Wetstein v Misprestige Management Services Ltd & Anor [1993] UKEAT 523_91_1903

EAT

Wetstein v Misprestige Management Services Ltd & Anor

[1993] UKEAT 523_91_1903 · 1993-03-19

JUDGE PEPPITT QC :

This is an appeal from a decision of the South London Industrial Tribunal dated 7 August 1991 upon issues ordered to be determined at a Preliminary Hearing by the Chairman on 9 April 1991. We have had the benefit of being addressed by Mr Meeran on behalf of the Appellant, Mrs Wetstein. Neither the First Respondent Misprestige Management Services Ltd nor the Second Respondent Paul O'Farrell appeared before us or in the Tribunal below.

The Appellant complains of racial discrimination in the treatment meted out to her by the First Respondents who are an employment agency and the Second Respondent, one of its directors. The first of the Appellant's claims is under section 1 of the Race Relations Act 1976 and the second is a claim of victimisation under section 2. The preliminary issues ordered to be determined were firstly "whether the Tribunal had jurisdiction to hear the Applicant's claim, and in particular whether the facts relied upon by the Applicant, namely that a condition of the employment offered to her necessitated her working on Fridays after the commencement of the Jewish Sabbath, constituted or could constitute if shown, an act of discrimination contrary to the provisions of section 1(1)(b), in the light of the fact that the conformity with the requirements of the Jewish Sabbath may or may not be a requisite of the definition of a Jew for the purposes of the Race Relations Act 1976 as opposed to a requisite for the practice of Judaism as a religion". Secondly, and alternatively, "whether the imposition of the requirement or condition that in order to receive the services offered by the Respondent Employment Agency, applicants had to be able to work a full-time week including all day Friday constituted discrimination contrary to section 1(1)(b) by reason of the fact that such requirement operated upon those of the Jewish race disproportionately" and thirdly, if the Tribunal is found to have jurisdiction whether the amendment made on 26 February 1991 constituted a fresh claim and if so, whether the Tribunal had jurisdiction having regard to the provisions of section 8 of the Race Relations Act 1976.

The fresh claim was a claim then and there permitted to be made by amendment of the Applicant's Originating Summons and related to her claim under sections 2 and 14 of the Act.

At the hearing before the Tribunal the Appellant abandoned her claim of direct discrimination under section 1(1)(a) of the Act but Mr Meeran on her behalf argued that the Respondents had been guilty of indirect discrimination under section 1(1)(b). He also advanced the Appellant's second claim under sections 2 and 14 of the Act.

The facts of the case are simple and not in dispute. The Appellant is a Sabbath Observant Jew. Her religious beliefs require her to observe the Jewish Sabbath from sunset on Fridays to nightfall on Saturdays. She registered for work as a secretary with the First Respondents on 2 August 1990 and her secretarial skills were then assessed. As a result she was given an interview with a prospective employer on 24 September 1990, in the course of which she sought to arrange that she would leave work one hour before sunset on Fridays during the winter months. This request was relayed to the First Respondent on whose behalf Mr Sanger in a subsequent telephone conversation, informed the Appellant that he could offer her to no further employers because they all wanted employees who could work a full week.

The Appellant thereupon wrote to Mr Sanger on 26 September complaining of the position. The Second Respondent, Mr 0'Farrell, replied on 1 October saying that he was awaiting calls from the Department of Employment, the Employment Agency Licensing Office and the Commission for Racial Equality. Until the matter was resolved he was not in a position to seek alternative employment on the Appellant's behalf. This exchange of letters form the basis of the Appellant's claim under sections 2 and 14 of the Act.

Against this background Mr Meeran contended before the Tribunal that the Respondents had been guilty of indirect discrimination towards the Appellant. Indirect discrimination is defined in section 1 of the Act in the following terms:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a)... (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.

The requirement that the Applicant should be able to work a full week, said Mr Meeran, was applied to the Appellant. The application of that requirement to her constituted discrimination on racial grounds because firstly it was such that the proportion of Jews who could comply with it was considerably smaller than the proportion of non-Jews who could comply with it. Secondly, that it could not be shown to be justifiable under section 1(1)(b)(iii) and thirdly, that the Appellant suffered detriment because she could not comply with it.

As to the second claim under section 2 of the Act, Mr Meeran argued that the Appellant was treated less favourably by the Respondents than they treated or would treat other persons by reason of the fact that she had alleged by her letter of 26 September 1990 that they had committed an act which would have amounted to a contravention of the 1976 Act.

The Industrial Tribunal held unanimously that it had no jurisdiction to entertain the Appellant's first claim. Mr Meeran at first argued before us that by so holding the Industrial Tribunal had misdirected itself in law on a number of grounds, but in the course of his argument, he accepted that the findings of fact contained in paragraph 7(ii) of the Decision constituted a sufficient, though cryptic, justification for the conclusion which the Tribunal reached. We think that this concession was rightly made. In particular we do not consider that the second sentence of that sub-paragraph should be read as Mr Meeran had first argued, as an amplification of the first, but rather as an alternative holding sufficient to dispose of the matter if the first proved to be misconceived. Instead Mr Meeran argued that the finding of the Tribunal that the requirement applied to the Applicant by the Respondents did not operate on those of the Jewish faith disproportionately was perverse in the sense that no reasonable Tribunal could have so held.

The Tribunal found as a fact that between 5-10% of Jews were strict observers of the Sabbath. Mr Meeran argued that in those circumstances the Tribunal could not reasonably have found that the proportion of Jews able to comply with the requirement - 90-95%, was otherwise than considerably smaller than the proportion of non-Jews who were able to comply - 100%.

It seems to us that this question was essentially one for the Tribunal to decide. They heard the evidence and were able to form their own conclusion upon it and upon the documents submitted to them. We are quite unable to say that their finding was perverse in the sense which I have indicated and accordingly we dismiss the appeal in relation to the claim under section 1 of the Act.

Unfortunately that is not the end of the matter, for although the decision recites the Appellant's claim under sections 2 and 14 of the Act, there is no further reference to it in what follows. That claim of course stands on its own, independently of any argument about proportionality. There are no facts found in the Decision which would enable us to deal with it. The claim simply seems to have been forgotten.

In those circumstances we have no alternative but to remit that part of the claim to the Tribunal, requesting them to adjudicate upon the issue defined in paragraph 3, sub-paragraph (iii) of the Chairman's Order of 9 April 1991. Moreover, since the Appellant's claim under sections 2 and 14 of the Act is all that remains of the matter, we suggest that this claim is dealt with in its entirety at one hearing rather than by way of a preliminary, and perhaps thereafter, a subsequent hearing. We also suggest that the matter be considered by the same Tribunal which has considered the matter thus far, though we understand that this might require the Legal Chairman to return to the South London Industrial Tribunal solely for the purpose of completing this case.