appeared on behalf of the Respondents (Respondents).

LORD JUSTICE STEPHENSON
1

I ask Lord Justice Eveleigh to give the first judgment.

LORD JUSTICE EVELEIGH
2

The facts in this case are carefully set out in the judgment of Mr. Justice Slynn; I shall simply summarise them as stated in his judgment. Mr. Ojutiku and Mr. Oburoni came to this country from respectively Nigeria and Ghana in the 1960's. Mr. Ojutiku became a graduate member of the Institute of Electrical & Radio Engineers and qualified as a member of the Institute of Chartered Engineers. Mr. Oburoni came here as a physical education teacher; he trained as a mental nurse; he went into the Health Service administration and he attained the degree of Bachelor of Arts in Social Science. Both men were accepted by the London Polytechnic for a course leading to a diploma in management studies. They applied to the Manpower Services Commission to sponsor their courses; that is to say, to finance them.

3

The powers and duties of that commission are set out in section 2 of the Employment & Training Act 1973. Subsection (1) of that section reads:

"In addition to the functions conferred on the Commission by virtue of the provisions of this Act, other than this section but subject to subsection (3) of this section, it shall be the duty of the Commission to make such arrangements as it considers appropriate for the purpose of assisting persons to select, train for, obtain and retain employment suitable for their ages and capacities, and to obtain suitable employees including partners and other business associates".

4

Subsection (2)(c) provides that:

"Arrangements in pursuance of this section may be made in respect of employment or training in the United Kingdom or elsewhere".

5

Presumably the Commission could sponsor anyone who was admitted to the London Polytechnic for this course but, in my opinion not surprisingly, they imposed certain qualifications for applicants to fulfil. I can summarise them as follows: That they should be,. firstly, experienced in a post of commercial, administrative, professional or industrial responsibility; and they should have either a degree or a higher national diploma, or membership of a professional body.

6

The applications of these appellants were rejected; they were rejected on the grounds of lack of experience in the required post. They went before an Industrial Tribunal, contending that there had been a breach of section 13 of the Race Relations Act 1976, because there had been a refusal of access to a course of training which would help to fit them for employment, and it was said that this discrimination had been on the ground of their race.

7

They relied upon section 1 of the Race Relations Act 1976, subsection (1)(b); I will read the whole of section 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".

8

It is not contended in this case that this was a case of direct discrimination under subsection (1)(a); it is subsection (1)(b) that is relied upon, and it was found by the Tribunal, and it is accepted in this court, that the applicants have brought themselves within subsection (1)(b)(i) and subsection (1)(b)(iii); the only question that had to he determined in the Appeal Tribunal, and here, is whether or not the Commission has satisfied subsection (1)(b)(ii), namely, whether they have shown their indirect discrimination to be justifiable.

9

The Industrial Tribunal dismissed their application, finding that there was no breach of the Act. They appealed to the Appeal Tribunal; before that Tribunal it would seem that the argument was entirely on the ground that the evidence was not satisfactory to establish justification, because the evidence given for that purpose was the evidence of a Mr. Carradine, who was the principal training adviser of the Training Opportunities Scheme operated by the commission, and it is said that there should have been evidence of justification from an independent source.

10

The evidence of Mr. Carradine was to the effect that it was essential not to support candidates for the course if there was really no likelihood, or no reasonable likelihood, of their getting a job at the end of the course. He expressed the view that if the Manpower Services Commission were to support candidates who had not the requisite experience and who, at the end of the course, would not get jobs, this would have an adverse effect on the reputation of the sponsorship scheme, which in the long run would operate to the disadvantage of all those who had been selected for the course. He gave evidence of his own experience and of enquiries and investigations that he had made among employers; and he also stated that candidates who were white had been rejected because they had not fulfilled the experience qualification. He was of the view that if the two appellants in this case had taken the diploma successfully, as everybody accepted they would have done, their prospects of obtaining employment would not have been enhanced. He also said that the courses at the Polytechnic were courses which were attended by people who were still working in their regular jobs and who would greatly contribute to the success of the course, and to their own qualifications, by bringing to the class their own experience in industry. For example, there were group discussions, to which they would be expected to contribute, and people without experience would not contribute as much and, it would seem, would not benefit as much, or so readily, from the tuition and the discussions. He said that one of the most valuable points in the course is that you are going back to discuss what you have learned at the course in your own way. He said, in effect, that to take on these two men would be to raise their expectations only to find them dashed to the ground at the end of the day. As I understand his evidence, he is in effect saying that it is not the policy to sponsor everyone who is acceptable to the London Polytechnic; that some limit has to be placed upon the help which the Commission feels able to give; for myself, I think it is quite understandable that a person should take the view that if the tuition cannot be, or is not to be, available to everyone, then the preferable course is to make it available to a person who will benefit the greatest from it. That is the approach which I think the father of a family would adopt when considering where to send his children to be educated and what money would be justifiably spent upon them.

11

The Industrial Tribunal accepted this evidence and unanimously came to the conclusion that the Manpower Services Commission had imposed a requirement that was justifiable within the terms of section l(1)(b)(ii). The Appeal Tribunal rejected the contention of the appellants that the evidence was not appropriate, or not sufficient, in the case. It was submitted that there must be objective, and independent, evidence to establish the justifiability of the requirement, and it was contended that if employers could come forward, or if people in the position of the respondents could come forward, and simply state their own views, then the Act would be of no effect. They complained that here the Manpower Services Commission did not call evidence to show that the opportunities for the two men would not be enhanced in the market, and they had not called evidence to show that those who were selected had had their job opportunities enhanced. They relied on the decision in Steel v. Union of Post Office Workers, (1978) Industrial Cases Reports, page 181, and the guidelines indicated there.

12

But the Appeal Tribunal came to the conclusion that the evidence was sufficient to establish justification; that ground has been re—argued in this court and for myself I would reject it. The Appeal Tribunal held, and I agree with them, that this was not a mere expression of opinion by the Commission. Mr. Carradine gave reasons for his views; he spoke of actual enquiries made by him and he spoke of his own experience in the field. He was cross-examined on the matter; his evidence was accepted and for myself I cannot see any rule of law which requires an employer to call evidence from outside. Obviously, there are many cases where it would be sensible to do so, but it is not...

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11 cases
  • Hampson v Department of Education and Science
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 December 1988
    ...Templeman concurred with this suggestion—see pages 468–9. 32We were referred to a number of other cases—in particular Ojutiku v. Manpower Services Commission [1982] I.C.R. 661, to which I refer in a different context below—in which the section 41 defence might have been raised, but was not......
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  • Webb v Emo Air Cargo (UK) Ltd (Case C-32/93)
    • United Kingdom
    • House of Lords
    • 19 October 1995
    ...no indirect discrimination. In doing so it relied upon the test of what is justifiable expressed by Eveleigh L.J. in Ojutiku and Obuzuni v. Manpower Services Commission [1982] I.C.R. 661 at p. 13After the Industrial Tribunal had given its decision, there was decided in the Court of Appeal ......
  • Webb v Emo Air Cargo (UK) Ltd (Case C-32/93)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 December 1991
    ...(ii), namely: "In our consideration we are guided by the words of Eveleigh LJ in Ojutiku and Obuzoni v. Manpower Services Commission (1982) ICR 661 CA 'If a person produces reasons for doing something, which would be acceptable to right-thinking people as sound and tolerable reasons fo......
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2 books & journal articles
  • Objective justification, less discriminatory alternatives, and the ‘Great Repeal Bill’
    • United Kingdom
    • International Journal of Discrimination and the Law Nbr. 17-3, September 2017
    • 1 September 2017
    ...RRA 1976, s. 1(1)(b).28. [1978] ICR 181 (EAT).29. 401 US 424 (1971). See above, text to n. 000.30. [1978] ICR 181 (EAT) 187–188.31. [1982] ICR 661 (CA). In Parliament, the Government resisted amendments to the Sex Dis-crimination Bill that would have replaced ‘justifiable’ with ‘necessary’.......
  • Disparate Effects and Objective Justifications in Sex Discrimination Law
    • United Kingdom
    • International Journal of Discrimination and the Law Nbr. 5-1, March 2001
    • 1 March 2001
    ...cases).137 Barnard and Hepple, `Substantive Equality,' n 17 above, at 570(quotation omitted).138Ojutiku v Manpower Services Commission[1982] ICR 661 at 667-8per Eveleigh LJ.139 Directive 97/80/EC, OJ 1998 L l4/6, Art2(2).140 As Lord Nicholls observed, `as I see it, the reasoning underlying ......

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