Graham v Bristol City Council [1999] UKEAT 511_98_2704

EAT
Graham v Bristol City Council
[1999] UKEAT 511_98_2704 · 1999-03-15
As we understand the position, 125 Hackney Carriage drivers licensed as such in Bristol have initiated complaints against Bristol City Council (the Council) alleging indirect racial discrimination. Of that number five were selected to bring their respective complaints before an Industrial Tribunal sitting in Bristol on and between the 26th and 29th January 1988 "for the purpose of determining the substantive issues involved". We know not how the five came to be selected, but if they were representative then an inference is raised that the bulk of the complaints may be unjustified. For various reasons, only one of the five proved to have a complaint that merited immediate consideration, he being Mr L.A. Graham. In the event, the Industrial Tribunal dismissed his complaint; it purported further to dismiss the remaining four complaints. Mr Graham appeals against this decision.

The Facts

In reliance upon the findings set out on the Extended Reasons, as supplemented by the further information forthcoming from counsel, the material facts can be summarised as follows. By virtue of power stemming from the Town Police Clauses Act 1847 (as amended by the Transport Act 1985) and from the Local Government (Miscellaneous Provisions) Act 1976 the Council was the authority for licensing hackney carriages (that is, the proprietors of such) and hackney carriage drivers. Dealing with carriages (that is, with licensed proprietors), until the 1st July 1987 the Council operated a policy of containment so that, for example, from 1989 onwards the number of licences was limited to two hundred and seventy three. There was (and is) a substantial demand for such licences. To deal with such, the Council operated prior to July 1997 a waiting list. All applicants for a licence were added to such a list. As and when a licence became available, this was offered to the person then at the top of the list, subject to certain conditions, one such being that the person concerned had been employed continuously as full time public hackney carriage driver since joining the list. How could a licence become available? The answer is that availability only arose on the relatively rare occasions when a licence could not, for one reason or another, be retained in the hands of a proprietor, or when one such was surrendered. Because such licences were potentially valuable and not readily available to the list, the latter contained no less than two hundred and three names as at July 1997. In certain circumstances that lie at the heart of part of this case, the waiting list discipline could be circumvented. Section 49 Local Government (Miscellaneous Provisions) Act 1976 allows for a transfer of a licence without reference to the licensing authority. However each such licence falls to be renewed annually and it is within the discretion of the authority as to whether to renew or not. The Council as the authority openly operated a policy with respect to the first renewal following a transfer. The policy was to refuse renewal so as to prevent circumvention of the list, save in certain circumstances. One such circumstance arose if the transferee was the widow or the widower of the previous licence holder. Then the policy favoured renewal. Again, if the transferee was a close relative of the previous licence holder favourable consideration for the application for renewal was a possibility. The waiting list had been in continuous existence since 1944; the renewal policy had been in existence for many years. Prior to 1994 there had been no complaint about these arrangements and the advantage accorded to widows was popular, serving to provide the opportunity for financial support for these dependants.In 1994 the Council first received representations to the effect that a policy on renewal which favoured widows, widowers and close relatives, respectively, of former licence holders could be categorised as potentially indirectly discriminatory on racial grounds. With the passage of years an increasing number of persons from ethnic minorities had joined the waiting list along with white applicants. If there were no exceptions to waiting list allocations there could be no discrimination. However application of the policy on renewal tended to mean that licences originally held by now deceased holders (who for historical reasons were likely to be white) were by-passing the list in favour of widows or widowers or close relatives (who were likely to be from the same ethnic group as that of the former licence holder, that is, white). Viewed overall, it was said, it was easier for a white person to obtain a licence than a person from an ethnic minority.Additional to this concern was the new potential for regulations made pursuant to the Disability Discrimination Act 1995:"Section 32(1) The Secretary of State may make regulations ("taxi accessibility regulations") for the purpose of securing that it is possible:

a. for disabled persons -

(1) to get into and out of taxis in safety;

(2) to be carried in taxis in safety and in reasonable comfort; and

b. for disabled persons in wheelchairs -

(1) to be conveyed in safety into and out of taxis while remaining in their wheelchairs; and(2) to be carried in taxis in safety and in reasonable comfort while remaining in their wheelchairs."In and between 1996 and 1997 the Council decided to deal with these concerns as from the 1st July 1997 by:1. Abolishing the waiting list;2. Removing any limitation in the number of hackney carriage licences; and3. By making as licensing authority new General Conditions such including:
"On granting of any new vehicle licence the vehicle must be able to carry a disabled person in a wheelchair in safety and in reasonable comfort while remaining in their wheelchair, (hereinafter referred to as a 'wheelchair accessible vehicle'). The licensing of any wheelchair accessible vehicle that does not comply with the Metropolitan Conditions of Fitness will be at the discretion of the Health & Environmental Services (Licensing) Sub-Committee.
Proprietors as at 30 June 1997, hereinafter referred to as 'existing proprietors', will be entitled to renew their existing vehicles without having to comply with this condition provided such renewal occurs prior to 1 July 1998. An existing proprietor will be able to transfer a licensed saloon type vehicle after 1 July 1997 to a new proprietor who will be able to continue licensing the vehicle following the expiry of the annual vehicle licence until the vehicle reaches ten years of age."Turning then to the facts appertaining to Mr Graham. He is a black licensed hackney carriage driver. He joined the waiting list for a carriage licence in August 1986 and by July 1997 he was number twenty three in the list. Since de-regulation he has been unable so far to acquire a carriage licence because he cannot afford a vehicle that complies with the new condition that is mandatory for him because he was not a proprietor as at 30th June 1997. We should add that it is not to be assumed that all one hundred and twenty-five applicants are black persons then on the list: some (perhaps many) are white: how they complain of racial discrimination is currently a mystery to us.

The Application

Miss Underhill who appeared for Mr Graham before the Industrial Tribunal and before us invokes the Race Relations Act 1976 as follows:
"Section (1) A person discriminates against another in any circumstances relevant for the purposes of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or (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."

Section 12(1) It is unlawful for any authority or body which can confer an authorisation or qualification which is needed for or facilitates engagement in a particular profession or trade to discriminate against a person -(a) in terms on which it is prepared to confer on him that authorisation or qualification."Averting to the pre July 1997 position she submits that prima facie indirect racial discrimination can be discerned within the framework for such as prescribed by Section 1(1)(b). Developed in stages for clarity it is:The requirement which the Council applied or would have applied equally to Mr Graham and to persons who were white,but which was such that the proportion of black persons who could comply with it was considerably smaller than the proportion of white persons who could comply with it.was the requirement that as a matter of policy a pre-requisite for renewal following upon a transfer of a proprietors licence was status for the transferee as the widow or the widower of the previous holder or as a close relative of that person; andMr Graham's inability to comply with such requirement was to his detriment.Given prima facie indirect racial discrimination as so identified, there remains the issue as to whether the Council can show the requirement to be justifiable in accordance with Section 1(1)(b)(ii). On the findings of fact as made by the Industrial Tribunal (to which we will turn shortly), she submits that such justification cannot be made out so that this first limb of Mr Graham's complaint is made out.Then, averting to the post - July 1987 position, she submits that a further and different finding of indirect racial discrimination should be made. This time she would define the requirement or condition as that which creates an exception to the new condition requiring licensed vehicles to be capable of carrying a disabled person in a wheelchair in safety and reasonable comfort - which exception is available to proprietors as at 30th June 1997. Mr Graham cannot comply with this latter provision so as to enjoy the benefits of the exception and given the history prior to July 1997 (such history including the policy on renewal following transfer) neither can many black persons: the proportion of white persons who can comply will be considerably greater than similarly placed black persons.Turning to justification, she submits that such cannot be made out - and she complains that the Industrial Tribunal made no findings of fact on the point. All this means, as she contends, is that there is ongoing discrimination which will only terminate as and when Mr Graham accumulates the money required to pay the enhanced purchase price of a black taxi cab or some other vehicle big enough and adapted so as to receive a passenger in a wheelchair.

The Industrial Tribunal

Dealing with the pre-July 1997 case, the Industrial Tribunal found that there was prima facie indirect discrimination. The finding was less tightly connected with the terms of the Act than as set out above but the effect is plainly the same. Turning to justification, the Industrial Tribunal noted the history of the impugned renewal policy and concluded:
"14. In all these circumstances and having reminded ourselves of all the leading authorities on the issue we have approached the issue of justification as a balancing exercise between the widows of licensed proprietors who have always expected to have a secure income for life and those on the waiting list whose opportunity to become licensed proprietors was thereby delayed. In our view at the time it operated the balance rests firmly on the side of proprietors' widows. We have reached this view in the knowledge that the system was discontinued by de-regulation on 1 July 1997. If it had been allowed to continue for a significant period of time thereafter it may be that the balance of adverse impact would have shifted. However, up until the time when it ceased to operate we are quite satisfied that the Council was justified in operating the concession in favour of widows. We find therefore that the Council did not unlawfully discriminate against the applicants."
Turning to the post 1997 case, the Industrial Tribunal recorded such as they understood it in these terms:
"If licences had not been transferred to "widows and other close relatives" but had been re-allocated in chronological order to those on the waiting list Mr Graham would have obtained a licence before de-regulation and would therefore have been able to own and drive a saloon vehicle which did not have to meet the wheelchair requirement imposed on all vehicles licensed after de-regulation. This was a "detriment" to him in that saloon vehicles could be purchased significantly more cheaply then wheelchair accessible vehicles. He therefore suffered a quantifiable monetary loss as a result of not having obtained a proprietor's licence before de-regulation."
It made no further reference to this further case.

This Appeal

Dealing with her pre-July 1997 case. Miss Underhill submitted that the Industrial Tribunal when applying law to fact had failed to heed the judgment of Balcombe L.J. in Hampson v Department Tribunal of Education (1989) I.C.R. 179, at 191:
"In my judgment 'justifiable' requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition."
She developed the point by reference to the judgment of this Tribunal in Greater Manchester Police Authority v Lea (1990) 1RLR at 376:
"It is therefore now clear if it was not before that the test is, as thus stated by Lord Justice Balcombe in particular, of an objective balance being struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it.
In our judgment if one applies that test the Police Authority fails to satisfy the requirement because whether or not strictly as a matter of concession makes no difference, it was held and properly held by the Industrial Tribunal that there was no relevant need of the Police Authority in connection with this condition. It was of course not enough as appears from the judgment in Hampson for it to be shown, as no doubt the Police Authority did show, that the condition was imposed in pursuance of an intrinsically entirely laudable and otherwise reasonable policy of helping the unemployed. There has in our judgment to be a nexus established between the function of the employer in this type of case and the imposition of the condition otherwise it is impossible to carry out the objective balance the Court of Appeal has identified as the test of justifiability in relation to the needs of the employer .....".She submits that in the event the Industrial Tribunal endorsed an "intrinsically entirely laudable and otherwise reasonable policy" of helping proprietors' widows but there was no nexus between the Council's function as a licensing authority and that policy. Had they correctly directed themselves as to the law they would not have been able to find justification.Dealing with her post-July 1997 case, Miss Underhill submits that the Industrial Tribunal effectively failed to make any judgment - and indeed failed to make the findings of fact necessary for such.

Our Findings

As to the pre-July 1997 case, the response of Miss Gill for the Council can (without discourtesy to her) be discerned in our findings. If the basis for the Industrial Tribunal's decision on justification was entirely encapsulated in the sentence "In our view at the time it operated the balance rests firmly on the side of proprietors' widows" then Miss Underhill's submission is plainly well founded. However we think that the next ensuing sentences of paragraph 14 invoke a time scale and we are satisfied that such in the context of other findings of fact serves to make the finding of justification for the purposes of Section 1(1)(b)(iii) one that we should sustain. The essential point is that the discrimination requiring justification came about with the passage of time, during which black persons came to make an increasing impact on the waiting list. The Council could not readily pick up the point itself for their waiting list did not record ethnic origins but, as the Industrial Tribunal found, the problem was identified for it by representations first made in 1994. Then and thereafter justification was needed. Implicit in the Industrial Tribunal's findings (and rightly, as we think) is the proposition that thereafter a renewal policy that favoured widows could only be justified in the short term whilst alternative conditions could be fashioned and put in place. Thus, immediate revocation of a long-standing policy (and with it termination of the reasonable expectations of proprietors) could not be justified as advancing the Council's function as a licensing authority, no more than could be justified any long term failure to relieve the now identified discrimination. In the event the Council got the policy revoked by July 1997 - and in a fashion which still allowed for transfer to widows. It follows that to meet Miss Underhill's pre-July 1997 case, there have to be grounds good in law for justification from, 1994 to July 1997 and, as we think, the Industrial Tribunal were entitled to, and did find such. We draw attention to the Industrial Tribunal's appreciation of the significance of the time scale: it categorised the discrimination as 'creeping' (thus signalling a need for justification not ab inito but in course of time) and it pointed out that the justification it identified could not be sustained after July 1997.Thus far the appeal fails.Turning to her post-July 1997 case, Miss Underhill's submissions succeed and to that limited extent the appeal is allowed. Her contentions have already been set out. It is obvious that if such are well founded her client (and such others who establish identity of interest) have been, and are continuing to be the victims of indirect racial discrimination. What are needed are findings based on evidence, first, as to whether the post July 1997 condition is prima facie discriminatory; and second, as to whether any such can be justified in accordance with Section 1(1)(b)(iii). In the event the Industrial Tribunal made no such findings and the case must be remitted for a further hearing - arguably before the same Industrial Tribunal. We should interpose: the failure to make any findings may well reflect an understandable misunderstanding of Mr Graham's case in that it may not have been obvious that his complaint about the post July 1997 position did not stand or fall by reference to pre-July 1997 justification. The 1TI did not set out the case with clarity and Miss Gill, who appeared before the Industrial Tribunal for the Council, was not conscious of having to respond to two separate heads of complaint. Thus it is in no spirit of criticism that we remit the matter: it is to deal with the ongoing issues. As to the merits of the latter we can say nothing. Plainly some interim measure was required to deal with the situation of existing proprietors not in possession of a black taxi cab: whether the condition seeking to achieve that end was discriminatory at all, or whether it was justifiably discriminatory must await evidence and findings of fact.