Oruene v Faculty Of Advocates [1993] UKEAT 208_93_1907

EAT
Oruene v Faculty Of Advocates
[1993] UKEAT 208_93_1907 · 1993-07-19
MR JUSTICE KNOX: Ms Oruene appeals from a decision of the Industrial Tribunal sitting in Edinburgh on 11 and 12 January 1993, whereby it was unanimously decided that Ms Oruene's application by Originating Application presented on the 22 August 1991 claiming that she had been discriminated against contrary to the Race Relations Act 1976 ("the 1976 Act") by the Faculty of Advocates ("the Faculty") should be dismissed. The decision was sent to the parties on the 26th January 1993.This Tribunal only has a limited jurisdiction pursuant to S.136(1) of the Employment Protection (Consolidation) Act 1978 , namely to hear appeals on a question of law arising from any decision of or arising in any proceedings before an industrial tribunal under or by virtue of (inter alia) the 1976 Act. We have read with care Ms Oruene's Notice of Appeal and some written submissions which she kindly provided us with at our request to clarify what Regulations of the Faculty she relied on as having been derogated from and how. We were also supplied with copies of the Regulations as to Intrants and a booklet "The Bar as a Career", both issued by the Faculty and referred to in the Industrial Tribunal's decision. This material was read by us in the context of the parties' pleadings by way of Originating Application and Answer and the Industrial Tribunal's decision together with an Affidavit sworn by Ms Oruene regarding the conduct of the proceedings before the Industrial Tribunal and the Chairman's comments on the Notice of Appeal and on the Affidavit. Our conclusion on all this material is that we are unable to detect an issue or question of law upon which the Industrial Tribunal fell into error and this appeal therefore falls to be dismissed but in deference to the lengthy oral and written submissions made to us by Ms Oruene, we make these comments upon the issues which she sought to raise.We preface this judgment by saying that we are satisfied that the Faculty is a body to which S12 of the 1976 Act applies since it can confer an authorisation or qualification which is needed for engagement in the profession of advocate at the Scottish Bar. It would, therefore, be unlawful for the Faculty to discriminate (as that term is defined by Sections 1 and 2 of the 1976 Act) against a person in the terms on which it is prepared to confer on him that authorisation or qualification. Moreover, there would be such unlawful discrimination if it were shown for example that on racial grounds the Faculty had failed a candidate in an examination leading to admission to the Faculty or had on racial grounds refused to grant an exemption in circumstances where other candidates were, or would be, passed or granted such exemption. The contrary does not appear to have been argued before the Industrial Tribunal. There were therefore only two questions left for decision, first was Ms Oruene less favourably treated than other persons, and secondly, if that was answered in the affirmative, was this on racial grounds. The Industrial Tribunal answered the first question in the negative so that the second did not arise and could not be answered.Taking Ms Oruene's written submissions regarding the Regulations from which she claimed the Faculty derogated, the first concerns Regulation 8(4) which reads:
"An Intrant who has passed the Faculty examinations in Criminal Law, Private Law and Mercantile Law shall be exempt from examination in Scottish Legal System."
Ms Oruene's complaint here is that she did not have it specifically pointed out to her that this exemption was available and she therefore, as she puts it, "was compelled" to sit the Scottish Legal System examination when she need not have done. She made this point to the Industrial Tribunal although there was nothing about it in her Originating Application. There is no substance in this complaint in relation to which the Industrial Tribunal was well justified to say no act of discrimination was found. The point is one of fact anyway but Ms Oruene was given the Regulations early on and could read the exemption for herself. It appears she sat the Scottish Legal System exam and passed in February 1983, at the same time as she sat and passed Scottish Mercantile Law. The other two passes in Scottish Private Law and Scottish Criminal Law came later in May 1985 and July 1984 respectively, so it was only in May 1985 that her automatic exemption was achieved. Sitting and passing an examination for which there is no subsisting exemption is not a detriment of any practical significance. Finally there was no evidence whatever of different treatment of any person of different ethnic origins or race in this connection. On the contrary, Mr MacAuley, clerk to the Examiners of the Faculty, called by Ms Oruene, said he had seen nothing to indicate that Ms Oruene was treated differently from any other Intrant to the Faculty.The next derogation claimed by Ms Oruene was in relation to the failure to grant her exemption from the examinations in Constitutional law, in respect of which she had a Grade C pass at Lagos University where she did two years out of a three years LLB course, or in criminology in respect of which she had a Diploma from London University.Regulation 8(6)(a) provides that:
"If the Board of Examiners are satisfied that an applicant:- (a) has passed an examination in any of the subjects listed in Appendix A(1) [which include constitutional law and criminology] at a standard at least as high as that required by Regulation 3(2):
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they may exempt that applicant from examination in that subject"

Regulation 3(2) provides:
"The general standard of legal scholarship required by the Faculty in the subjects listed in Appendix A(1) is that required for the degree of Bachelor of Laws at a Scottish University."
Regulation 7(5) provides that:
"In an application for discretionary exemption, the age and experience of the applicant and the standard attained by him in his examinations, degree or other qualifications shall be taken into account."
Ms Oruene was born in 1950. There appears to be no evidence of any particular experience in either constitutional law or criminology on her part. What there was before the Industrial Tribunal was evidence that Edinburgh University was consulted about a possible equivalence of a Class C pass degree in constitutional law at Lagos University and advised against granting it and that Edinburgh University would not normally regard a Diploma pass in criminology at London University as a comparable pass because it was a part-time course based on English law. That was ample material upon which it was open the Industrial Tribunal to find that there had been no discrimination. The fact that Ms Oruene was fortunate enough to be granted exemption from Public International Law on the strength of a Diploma from London University in the subject does nothing to detract from that conclusion. In any event there would fairly obviously be no question of the Diploma in Public International Law being regarded as inadequate for Scottish purposes as being based on English law. The two subjects, criminology and Public International Law, are therefore not comparable in that respect.Ms Oruene also sought to pray in aid Regulation 8(6)(c) which concerns graduates in law of a non Scottish University. She is not such a graduate so the regulation does not apply to her. The latter part of the Regulation refers to examinations for which the Faculty does not require any special knowledge of Scots law. It is obvious that there must be such subjects in the syllabus. See for example Roman Law of Property and Obligations and Public International Law. None of this establishes any act of discrimination.There is therefore, in our view, no basis for finding that the Industrial Tribunal erred in law in finding no act of discrimination in connection with derogations from the Regulations. This was the principal basis upon which Ms Oruene's appeal was argued before us but she also claimed that the hearing of the Industrial Tribunal was biased against her.There were two principal points taken under this head. First, Ms Oruene complained of the ultimatum that was issued to her that if she did not appear by a particular time the case would be liable to be struck out. The exact time, as to which there are differences of recollection, matters not. Nor does the fact that the weather was atrocious. What matters is that Ms Oruene arrived in time and her case was not struck out. Her complaint that bias is shown by the fact that the Chairman was prepared to consider striking it out is patently unsubstantial and falls very far short of showing that injustice was caused. The other point taken in relation to bias is that the Chairman set a limit to the amount of photocopying by Ms Oruene. We are entirely unpersuaded that Ms Oruene was thereby deprived of a full and proper hearing.The only points in Ms Oruene's Notice of Appeal not already covered are arguments about factual matters in which Ms Oruene takes issue with such matters as the observation made in the course of the decision that graduates of English or Scottish Universities might not have been allowed to sit the examinations in London rather than in the Faculty library in Edinburgh. This was an aside which has no relevance to the decision that there was no act of discrimination established, a factual conclusion with which we have no jurisdiction to interfere, even if we did not agree with it, as in fact we do.The appeal will be dismissed at this stage.