Hartup v Sandwell Metropolitan Borough Council [1993] UKEAT 479_92_2007

EAT
Hartup v Sandwell Metropolitan Borough Council
[1993] UKEAT 479_92_2007 · 1993-07-20
MR JUSTICE TUCKEY : This is an appeal from a decision of an Industrial Tribunal sitting in Birmingham who on 10 April 1992, dismissed the Appellant, Mr Hartup's, complaint against the Sandwell Metropolitan Borough Council that they had discriminated against him. The act of discrimination alleged arose out of an advertisement which the Respondents placed in the issue of 4 June 1991 of The Voice for 10 Afro-Caribbean/Asian home helps to "head the provision of home services to the black community in Sandwell". The Appellant, who is white and lives in South London, applied for that job. He did not get it and alleges that he was discriminated against in the way in which it was advertised.The relevant statutory provisions are firstly section 4(1) of the 1976 Race Relations Act which provides:
"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another - (a)in the arrangements he makes for the purpose of determining who should be offered that employment; or (b) ... (c)by refusing or deliberately omitting to offer him that employment"
However, section 5 of the Act provides:
"(1) In relation to racial discrimination - (a)section 4(1)(a) or (c) does not apply to any employment where being of a particular racial group is a genuine occupational qualification for the job...
(2) Being of a particular racial group is a genuine occupational qualification for a job only where -...(d)the holder of the job provides persons of that racial group with personal services promoting their welfare, and those services can most effectively be provided by a person of that racial group."The advertisement made it clear that the Respondents were advertising in accordance with Section 5(2)(d)that section.The Respondents gave evidence before the Tribunal that there was a high proportion of new commonwealth Pakistanis within the population of Sandwell but in their Social Services Department there were 740 home helps of which only 16 were black. They had a need to recruit people with the relevant background to deal with increasing numbers of elderly Afro-Caribbean/Asian clients. Contact with those groups had shown that they often wanted home helps with the same background. Many of the services were culturally sensitive. Whilst they accepted that the definition of the group was fairly wide, there was a limit to the detail that could be included in the advertisement but in any event the intention was to match the appropriate home help to the client when required and when possible. There were about 4,000 people requiring the home help service but the racial split was not known. They were attempting to satisfy the individual choice of clients and whilst many white clients were happy with black home helps and vice versa, increasingly there were some who needed someone from their own racial group. It was the Respondents' view that there was not a sufficient number of home helps from ethnic minorities to deal with the problem.On that evidence the Tribunal directed themselves as to what needed to be established for the purposes of section 5(2)(d) and concluded:"on the particular facts of this case that the services in question can be most effectively provided by an Afro-Caribbean/Asian person and that by virtue of Section 5 and the Provisions of the Act outlined the respondents have committed no unlawful act of discrimination against the applicant".The Appellant appeals on two principal grounds. The first of those relates to the words "being of a particular racial group". He argues that the Tribunal erred in law in concluding that section 5(2)(d) applied at all because to define a group of persons as Afro-Caribbean/Asian is to define much too wide a group of persons and not "a particular racial group" as is required for section 5(2)(d). His argument was that if one takes those words literally they can be extended to include almost everyone in the world apart from those who are white or European.That point was addressed by the Tribunal who said:
"There has been some argument before us as to what constitutes the racial group and that in the event Afro-Caribbean/Asian is far too wide and ill-defined. Section 3(2) of the Act provides that,
The fact that a racial group comprises 2 or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act.We are satisfied in this case that "Afro-Caribbean/Asian" constitutes the "particular racial group" and we accept the respondent's evidence that in any event the advertisement as worded would attract and did attract those for whom there was a requirement. The tribunal are satisfied therefore that the racial group is adequately defined."That is a conclusion which Mr Hartup says no tribunal properly directing itself could reasonably have reached. We do not agree. The act does not lay down any further definition of racial group than a group of persons defined by reference to colour, race, nationality or ethnic or national origins and subsection (2) relied upon by the Tribunal makes it clear that a racial group may comprise 2 or more distinct racial groups. This, as they accepted, was a wide definition of the group of persons to whom this advertisement was directed but we can find nothing unreasonable or perverse in their conclusion that it was a group sufficiently defined for the purpose of the case.At the end of the day this was a question of fact for the Tribunal to decide having considered the needs of the job and the persons to whom the advertisement was directed. They decided this question in the words which we have quoted. We can find nothing wrong with their conclusion.The second point which Mr Hartup takes is that the Tribunal failed to consider the provisions of section 5(4) of the Act which provide that the section 5(2)(d) defence:
"does not apply in relation to the filling of a vacancy at a time when the employer already has employees of the racial group in question (a)who are capable of carrying out the duties falling within that paragraph; and (b)whom it would be reasonable to employ on those duties; and (c)whose numbers are sufficient to meet the employer's likely requirements in respect of those duties without undue inconvenience."
Mr Hartup says there is no reference to section 5(4) in the Tribunal's Reasons and therefore they did not consider it. We do not agree. In paragraph 12 of their Reasons they say as follows:"The tribunal are satisfied on the respondent's evidence that there are some, if not many, elderly people who choose whether on the basis of cultural, linguistic or religious needs or a combination of all three that such services should be given by someone of the same racial background. We accept that the respondent's aim was to satisfy that need not on the basis of any positive act of discrimination but as a part of a sensitive policy to cater for the groups in question. Whilst it is possible for someone of another ethnic background to be trained up or have the skills on some aspects of the job, eg language and food preparation, it would not as the respondents put it to us, "bridge the gap".We have already referred to the evidence which they heard and obviously accepted about the number of home helps, the fact that very few of them were black and that there were increasing numbers of elderly Afro-Caribbean/Asian clients who wanted the kind of service from the people to whom this advertisement was directed.This again was a question of fact for the Tribunal. We are quite satisfied that they had in mind section 5(4) when they reached the conclusion which they did. We can find nothing wrong or perverse with their conclusion. It seems to us that their decision to dismiss this complaint was inevitable. The appeal is dismissed.