Cardiff Women's Aid v Hartup [1992] UKEAT 761_93_0802

EAT

Cardiff Women's Aid v Hartup

[1992] UKEAT 761_93_0802 · 1992-02-08

JUDGE LEVY QC:

This is an appeal on a preliminary point by the Cardiff Women's Aid, a small charity based in Cardiff, from the decision of the Industrial Tribunal sitting at Cardiff on 29 July 1993, when the Industrial Tribunal held that it had jurisdiction to deal with an application by Mrs Hartup, who appears in person today. Mrs Hartup's application was as a person discriminated against within the provision of s.4(1)(a) of the Race Relations Act 1976 ("the Act").

The background to the appeal is this. On 19 August 1992 an advertisement appeared in The Guardian which reads:

" CARDIFF WOMEN'S AID

requires a

BLACK OR ASIAN WOMAN

as an

INFORMATION CENTRE

WORKER

35 hours p.w.

We provide a direct service to women seeking

information, advice support or refuge from violence.

The Information Centre is open daily and is located

close to the centre of Cardiff.

We need a woman who:

- understands the philosophy of Women's Aid

- has excellent organisational skills

- can communicate at many levels - writing and verbally.

This post is designated for a Black or Asian woman

under the terms of Section 38 of the Race Relations Act 1976 in pursuit of our Equal Opportunities Policy and to meet the needs of the community we work in. The provisions of the Sex Discrimination Act 1975 Section 7.2e also apply.

Salary: NJC Point 27 £14,019

Applications to be returned by: Friday 28th August 1992."

The argument on the preliminary application turned on whether the Industrial Tribunal had jurisdiction to hear the application by Miss Hartup that this was a sex discriminatory advertisement.

We are greatly indebted to Miss Boswell, who took us carefully through the Sections of the Act which are material today, and we are determining this application on a relatively narrow ground. Part IV of the Act deals with "Other Unlawful Acts" being Discriminatory Practices other than those dealt with earlier in the Act. In particular Section 29 deals with Discriminatory Advertisements. Subsection 1 of Section 29 reads:

"(1) It is unlawful to publish or to cause to be published an advertisement which indicates, or might reasonably be understood as indicating, an intention by a person to do an act of discrimination, whether the doing of that act by him would be lawful or, by virtue of Part II or III, unlawful"

Subsection (2) goes on to say that that Section does not apply to certain advertisements. Section 63 of the Act headed "Enforcement of ss 29 to 31" says

"(1) Proceedings in respect of a contravention of section 29, 30 or 31 shall be brought only by the Commission in accordance with the following provisions of this section."

One of the arguments which Miss Boswell has deployed before us is that even if there had been a breach of Section 29, it is only the Commission that can bring proceedings on it because that is what Section 63 says.

Below, the Industrial Tribunal held that it was also open to an individual to bring proceedings under other sections of the Act. We think that Miss Boswell is right in saying that it is only the Commission for Race Relations which can bring such proceedings. We also accept the construction of Section 29 which Miss Boswell has urged on us, that "an intention by a person to do an act of discrimination" should be contrasted with "an act of discrimination" itself and in that connection she referred us to the wide definition of advertisement and to the fact that the advertisement which I have read explicitly refers to Section 38, making it as apparent as possible what the Appellant was trying to do.

In our view the Tribunal erred in law in holding that it had jurisdiction under Section 54(1) of the Act, in that the Appellant had not and could not have committed against the Respondent an act of discrimination which was unlawful by virtue of Part II of the Act within the meaning of Section 54(1) of the Act. The general heading of Part II of the Act is - "Discrimination in the Employment Field". The Respondent did not commit an act of discrimination within any Section of Part II. Part II of the Act covers (in sections 4-9) Discrimination by employers, (in sections 10-15) Discrimination by other bodies and (in section 16) the police. Here the Respondent placed in the Guardian an advertisement which may be an act within Section 38 of the Act and therefore not unlawful but that is not something for us to decide.

As a subsidiary point Miss Boswell urged on us that Mrs Hartup should not have been permitted to make the application to the Industrial Tribunal because it is common ground that she never intended to apply for the job. We do not think that it is necessary to decide on this point in the context of the decision we have made.

It is right that we should refer to J Brindley -v- Tayside Health Board

[1976] IRLR 364

, for two reasons. First of all, it is an authority which was relied on by the Tribunal with which we are differing and secondly, because it has a passage in the judgment on the Sex Discrimination Act which might be thought to help the Appellant. The passage appears at paragraph 9 on p.365 of the judgment and reads:

"The other matter was the applicant's complaint under the Sex Discrimination Act. His complaint was that the respondents' advertisement indicated that they wanted applications from females only for jobs as housekeepers. He said that he could have done the work of a housekeeper and that the respondents discriminated against him. Initially we had doubts as to the competence of this complaint. S.38(1) of the Act [that is the equivalent of S.29 of the Race Relations Act] provides that it is unlawful to publish or cause to be published an advertisement which indicates, or might reasonably be understood as indicating, an intention by a person to discriminate against a woman (or man) but s.72 provides that proceedings in respect of a contravention of s.38 may be brought only by the Equal Opportunities Commission, not by individuals [that is similar to our s.63]. Prima facie it was not open to the applicant to complain to the Tribunal as to the contents of the respondents' advertisement. However, it is open to any person (under s.63)[i.e. our s.54] to complain that another person has committed an act of discrimination against him which is unlawful by virtue of Part II of the Act S.6(1)(A)(in Part II) provides that it is unlawful for a person to discriminate against a woman (or man) in the arrangements he makes for the purpose of determining who should be offered employment. In this case the advertisement was part of the `arrangements' made by the respondents for the filling of the posts as housekeepers and we decided that it was competent for the applicant to complain that by advertising as they did the respondents committed an act of discrimination contrary to s.6(1) and that we had a duty to consider the terms of the advertisement as part of the action taken by the respondents"

This is not a decision which is binding on us, but of course, it is of persuasive authority. However in that case the Appeal Tribunal were dealing with a different act, albeit it had similar provisions. Most important the report does not suggest that the court considered the distinction between the words "an intention to do an act of discrimination" with "an act of

discrimination" , which is at the heart of the Respondents' submission to us. In our judgment, the distinction drawn by Miss Boswell is a valid one which determines this case.

Other matters on which the Tribunal below paid attention, such as the guidelines offered by the Race Relations Board, do not turn on the strict interpretation of the section which is what we have had to consider. Nothing we have said should cast any doubt on the statements of law contained in the booklet to which the Tribunal referred.

We are satisfied that the Tribunal did not have jurisdiction to consider the complaint which Mrs Hartup wished it to consider and in these circumstances we allow this appeal.