Race discrimination 2: indirect discrimination and victimisation

If disproportionate impact is established, then the complainant can allege that he or she has been discriminated against merely because he or she is a member of the same ethnic group (subject to the need to show that the requirement or condition was to his or her detriment because he or she could not comply). The only answer to the complaint lies in the "escape" clause contained in s.1(1)(b)(ii), which entitles the alleged discriminator to justify the act of discrimination on grounds other than those of race.

IDENTIFYING RACIAL GROUPS

While both of the approaches just outlined have their merits, Qayyum draws particular attention to the crucial importance of initially identifying the relevant racial group(s) for the purposes of applying s.1(1)(b) and the comparisons to be made thereunder.

"Racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls (s.3(1)).The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of the Act (s.3(2)).

We considered the interpretation of the terms "colour", "race", "nationality" and "ethnic or national origins" in part one of this series.

The onus is on the complainant to identify the racial group (or groups) to which he or she claims to belong, since it is clear that, under s.1(1)(b) of the Act, discrimination must relate to the racial group of the person against whom it is exercised. Thus a requirement or condition is applied to "that other", and it is the racial group of "that other" whose ability to comply with the requirement has to be considered (Showboat Entertainment Centre Ltd v Owens - and see part one for the contrast with the position in respect of direct discrimination under s.1(1)(a)).

Multiple racial groups

A particular racial group may be comprised of two or more distinct racial groups (s.3(2) and see part one ), and an individual will invariably belong to more than one racial group. This is neatly illustrated in the House of Lords' decision in Orphanos v Queen Mary College, as is the need for a complainant to identify all the possible racial groups to which he or she belongs for the purposes of the s.1(1)(b) comparison.

In that case, the respondent college conceded that the proportion of persons of Mr Orphanos's racial group, namely, of Cypriot or non-British or non-EEC nationality or national origins, who could comply with (a) a permanent residence requirement or (b) a three-year ordinary residence requirement (in Britain or the EEC) - in order to avoid paying overseas student fees - was considerably smaller than the proportion of persons not of that racial group who could comply with it. Lord Fraser observed that that admission seemed to have been made on the footing that Mr Orphanos belonged to three racial groups ("Cypriot", "non-British", and "non-EEC"), and that it made no difference which of those groups was chosen for the comparison required by s.1(1)(b)(i).

He agreed that Mr Orphanos did, indeed, belong to each of the groups identified, and that each was a "racial group" as defined by s.3(1) and extended by s.3(2). But he could not agree that it made no difference which of the groups was used for comparison. The comparison under s.1(1)(b) must, his Lordship said, "be between the case of a person of the same racial group as Mr Orphanos and the case of a person not of that racial group, but it must be such that 'the relevant circumstances in the one case are the same, or not materially different, in the other' - see s.3(4). The 'relevant circumstances' in the present case are, in my view, that Mr Orphanos wished to be admitted as a pupil at the college, so the comparison must be between persons of the same racial group as him who wished to be admitted to the college, and persons not of that racial group who so wished. Consider first the two largest groups - namely, persons of non-British and non-EEC nationality ... I have no doubt that the proportion of persons of non-British and non-EEC nationality who wish to attend the college and who can comply with the requirement of having ordinarily resided in the EEC area for three years immediately before 1 September 1982 is substantially smaller than the proportion of persons not of that group (ie persons who were British or EEC nationals) who wish to attend the college and who can comply with it."

That much seemed obvious to Lord Fraser, and caused no difficulty. But, he continued, "consider now the group consisting of persons of Cypriot (or Greek Cypriot) nationality and compare it with the group consisting of persons not of Cypriot (or Greek Cypriot) nationality, ie consisting of all persons (except Cypriots) of every nationality from Chinese to Peruvian inclusive. If the comparison is between persons of those groups who wish to be admitted to the college as pupils I do not see how any sensible comparison can be made because it would be impracticable to ascertain the numbers of persons so wishing. On the other hand, if it is limited to persons who actually apply to the college for admission it would omit all those who may have been deterred from applying because they knew that they would not comply with the residence qualification. A comparison limited to applicants would, in my view, be entirely unsatisfactory."

In Qayyum itself, one of the grounds on which the EAT allowed an appeal against a finding of indirect discrimination was precisely that the tribunal had failed sufficiently to identify the relevant racial group or groups for the purposes of comparison under s.1(1)(b). The applicant was a Bengali social worker, and it was unclear from the tribunal's decision whether the group for determining the proportionate ability to comply was all Bengali residents in the UK (unlikely, said the EAT); the 70% Bengali population in the local area where the applicant would have worked had he obtained the promotion at issue (again, unlikely); social workers of Bengali race in Tower Hamlets (problematic because the applicant was the only such social worker); or all appropriately qualified Bengali social workers from any local authority in the UK. This latter option would, said Kilner Brown J, "make most sense" as the post applied for had been advertised nationally.

REQUIREMENT OR CONDITION

Once the relevant racial group(s) have been established, the next stage of the analysis under s.1(1)(b) involves the identification of a "requirement or condition" applied to the complainant, which the alleged discriminator applies or would apply equally to persons not of the complainant's racial group.

Extended meanings

The words "requirement" and "condition" do not have wholly separate meanings, and there is a large degree of overlap between them. For example, if a contract of employment stipulates that within six months of starting work an employee should pass a particular exam, that could equally well be described as either a requirement or a condition of continued employment. And their dictionary definitions demonstrate this overlap in meaning. Thus, "requirement" can be defined in terms referring to a condition, and " by referring to something which is a prerequisite. Given that overlap in the ordinary meaning of the two words, "the purpose of the draftsmen in using both words must have been to extend the ambit of what is covered so as to include anything which fairly falls within the ordinary meaning of either word" (per Mr Justice Browne-Wilkinson in Clarke v Eley (IMI) Kynoch Ltd).

A "condition" may thus cover a qualification for holding a position, a disqualification from continuing to hold such a position, or "a qualification for immunity from a disadvantage". There is no valid distinction between a requirement or condition and a " or "yardstick" which may be used by an alleged discriminator, (see the EAT's decision in Hampson v Department of Education and Science).

Sources of requirement or condition

In the employment context, requirements or conditions may be derived from a variety of sources and appear in myriad forms. These include:

Requirements or conditions need not, therefore, be formally reduced to writing, and may even be implied. It will consequently be sufficient if an employer is "in [its] own mind" applying a requirement or condition when making decisions about, for example, recruitment, promotion or dismissal (see Thorndyke v Bell Fruit (North Central) Ltd).

Contractual terms

The mere inclusion in a contract of employment of a term or condition which imposes an obligation on an employee amounts in itself to the application of a requirement or condition to that employee, notwithstanding the fact that the term (for example, a mobility clause) has not yet been invoked (see Meade-Hill and another v British Council). It follows that the impact of such a requirement is to be judged at the moment when the impugned term becomes incorporated into the contract of employment, not some later date.

Similarly, the fact that a requirement or condition (for example, full-time attendance) may be inherent in the nature of a job does not prevent it from constituting a requirement or condition for present purposes. And the fact that the employer requires the employee to carry out the job he or she is employed to do does not mean that it does not "apply" a requirement to him or her (see Briggs v North Eastern Education and Library Board).

An absolute bar or "must"

Any apparent flexibility in defining a requirement or condition is, however, significantly curtailed by the now seemingly entrenched principle (at least in cases under the RRA) that the requirement or condition in question must constitute an absolute bar to compliance or be a "must".

This approach was established by the Court of Appeal's decision in Perera v Civil Service Commission (No.2). There, the Court held that the EAT had correctly concluded that the appellant had failed to show that the factors taken into account by the respondents' interviewing board in deciding not to recommend the appellant for appointment to a post of legal assistant constituted a "requirement or condition" within the meaning of s.1(1)(b)(i). Lord Justice Stephenson pointed out that, where indirect discrimination is alleged, the issues are entirely objective. An applicant who claims that he has been discriminated against indirectly must establish that there has been a requirement or condition. This means "a 'must'; something which has to be complied with". In the present case, the only requirement or condition for candidates for the post of legal assistant was that the candidate should be either a qualified solicitor or barrister. That condition was fulfilled by the appellant. There was no other express requirement or condition and none of the other four factors singled out - experience in the UK, command of the English language, British nationality and age - was a requirement or condition in the sense that the lack of it would be an absolute bar. Therefore, the appellant was unable to get over the hurdle of formulating a particular requirement or condition from the general combination of factors which the interviewing board took into account.

Confirming Perera, the Court of Appeal in Meer v London Borough of Tower Hamlets, was faced with an appellant of Indian origin, who was a solicitor with local government experience. He applied for a vacancy as head of the council's legal department. There were 23 applicants for the post, of whom 12, not including Mr Meer, were selected for a "long list" of candidates. The employers used 12 criteria for long-listing: age, date of admission as a solicitor, present post, current salary, local government experience, London government experience, Inner London government experience, senior management experience, length in present post, and Tower Hamlets experience. All four of the applicants who had Tower Hamlets experience were placed on the long list. Mr Meer, who did not have such experience, contended that this indirectly discriminated against those of Indian origin.

The Court held that the employment tribunal and the EAT had correctly concluded that, as the criterion for being placed on the long list for selection complained of - whether the candidate had Tower Hamlets experience - was not a "must", it was not a "requirement or condition" within the meaning of s.1(1)(b) in accordance with Perera. Lord Justice Balcombe, nevertheless, acknowledged that there are strong arguments "which suggest that the absolute bar construction of 'requirement or condition' may not be consistent with the object of the Act", and that "the law as stated by Perera might need reform".

Perera approach dominant

Notwithstanding such reservations, Perera has by and large continued to determine the approach of courts and tribunals towards the nature of requirements or conditions for the purposes of race discrimination cases.

In Mutemasango v Staffline Recruitment Ltd, for example, the EAT upheld a tribunal's decision that an employer's policy of preferring to recruit persons who had been unemployed for less than six months did not amount to a "requirement or condition", since it was not an "essential term" or an "absolute bar" to being called for interview. As the evidence clearly established, and the operation of the policy itself demonstrated, it was merely a preference. The employer was willing to take on, and had taken on, recruits who volunteered acceptable explanations for being unemployed for longer than six months. There was here, said Mr Justice Butterfield, no rigid application of any term or condition, but "a general flexibility". Perera remained good law, and was binding on both the tribunal and the EAT.

And, in Hall and others v Shorts Missile Systems Ltd (a case under the Northern Ireland fair employment legislation), the Northern Ireland Court of Appeal similarly acknowledged the pre-eminence of Perera, as confirmed in Meer.

Room for flexibility?

There may, however, be some room for a more flexible approach to framing and defining requirements and conditions, although such indications as there are have generally appeared in sex discrimination cases and should probably be treated with caution for present purposes.

First, the determination of whether there is a requirement or condition, and whether that requirement or condition amounts to an absolute bar or a "must", is essentially a question of fact for the employment tribunal. In Jones v University of Manchester (an SDA case), the Court of Appeal therefore declined to interfere with a tribunal's conclusion (in which it had purported to direct itself according to Perera) that a job advertisement stating that applicants should "preferably [be] aged 27-35 years" constituted an absolute bar. Notwithstanding the wording of the advertisement, the tribunal found that in drawing up a long list of 24 candidates (excluding Ms Jones) the university had acted within a "strict age bracket". The Court could not interfere with that finding of fact. There was no reason to suppose that the evidence before the tribunal did not support its decision on this point, which "fell some way short" of perversity.

Second, in a case decided before Perera, the EAT in Watches of Switzerland Ltd v Savell held that the requirement or condition contended for by the respondent employee - "that to be promoted to the post of manager in a London branch of the retail business owned by the [employer] one must satisfy the criteria of a vague, subjective, unadvertised promotion procedure which does not provide any, or any adequate, mechanisms to prevent subconscious bias unrelated to the merits of candidates or prospective candidates for the post of manager" - was capable of being a requirement or condition for the purposes of the SDA. Mr Justice Waterhouse said that the statutory words should be given "a liberal interpretation in order to implement the object of the legislation."

The Court in Perera referred to Savell, and Stephenson LJ said that he appreciated "the importance of looking at the way in which what is alleged to be a discriminatory requirement or condition operates". He did not indicate that Savell was wrongly decided, but appeared merely to distinguish it on the basis that "it was apparently a case in which all applications for promotion had to be channelled through a particular person".

Finally, in a more recent SDA case, the EAT in Falkirk Council and others v Whyte and others, declined to follow Perera. Ms Whyte and two of her colleagues unsuccessfully applied for a managerial post at Cortonvale Prison, which was run by the statutory predecessor to Falkirk Council. They brought employment tribunal proceedings, seeking to challenge one of the factors applied by the employer in the selection process in respect of qualifications - management training and supervisory experience - as being indirectly discriminatory against women. The tribunal upheld the complaint. It found that although the specifications for management training and supervisory experience were only stated to be "desirable", "it was very clear that in practice, in the way in which the interview panel operated, they were the decisive factors in the Cortonvale selection ... Applying a liberal interpretation under the wide approach of Community law to sex discrimination, the tribunal therefore decided that in effect these were requirements and conditions which fell within the meaning of those terms in s.1(1)(b) of the Act."

Dismissing the employer's appeal, the EAT held that the tribunal was entitled to find that the operative factor was a "requirement or condition", notwithstanding that it was stated to be a "desirable" qualification rather than an absolute bar to obtaining the post, where it was clear that the qualification operated as the decisive factor in the selection process. It was open to the tribunal to give a liberal interpretation to what the SDA means by "requirement or condition". If it is shown that qualifying for a particular factor is more difficult for women than men in the workplace, this can be regarded as a requirement or condition in terms of the legislation in relation to applications for a post, particularly when the relevant factor turns out to be decisive. Lord Johnston commented: "We would observe in passing that if the case turned upon whether or not the relevant factors, to become a requirement or condition, had to be an absolute bar to qualification for the post in question, we would not be inclined to follow the race discrimination cases and, in particular, that of Perera."

The decision in Falkirk opens up a potentially undesirable gap between the approaches to requirements and conditions under the RRA and SDA respectively. It remains to be seen whether courts and tribunals will now be willing to show greater flexibility in cases under the former statute. It may, however, be necessary for legislative change to the definition of indirect discrimination in the RRA of the type proposed by the CRE to bring the provisions into line.

DISPROPORTIONATE IMPACT

The requirement or condition identified must be such that the proportion of persons of the same racial group as the individual alleging discrimination who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply (s.1(1) (b)(i)). And that comparison must be of like with like (s.3(4), above).

Pool for comparison

This initially requires careful identification of the relevant part of the general population within which the required comparison falls to be made ("the pool for comparison"). What amounts to the "pool" or "relevant population" for these purposes "will vary in size and shape from case to case", and will relate to that part of the population to which an employer applies or would apply the requirement or condition under challenge in the particular circumstances of the case (Jones v University of Manchester). Tribunals accordingly have a significant degree of latitude in determining the appropriate pool, although a failure to make sufficient findings in this respect may leave their decisions vulnerable to appeal (see Qayyum ).

Depending, therefore, on the circumstances, a pool may be defined nationally (see, again, the EAT's comments in Qayyum), regionally or locally (see, for example, Hussein v Saints Complete House Furnishers, below) or by reference to the whole or part of the particular employer's workforce (see, for example, Perera (No.2) in the EAT). In London Underground Ltd v Edwards (No.2), Lord Justice Potter recently summed up the position as follows: "The identity of the appropriate pool for comparison will depend upon identifying that sector of the relevant workforce which is affected or potentially affected by the application of the particular requirement or condition in question and the context or circumstances in which it is sought to be applied." The appropriate pool in Edwards was identified as those members of LU's workforce, namely train operators, to whom new (and allegedly sexually discriminatory) rostering arrangements were to be applied. It did not cover potential new applicants for the train operator's job, because the discrimination complained of was the requirement for existing employees in the relevant grade to enter into new contracts of employment embodying the revised rosters.)

The pool for comparison is thus further refined by identifying all the other "relevant circumstances" of the case, excluding the allegedly discriminatory requirement(s) or condition(s) (see, for example, Orphanos). In a nutshell, "it is necessary to determine which factors relate to the 'qualification' for the pool and which are attributable to the condition complained of" (Bohon-Mitchell v Common Professional Entrance Board and another).

Qualified applicants

Where applications for employment (or analogous applications) are involved, the appropriate pool will normally comprise those who are qualified to apply, otherwise than in respect of the impugned requirement. In the Court of Appeal's decision in Perera (No.2) , Lord Justice Stephenson observed that had the appellant there been able to prove a particular requirement or condition, he would then have had to prove that it had been applied to him. This would not have involved the whole population of Sri Lanka, where he was born, being compared with the whole population of England or any other racial group. The comparison would have been between "similarly qualified" persons in those groups (in the circumstances, those qualified as solicitors or barristers).

Tribunals must, however, be wary of over-defining the pool for comparison by reading in additional "relevant" circumstances that are not justified on the facts of the case. In Jones v University of Manchester, the Court of Appeal held that the appropriate pool for comparison for a post of careers adviser was all those men and women with the required qualifications for the post, not including the requirement complained of - that is, graduates of the necessary experience falling within the 27-35 age bracket. The tribunal in the case had accordingly wrongly limited the pool to qualified "mature" students, that factor being a circumstance which was integrally related to the impugned requirement.

Disparate impact illustrated

A classic early example of the nature of the disproportionate impact or effect caught by the indirect discrimination provisions of the RRA is provided by Hussein v Saints Complete House Furnishings (p.9). The employment tribunal there accepted that it was "well known" that the black population of Liverpool was largely concentrated in two particular Liverpool postal districts in and around the city centre. It followed that a condition imposed by a prospective employer that persons applying for jobs should not live within a two-mile radius of the city centre ("the excluded zone") which included those postal districts would largely have excluded that black population from applying for such employment. Approximately 50% of the population in the excluded zone was black, whilst outside that zone in the Merseyside area generally the percentage was no more than 2%. The employer's condition consequently excluded a larger number of black people in comparison with the proportion of white people liable to be affected. Although intending to treat everyone equally, the employer had put minority groups at a disadvantage.

Comparison of proportions

This almost impressionistic approach, however, lacks the precision and focus that has subsequently come to be applied to the problem. Rephrasing the words of Lord Justice Ralph Gibson in Jones v University of Manchester: "The section refers not to the number of [one racial group] and the number of [another racial group] who can comply with the requirement but to the proportion of [each racial group]. That shows that those [of each racial group] who can comply with the requirement are to be considered as a proportion of another number, and that that number must be the relevant total [of each racial group] to whom the requirement is or would be applied."

For example, properly framed, the question in Hussein (above) should have been whether a considerably smaller proportion of the total relevant black population could have complied with the impugned requirement than the proportion of the total relevant white population that could have complied. Assuming that the pool for comparison was the economically active population of the Merseyside area served by the jobcentre used by the employer (this was implied, but not specified by the tribunal in Hussein), the same conclusion would probably have been reached. On the statistical evidence before the tribunal, it appears that at least 40% of the total relevant black population was concentrated in the excluded area. Therefore, a maximum of 60% or so of that population could have complied with the operative requirement, whilst a much larger proportion of the relevant white population could have so complied.

Relevant considerations

The EAT's decision in Perera (No.2) is particularly instructive on the considerations relevant to the application of the s.1(1)(b) test. In June 1979 the complainant, who came from Sri Lanka, wished to be considered for selection as an administrative trainee in the Civil Service. The upper age limit for such applications was the age of 32: he was then aged 39. He claimed that this age limit constituted indirect discrimination. He submitted, and it was common ground, that the age limit was a "requirement or condition" applied to all candidates and therefore the case fell within s.1(1)(b); his ethnic group was "coloured" and, because of the number of coloureds who emigrate to this country when adult, the proportion of coloured executive officers who could comply with that requirement was considerably smaller than the proportion of white executive officers who could so comply.

The complainant produced to an employment tribunal a schedule showing that, of the 47 executive officers at the Southall VAT office where he then worked, 22 were under the age of 32 but none of the 13 coloureds was under the age of 32. The employer put in certain evidence as to the position at two other local offices in London. That evidence, far from conflicting with the complainant's evidence, supported it. Out of the 162 executive officers at the three offices, none of the 26 who were coloured was under the age limit of 32, whereas 110 out of 136 whites were under that age. The majority of the tribunal held that this evidence was insufficient to discharge the burden laid down by section 1(1)(b)(i).

Upholding the complainant's appeal, the EAT found the tribunal's reasons for rejecting that evidence unsatisfactory. Mr Justice Browne-Wilkinson made the following points:

Liberal approach to statistics

But there remained what the EAT described in Perera as "the root problem" that, by any normal statistical standard, the evidence laid before the tribunal had in fact been inadequate. It had been based on a very small sample from a very small number of non-typical offices.

Browne-Wilkinson J said that, on the one hand, the burden is always on the complainant to prove his or her case and, viewed in isolation, the statistics produced here had not done that. On the other hand, he warned, "it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the United States has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of s.1(1)(b)(i) are satisfied."

With "some hesitation", the EAT concluded that the complainant in Perera had proved his case. The employer did not demonstrate any way in which the statistical evidence provided by the complainant, though statistically fallible, distorted the proportion of coloureds under the age of 32 and the proportion of whites under the age of 32.

A similarly broad-brush approach is evident in CRE v Dutton, where Lord Justice Nicholls accepted that, "clearly", the proportion of gypsies who could satisfy a "no travellers" condition applied by the "Cat and Mutton" public house in east London was considerably smaller than the proportion of non-gypsies who could do so. Of the estimated gypsy population in the United Kingdom - of some 80,000 - between one-half and two-thirds now lived in houses. But this still meant that a far higher proportion of gypsies were leading a nomadic way of life than the rest of the population in general or, more narrowly, than the rest of the population who might wish to resort to the Cat and Mutton.

And, in Bohon-Mitchell, the tribunal accepted that "knowledge and experience" suggested that the proportion of the complainant's racial group who could comply with the requirement under challenge was considerably smaller than those not of that group. That view was supported by "such statistical evidence as was available", which at least confirmed that "only a very small proportion" of the complainant's racial group could comply.

Beware over-elaboration

There has nevertheless until very recently been a discernible trend under the analogous and influential provisions of the SDA (themselves influenced by the requirements of EC law) towards the application of complex and elaborate statistical analysis to the proportionate comparison required. A number of cases have, for example, endorsed the so-called "demographic approach" articulated by Lord Justice Mustill in Jones v Chief Adjudication Officer. This is based on predicting the proportion of the relevant populations of men and women who ought statistically to be able to obtain an advantage, assuming equality of treatment, and comparing them respectively with the proportions who are actually able to comply with the relevant requirement or condition. It has nevertheless been recognised that this is only one way of dealing with the issues, and that Mustill LJ was dealing with a "very large and complicated" relevant population for which detailed figures and statistics were available (see Sir David Croom-Johnson in Jones v University of Manchester).

Given the problems of producing adequate statistics in race discrimination cases illustrated above, such elaborate approaches should at present, we would submit, be treated with caution. There remains a paucity of information about the racial composition of the workforce, certainly at local and establishment level, notwithstanding the guidance on ethnic monitoring contained in the CRE's Code of Practice (paras. 1.33-1.43). Indeed, the CRE now argues for the imposition of a range of statutory obligations in this respect¹, including compulsory monitoring by ethnicity, with results to be published in company annual reports, for employers with a total workforce in excess of 250 employees.

What is considerably smaller?

There is no statutory guidance on what amounts to a "considerably smaller" proportion for the purpose of determining disproportionate impact under s.1(1)(b) (i) of the RRA, and courts and tribunals have declined to develop hard-and-fast rules in this respect. In R v Secretary of State for Employment ex parte Seymour-Smith and Perez, for example, the Court of Appeal indicated merely that before a presumption of indirect discrimination (in that case, on the ground of sex) arises "there must be a considerable difference in the number or percentage of one sex in the advantaged or disadvantaged group as against the other sex, and not simply a difference which is more than de minimis".

There is certainly no such thing as a "four-fifths" or "80%" rule, which would preclude a finding of indirect discrimination if the disparity between the proportionate ability of the relevant racial groups within the pool for comparison to comply with requirements or conditions is less than 20% (see McCausland v Dungannon District Council on the analogous provisions of the Northern Ireland fair employment legislation). At the other extreme, the suggestion in Wong v Greater London Council that a complete inability to comply with a requirement or condition by a particular racial group did not constitute a considerably smaller proportion would seem equally misplaced. In Greencroft Social Club and Institute v Mullen (a case under the SDA), the EAT said that it had not intended in Wong "to lay down any general principle to the effect that nil can never for discrimination purposes be a proportion of the whole". Such a principle would run counter to the "whole spirit and purpose" of the legislation.

Area of flexibility

Once again, much is left to the discretion of tribunals in deciding this question. Since the question of disparate impact will need "to be resolved in an infinite number of different situations ... an area of flexibility (or margin of appreciation), is necessarily applicable to the question of whether a particular percentage is 'substantially smaller' in any given case" (per Potter LJ in Edwards (No.2)).

In that case, Potter LJ recognised that it would be useful to lay down "a rule of thumb or to draw a line defining the margin within, or threshold beyond which, in relation to small percentage differences, the lower percentage should not reasonably be regarded as 'considerably smaller' than the higher percentage". But, he said, "it does not seem appropriate to do so... because of the wide field and variety of situations in which the provisions of the section [here s.1(1)(b) of the SDA] are to be applied ... If a figure were to be selected in the field of employment, it would be likely to vary according to the context, and in particular as between a case where the requirement or condition is applied on a national scale in respect of which reliable supporting statistics are available and those where it is applied in relation to a small firm or an unbalanced workforce where the decision may have to be made on far less certain evidence and to a large degree upon the basis of the [employment] tribunal's own experience as applied to such figures as are available."

This flexible formulation is to be welcomed, and supports the approach adopted in RRA cases such as Perera (No.2) and Bohon-Mitchell. It was articulated in the context of a small pool of workers. One hundred per cent of the 2,023 male train-operators in the pool for comparison (see above) was able to comply with the new rostering arrangements, whilst 95.2% (20 out of 21) female operators could comply. The Court of Appeal nevertheless upheld a tribunal's finding that this 4.8% disparity, in the circumstances, amounted to a considerably smaller proportion.

Meaning of "can comply"

The words "can comply" - in the sense of a racial group's ability to comply with a requirement or condition - in s.1(1)(b)(i) of the RRA mean "can comply in practice" or "can comply consistently with the customs and cultural traditions of the racial group". They do not mean "can physically" comply, so as to indicate a "theoretical possibility" of compliance (see Price v Civil Service Commission; Mandla v Lee).

As Lord Fraser observed in Mandla, it is obvious that Sikhs, for example, like anyone else, "can" refrain from wearing a turban, if "can" is construed literally. "But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the 1976 Act, then a literal reading of the word 'can' would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford them. They 'can' comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules," his Lordship stated.

The same reasoning holds in relation, for example, to the possibility of individuals obtaining the qualifications necessary for employment. In Raval , an employment tribunal thought that the term "can comply", in the sense of ability to comply, covered anyone with an inherent ability to obtain the required qualification (regardless of whether or not it had actually been obtained at the relevant time). People in the Asian minority group are, it said, just as bright, just as industrious and just as able academically as the rest of the population; and there is therefore no reason to impute to them any greater difficulty than any other group in our society in obtaining an English Language 'O' Level. Roundly rejecting the tribunal's conclusion, however, the EAT held that "in the context of a job advertisement for which specified qualifications are required to support applications which have to be received by a closing date in the near future, the words 'can comply' can only be sensibly construed as denoting an ability to produce proof that the relevant qualification [or its acceptable equivalent] has already been obtained."

Emphasising these principles in the early days of the RRA, the employment tribunal in Bohon-Mitchell referred to Price (an SDA case), and concluded that tribunals should take into account "the current usual behaviour of people as observed in practice and put on one side that which is extreme or unusual ... The words are 'can comply'; they are not 'could have complied if [he or she] had taken different decisions at an earlier date'."

Moment for determining ability to comply

It is implicit in the cases just considered that the relevant point in time at which the ability or inability to comply has to be shown is the date at which the requirement or condition has to be fulfilled (CRE v Dutton - for the position on obligations imposed by contractual terms, see above).

In Dutton, it was argued before the Court of Appeal that the word "can" in the expression "can comply" meant "can comply without giving up the distinctive customs and cultural rules of gypsies". Since gypsies can cease to be nomadic, and become house-dwellers, and therefore comply with the "no travellers" condition, without giving up their customs and culture, it was submitted that the requirements of s.1(1)(b)(i) were not met.

Rejecting those contentions, Lord Justice Nicholls said that gypsies can and do cease to be nomadic, but that will be of little use to a particular nomadic gypsy when he chances upon the Cat and Mutton and wishes to go in for a drink. At that stage he is, in practice, unable to comply. The problem was: at what moment of time does ability to comply fall to be judged? Is it when the condition is invoked (in this case, when the gypsy is outside the public house wishing to enter)? Or is it at some earlier date (which would give the gypsy sufficient opportunity to acquire housing accommodation for himself before turning up at the Cat and Mutton)? The former was the correct approach, Nicholls LJ asserted.

Detriment

An additional hurdle - imposed by s.1(1) (b)(iii) of the RRA - is that the individual who alleges indirect discrimination must show that the requirement or condition applied is to his or her "detriment" because he or she "cannot comply with it". The verb "can" in the term "cannot comply with" must be given the same interpretation as it is in the term "can comply" (just discussed), and the two sub-paragraphs "are reverse sides of the same test in so far as they refer to being able to comply" (see Briggs).

"Detriment" is a broad concept, which in this context goes beyond, for example, merely subjecting an individual to a disadvantage, in the sense of denying them a benefit, opportunity or advantage which is offered to others. It can include a failure to alter terms and conditions of employment to obviate the effects of a discriminatory requirement or condition even where, for example, the requirement with which the individual was unable to comply related "to one hour in one afternoon in the week" (again, see Briggs).

In contrast, in Watches of Switzerland v Savell , the complainant ultimately failed at this stage because she was unable to identify the precise detriment to which she had been subjected. There was no evidence that she personally could not have achieved promotion through the employer's allegedly discriminatory promotion procedure. Similarly, "an unjustified sense of grievance" cannot amount to detriment (Barclays Bank plc v Kapur (No.2)).

JUSTIFICATION

An employer may rebut a finding of prima facie unlawful indirect discrimination by discharging the burden of showing that it is "justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied" (s.1(1)(b)(ii) of the RRA). Whether justification is established is essentially a question of fact for employment tribunals.

This requires them to draw "an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition" (Hampson v Department of Education and Science). The Court of Appeal in Hampson held that this construction is supported by the decision of the House of Lords in Rainey v Greater Glasgow Health Board, applying the decision of the European Court of Justice in Bilka-Kaufhaus GmbH v Weber von Hartz. It was, said Lord Justice Balcombe, "obviously desirable that the tests of justifiability applied in all these closely related fields should be consistent with each other." It is accordingly for the employer to demonstrate a real need on the part of the undertaking, objectively justified, although that need is not confined to economic grounds; it might, for instance, include administrative efficiency in a concern not engaged in commerce or business.

In determining the discriminatory effect of a requirement or condition, tribunals are required "to ascertain both the quantitative effect", ie how many in the affected racial groups "will or are likely to suffer in consequence of the discriminatory effect; and, also, what is the qualitative effect of the requirement upon those affected by it, ie how much damage or disappointment may it do or cause and how lasting or final is that damage?" (see Jones v University of Manchester).

It follows, therefore, that the observations of Lord Justice Eveleigh in Ojutiku v Manpower Services Commission - to the effect that justification means "'to adduce adequate grounds for'; and it seems to me that if a person produces reasons for doing something, which would be acceptable to right-thinking people as sound and tolerable reasons for so doing, then he has justified his conduct" - and Lord Justice Kerr (who stated that the term justifiable "clearly applies a lower standard than the word 'necessary'"), together with related cases pre-dating Hampson, can no longer be safely relied upon.

Justified "irrespective" of race

A requirement or condition must be justified "irrespective of the colour, race, nationality or ethnic or national origins" of the person whom it is applied.

In Orphanos Lord Fraser said that "irrespective of" means "without regard to". No doubt the main reason for introducing the three-year residence requirement was to curtail public expenditure on education in the interest of economy. That reason itself did not involve discrimination on racial grounds. But the particular method of curtailment may have done so. The economy was to be effected at the expense of foreign students. That may have been a perfectly reasonable and justifiable policy for the British Government to adopt, but the college, on whom the onus lay under s.1(1)(b)(ii), had not been able to justify the requirement "without having regard to the nationality of the applicants at whose expense the policy was carried into effect ... in the present case, the discrimination is in accordance with a policy directed against persons who are not ordinarily resident in the EEC area, and ordinary residence is in my view so closely related to their nationality that the discrimination cannot be justified irrespective of nationality."

Earlier, in Mandla v Lee, Lord Fraser had reached a similar conclusion: "... the principal justification on which the respondent relies is that the turban is objectionable just because it is a manifestation of [the appellant's] ethnic origins [as a Sikh]." An attempt to justify the "no turban" rule at issue in the case, on the basis that the respondent sought to run "a Christian school", was thus impermissible.

Legitimate justification

A typical example of a requirement which may be justifiable irrespective of racial grounds is provided in Panesar v Nestlé Co Ltd. There, the EAT held that a rule forbidding the wearing of beards in the respondent's chocolate factory was justifiable on grounds of hygiene notwithstanding that the proportion of Sikhs who could conscientiously comply with it was considerably smaller than the proportion of non-Sikhs who could comply with it. The justification there was purely a matter of public health and nothing whatever to do with racial grounds (see also Singh v Rowntree Mackintosh Ltd).

In Board of Governors of St Matthias Church of England v Crizzle, it is notable that the EAT under Mr Justice Wood displayed an unusually interventionist streak in reversing an employment tribunal's finding that the employer had failed to justify a requirement or condition. The complainant, who was of Asian origin and a Roman Catholic but not a communicant, was deputy headteacher at a voluntary-aided Church of England school which observed Anglo-Catholic traditions. The post of headteacher became vacant and the school governors, seeking a headteacher who could lead the school in spiritual worship and administer the sacrament at the weekly mass, included in their advertisement for the post the requirement that applicants should be "committed communicant Christians". The complainant applied but was not offered the post.

An employment tribunal upheld her subsequent complaint of unlawful indirect discrimination under the RRA, finding that the school governors had applied a requirement or condition, that to be considered for shortlisting an applicant had to be a committed communicant Christian. The governors had thereby excluded the possibility of a balanced choice of the most suitable candidate in the context of the primary purpose of a school - namely, efficient education - the condition was not justifiable.

Allowing the governors' appeal, the EAT purported to apply Hampson and said that the proper approach for the tribunal when determining whether the condition applied by the governors was justifiable was to consider whether the governors' objective was legitimate and whether the application of the condition was a reasonable means of achieving that objective when balanced on the principles of proportionality between the discriminatory effect of the condition and the reasonable needs of the governors. The employment tribunal was wrong, the EAT held, in finding that the relevant need was "efficient education", rather than the governors' own stated objective of "spiritual worship". That latter objective and the means of achieving it were reasonable; and, accordingly, the condition was justifiable and the complainant's claim failed.

CRE PROPOSAL FOR REFORM

In its latest proposals for the reform of the RRA¹, the CRE recommends a new and significantly expanded definition of indirect discrimination. Modelled on the definition contained in the EC Directive on the burden of proof in sex discrimination cases (No.97/80/EC), this states:

Indirect discrimination occurs where an apparently neutral provision, criterion, practice or policy which is applied to persons of all racial groups cannot be as easily satisfied or complied with by persons of a particular racial group or where there is a risk that the provision, criterion, practice or policy may operate to the disadvantage of persons of a particular racial group, unless the provision, criterion, practice or policy can be justified by objective factors unrelated to race.

This formulation would, amongst other things, remove the current obstacle to establishing an operative requirement or condition represented by the Court of Appeal's ruling in Perera (No.2) (see pp.9-11).

VICTIMISATION

The third and final form of discrimination covered by Part 1 of the RRA is discrimination by way of victimisation. This is defined in s.2 of the Act:

(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

As with direct and indirect discrimination under s.1, infringement of s.2 is not of itself unlawful. There is no illegality involved in victimisation "without repercussions": it must be accompanied by events or actions which (in relation to employment) are rendered unlawful by virtue of Part II of the RRA (Nagarajan v Agnew - and see part three of this series). In Nagarajan, a former employee made the mistake of alleging that victimisation - in the form of being turned down for a job on the basis of a poor reference from his former employer which he alleged was motivated by his previous complaints under the Act - was covered by s.4(2)(c) of the RRA (in subjecting him to "any other detriment"). That provision, said the EAT, is limited to events occurring during the subsistence of employment (see part three). It is clear, however, that had the complainant brought his case under s.4(1)(c) (deliberately refusing employment) he might well have succeeded.

The "protected acts"

The "protected acts" created in s.2(1)(a-d) are potentially wide-ranging in scope.

In particular, s.2(1)(c) has been interpreted as meaning that an act can properly be said to be done "by reference to the Act" if it is done by reference to the race relations legislation in a broad sense, even though the doer does not focus his or her mind specifically on any provision of the Act. The phrase "by reference to" is thus much wider than the word "under", and should be interpreted accordingly (Aziz v Trinity Street Taxis Ltd). In Aziz, the Court of Appeal consequently accepted that the making of secret tape-recordings by the complainant of conversations with members of a body regulating the interests of taxi drivers in Coventry (TST) was done "by reference" to the RRA. The complainant felt that he was being treated unfairly; was beginning to form the view in his mind that this treatment might amount to a form of race discrimination; and considered it possible that the recordings might assist him if he chose to seek redress at some future date.

In the case of an act allegedly committed by an employee, s.2(1)(d) above only applies where the act, if established, is one for which the employer would be vicariously liable and therefore treated as if the act of the employee had been done by the employer as well (see part three of this series). An allegation is not, it seems, to be regarded as a protected act within s.2(1)(d) if it is merely a bona fide complaint of a breach of the legislation. The section uses language which imposes a requirement that the facts alleged by the complainant are capable of amounting in law to an act of unlawful race discrimination by the discriminator (see Waters v Commissioner of Police of the Metropolis).

Causation and conscious motivation

On the face of it, it would be expected that less favourable treatment by way of victimisation under s.2 would be subject to the same objective approach and interpretation as is applied to direct discrimination under s.1(1)(a). Indeed, s.2 similarly requires that, in relevant circumstances, the discriminator has treated the person victimised less favourably than it treats or would treat other persons. There must therefore be a "control group" in order to determine that question, and in that comparison "the members of the control group must be those who have not done the protected act" (Nagarajan v London Regional Transport).

At this point the tests radically diverge. The alleged discriminator under s.2 must treat the person victimised less favourably "by reason that" that person has done the protected act, or "by reason that" the discriminator knows that the person victimised intends to do the protected act or suspects that the person victimised intends to do the protected act. In Aziz, the Court held that s.2(1)(a)-(d) of the RRA "contemplates a motive which is consciously connected with the race relations legislation". It was accordingly held that on a true construction of s.2(1), if the necessary causal link was to be established, it must be shown that the very fact that the protected act was done by the complainant under or by reference to the RRA "influenced" the alleged discriminator in its unfavourable treatment of the complainant. What is important, said the Court of Appeal in Nagarajan v LRT, "is the emphasis on the motive consciously connected with the [legislation], as that suggests ... that one must find an individual or group of individuals who were consciously motivated."

In Aziz, for example, this enabled the Court to conclude that, in expelling the complainant, TST was in no way influenced by the fact that the secret recordings were made by reference to the RRA. The decision had been made because members of the organisation considered the making of secret recordings to be a breach of trust, and anyone making such recordings, whatever their purpose, would have been treated in the same way.

¹ "Reform of the Race Relations Act 1976: proposals from the Commission for Racial Equality", April 1998.

Race discrimination 2 - main points to note

Elements of indirect discrimination - the Raval questions

(1)Does the applicant belong to the racial group or groups to which he/she claims to belong?

(2)Has the respondent applied to the applicant any and if so what requirement or condition? If so,

(3)When was such requirement or condition applied to the applicant? (The answer to such question being hereinafter referred to as "the material time".)

(4)Did such requirement or condition apply to other persons not of the same racial group as the applicant? If so,

(5)What are the relevant circumstances necessary to ensure that the proportionate comparison to be made under s.1(1)(b)(i) complies with the "like-with-like" requirement in s.3(4)?

(6)Within what section of the community does the proportionate comparison fall to be made?

(7)Does the application of the proportionate comparison within that section of the community result in a finding that the proportion of persons in the same racial group as the applicant who could comply with the condition or requirement at the material time is considerably smaller than the proportion of persons not of that racial group who could comply with it?

(8)Can the requirement or condition be shown by the respondent to be justifiable, irrespective of any racial factor? If not,

(9)Could the applicant at the material time comply with the requirement or condition? If not,

(10)Was it to his/her detriment that he/she could not do so?

CASE NOTES

Aziz v Trinity Street Taxis Ltd [1988] IRLR 204

Barclays Bank plc v Kapur (No.2) [1995] IRLR 87

Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317

Board of Governors of St Matthias Church of England v Crizzle [1993] IRLR 472

Bohon-Mitchell v Common Professional Entrance Board and another [1978] IRLR 525

Briggs v North Eastern Education and Library Board [1990] IRLR 181

Clarke v Eley (IMI) Kynoch Ltd [1982] IRLR 482

Commission for Racial Equality v Dutton [1989] IRLR 8

Falkirk Council and others v Whyte and others [1997] IRLR 560

Greencroft Social Club and Institute v Mullen 19.6.85 EAT 698/84

Griggs v Duke Power Co (1971) 401 US 424

Hall and others v Shorts Missile Systems Ltd 26.11.96 NICA

Hampson v Department of Education and Science [1989] IRLR 69 (CA); [1990] IRLR 302 (HL)

Hussein v Saints Complete House Furnishers [1979] IRLR 337

Jones v Chief Adjudication Officer [1990] IRLR 533

Jones v University of Manchester [1993] IRLR 218

London Underground Ltd v Edwards (No.2) [1997] IRLR 157 (EAT); [1998] IRLR 364 (CA)

Mandla v Lee [1983] IRLR 209

McCausland v Dungannon District Council [1993] IRLR 583

Meade-Hill and another v British Council [1995] IRLR 478

Meer v London Borough of Tower Hamlets [1988] IRLR 399

Mutemasango v Staffline Recruitment Ltd 21.5.96 EAT 517/95

Nagarajan v Agnew [1994] IRLR 61

Nagarajan v London Regional Transport [1998] IRLR 73

Ojutiku v Manpower Services Commission [1982] IRLR 418

Orphanos v Queen Mary College [1985] IRLR 349

Panesar v Nestle Co Ltd [1980] IRLR 60 (EAT) and 64 (CA)

Perera v Civil Service Commission (No.2) [1982] IRLR 147 (EAT); [1983] IRLR 166 (CA)

Price v Civil Service Commission [1977] IRLR 291

R v Secretary of State for Employment ex parte Seymour-Smith and Perez [1995] IRLR 464

Rainey v Greater Glasgow Health Board [1987] IRLR 26

Raval v Department of Health and Social Security and Civil Service Commission [1985] IRLR 370

Showboat Entertainment Centre Ltd v Owens [1984] IRLR 7

Singh v Rowntree Mackintosh Ltd [1979] IRLR 199

Thorndyke v Bell Fruit (North Central) Ltd [1979] IRLR 1

Tower Hamlets London Borough Council v Qayyum [1987] ICR 729

Watches of Switzerland Ltd v Savell [1983] IRLR 14

Waters v Commissioner of Police of the Metropolis [1997] IRLR 589

Weaver v National Association of Teachers in Further and Higher Education 24.3.87 EAT 551/87

Wong v Greater London Council 15.10.80 EAT 524/79