TREASURY SOLICITORS DEPARTMENT v MR A CHENGE [2006] UKEAT 0452_06_1212

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0452_06_1212

Case No Appeal No. UKEAT/0452/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

TREASURY SOLICITORS DEPARTMENTAPPELLANT

MR A CHENGERESPONDENT

Before

Mr Justice Burton

Date 12 December 2006

[1]APPEARANCES For the Appellant MS W OUTHWAITE (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) 1 Kemble Street London WC2B 4TS For the Respondent MR A CHENGE (The Respondent in Person) SUMMARY Race Discrimination – Discrimination by other bodies Training within S13 of the Race Relations Act 1976 is defined by S78 as "any form of education or instruction". The Respondent's Vacation Placement Scheme constitutes such training and S13 consequently applies. Hence the ET was correct to resolve the preliminary issue in favour of allowing the Claimant's claim to proceed. The alternative finding by the ET that the Scheme amounts to a "facility" connected with the Respondent's Legal Trainee Scheme is incorrect but in the circumstances unnecessary. THE HONOURABLE MR JUSTICE BURTON This has been a somewhat unusual case in the sense that the Respondent, Mr Chenge, is someone who wishes to be a lawyer and applied to the Government Legal Services (GLS) for the opportunity of going on a placement scheme, was refused to take part in the placement scheme, but has in the event acquired quite a good deal of work experience by dint of appearing both at the Employment Tribunal, successfully, and before the Employment Appeal Tribunal, again, although I hardly called on him, successfully.

[2]The case, however, is of much more general importance than relating to Mr Chenge and, no doubt, he will feel not only personally pleased that at least his case goes on to the next stage but also that he has, in some way, benefited others, whatever the eventual outcome of his claim. It relates to the applicability of the Race Relations Act 1976 to work experience schemes, such as those operated by the GLS.

[3]The Respondent was rejected for a place on the GLS' Vacation Placement Scheme (VPS). The grounds upon which he was rejected are not before me today, any more than they were before the Employment Tribunal, because this has been the determination of a preliminary issue by the Employment Tribunal at London (Central), chaired by Mr Buckley, sitting alone, on the preliminary point as to whether s13 of the Race Relations Act 1976 applies to the VPS. As a result of the conclusion by the Tribunal that it does, which is now the subject of challenge before me, the matter would go forward to a full hearing, at which the grounds upon which the Respondent was in fact rejected will be tested and, at that stage, the GLS puts forward a very fulsome defence as to why they did not act discriminatorily, within s13 or at all, in refusing the Respondent's application; but those matters are not for me.

[4]Those taking part in a VPS, which, as appears from its title, takes place in the vacation, such that consequently most, if not all, of those taking part will be on vacation from some other form or course of study, are not paid. They receive only expenses. The VPS takes 10 days, i.e. two working weeks. Some of those who are on such a VPS may be successful in applying subsequently to go on the GLS' Legal Trainee Scheme (LTS), when those who take part are paid. The description of the VPS by the GLS in a published brochure is as follows:

"Each year the GLS runs a vacation placement scheme which aims to provide those wishing to pursue a legal career with an insight into the GLS' unique perspective of the law."

[5]In a letter sent to the Respondent by the GLS Secretariat on 3 May 2006, after his rejection, the following was written:

"The attached publicity brochure provides a broad indication of the range of activities that applicants may be involved in. As you will see these include: Involvement in case work Liaising with clients Drafting instructions to counsel Attending hearings Researching topics for members of departments' legal teams Observing debates in both Houses of Parliament."

[6]The Respondent asserts in these proceedings – denied, as I have described, by the GLS - that he was discriminated against on grounds falling within the Race Relations Act 1976 . The primary, if not only, basis, on which he put his claim when he issued proceedings was by reference to s 4 of the 1976 Act, which provides:

"(1) It is unlawful for a person in relation to employment by him at an establishment in Great Britain to discriminate against another."

And then the various respects in which such discrimination can take place are specified.

[7]It became speedily apparent in the course of the hearing, at which Mr Buckley was, as is of course so frequently the case with distinguished and diligent Chairmen, doing his best to assist, without, no doubt, prejudicing more than necessary a respondent's case, an unrepresented claimant, that s4 could not possibly apply to the VPS because, on any basis, those participating on the Scheme were not in employment. And that was a conclusion which the Tribunal records and is in no way the subject of challenge by either party now.

[8]However, in the course of the hearing it seems that Mr Buckley himself suggested, and the Respondent adopted, the possibility of relying upon s13 of the 1976 Act. That provides as follows and it is headed up "persons concerned with provision of vacational training":

"(1). It is unlawful, in the case of an individual seeking or undergoing training which would help fit him for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against him - (a) in the terms on which that person affords him access to any training course or other facilities concerned with such training… (3). It is unlawful for any person who provides, or makes arrangements for the provision of, facilities for training to which subsection (1) applies, in relation to such facilities or training, to subject to harassment a person to whom he provides such training or who is seeking to undergo such training."

Subsection 3 was added in 2003. The whole section was amended, in respects to which I will refer, as a result of the Employment Act 1989 s7(2).

[9]The GLS's case was that the VPS does not amount to training. The Employment Tribunal found that it was training, and consequently resolved the preliminary point in favour of the Claimant, and the GLS now appeals.

[10]The Employment Tribunal found as an alternative that, if the VPS did not amount to training, then, in the alternative, the VPS could be said to amount to "other facilities concerned with such training"; the training in those circumstances then being the subsequent LTS course. Mr Buckley said this in this regard in his Judgment:

"4.9 Even if vocational training is to be interpreted narrowly within the meaning of section 13, so as to exclude work experience under the Vacation Placement Scheme, the Respondents do not argue that the Legal Trainee Scheme is not properly within the section, as comprising vocational training. The evidence produced by the Respondents included their standard literature about the Vacation Placement Scheme, which states that:- "… the Vacation Placement Scheme aims to provide those wishing to pursue a legal career with an insight into the GLS' unique perspective of the law. Placements are specifically targeted to those who are considering applying in the same year to the GLS Legal Trainee Scheme…" 4.10 Thus it seems clear that the Vacation Placement Scheme is offered by the Respondents as a facility which is concerned with vocational training under the Legal Trainee Scheme.

(b) "

[11]The conclusion by the Tribunal in this regard is regarded by the GLS as wholly wrong by reference to the facts. First the fact that placement on the VPS was said to be targeted at those who subsequently applied to the LTS, or were interested in subsequently applying to the LTS, was stated in the context, not only of explaining the existence of the VPS and its differentiation from the LTS, but more particularly in the context of an explanation why the Respondent was refused for the VPS, since he would not be eligible for the LTS. Secondly, so far as eligibility for the LTS is concerned, taking part in the VPS did not in fact make any difference; it certainly did not involve any kind of ticket onto the VPS, and this was apparent from the evidence that was put before the Tribunal, although not for this purpose, namely in paragraph 8 of the statement of Mr Walters. He said this:

"By way of background, in 2004 there were 1,007 applications for the VPS but only 80 places available. Of the 80 placements, 50 individuals went on to make an application for the LTS but only four were successful in filling the 25 available that year. In 2004 there were 1,156 applications for the VPS but only 62 places available. Of the 62 placements, 39 individuals went on to make an application for the LTS, but only one was successful in filling the 21 places available that year. A candidate's success or failure in relation to their application for a VPS is no indicator of whether or not they will succeed or fail if they apply for the LTS."

[12]This explanation was put forward in the context to which I have referred, and in no way directed to any argument based upon whether or not it could be said that the VPS was a facility connected with the LTS, because that argument was not in anyone's mind on 25 May 2006 when that witness statement was prepared; nor indeed was this alternative argument raised by the Respondent, or even by the Chairman on the Respondent's behalf in the course of the hearing, but, it is common ground before me, it was not raised at all during the hearing and appears to have been an afterthought of the Chairman, when he came to write the Judgment.

[13]Ms Outhwaite, who has argued the matter with great force on behalf of the Appellant GLS, submits that, on any basis, such course was unfair, and that had the point been raised during the hearing, then if necessary further evidence could have been adduced to divorce still further any connection between the VPS and the LTS. Plainly it is not a sensible course for points of this kind - even if they are fallback points, particularly where they are intended to shore up the possibility of the main decision being wrong, which means they must be of some importance - not to be canvassed in the course of a hearing and yet to feature subsequently in a Chairman's judgment.

[14]But irrespective of that, Ms Outhwaite has addressed the point on its merits in her Skeleton Argument and I am entirely persuaded that the point is misconceived. She has not been able to produce before me any authorities on the operation of this aspect of s13, nor has produced before me any authorities on the meaning of the word "facilities", except that she says that she found a case, which was sufficiently far away in its terms not to merit being put before me, in which "facilities" has been held to include the question of the making of a grant for training or education. I can see that that would indeed be a relevant usage of this section. There would clearly be other possibilities where there was alleged discrimination in relation to matters either immediately prior to training, such as the giving of a grant, or ancillary to training, such as the provision of accommodation or of catering facilities, or perhaps of extra tuition during a course of training. All such matters, and possibly others, could be regarded as 'providing or making arrangements for the provisions of facilities' for such training. But I am wholly unconvinced that it even begins to be arguable that taking part in some earlier course, certainly on the facts of this case, could be said to amount to facilities in connection with some subsequent course, if it is only the latter course which is the training and not the former. And the wording of s13(3), the harassment clause, appears to me to support that view.

[15]I am clearly of the view that this alternative argument cannot be supported, and that it cannot be said, if the VPS was not itself training, that taking part in the VPS was a facility in connection with the possibility of taking part in the LTS, which is.

[16]I turn then to the main argument which found favour with the Tribunal, by reference to the VPS amounting to training. S13(1), which I have already recited, specifically refers to an individual seeking or undergoing training which would help fit him for any employment. The Appellant says that the VPS is not training within that definition. Ms Outhwaite has put forward, in her Skeleton Argument, a suggested proposition in relation to training, in submitting, by reference to a Collins dictionary definition, that the "process of bringing a person etc. to an agreed standard of proficiency etc. by practice and instruction" can be supplemented by the following proposition:

"14. It is inherent in the concept of training that there is (1) A syllabus; (2) Direct active instruction: that is a positive guiding of activities and knowledge being imparted deliberately to the individual; (3) A qualitative assessment, or at the very least some scrutiny of the performance of the individual; (4) Feedback on and criticism of the performance of the individual; (5) Typically resulting in a qualification, certificate or analogous formal acknowledgement of a standard of performance at end. At the very least a written report summarising the adequacy of performance."

[17]The Appellant submits that work experience or work placement is not training because it is specifically dealt with as such in other statutes and directives. By dint of a good deal of research Ms Outhwaite has put forward, among others, the following before me.(i) She has referred to ss14C and D of the Disability Discrimination Act 1995, which, by s14C(1) proscribes discrimination "in the case of a disabled person seeking or undertaking a work placement", and work placement is defined by s14(C)(4) for the purposes of both ss14C and 14D - which latter is related to the making of adjustments - as meaning "practical work experience undertaken for a limited period for the purposes of a person's vocational training".

(ii) In the Employment Equality (Religion or Belief) Regulations 2003 , and in the Employment Equality (Sexual Orientation) Regulations 2003 , in each case in regulation 17, there is a specific section relating to providers of vocational training, and proscribing discrimination in that regard, and by regulation 17(1) the proscription relates to a person "seeking or undergoing training which would help fit him for any employment", and by 17(4) training is defined as including: "(a) facilities for training and (b) practical work experience provided by an employer to a person whom he does not employ."

(iii) In the Employment Equality (Age) Regulations 2006 , regulation 20 proscribes discrimination in relation to a person seeking or undergoing training by a training provider and by 20(4) training is defined as meaning: "… (b) vocational guidance, (c) facilities for training (d) practical work experience provided by an employer to a person whom he does not employ."

(iv) In the Council Directive 2000/43/EEC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Article 3 describes the scope of the directive as applying to: "(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience."

(v) There is a similar provision in the Directive 2006/54/EEC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, in which Article 14(1)(b) repeats the identical words of article 3(b) of the 2000 Directive .

[18]The starting point, in my judgment, is s78(1) of the 1976 Act , which is the definition section, where there is a definition of training, as follows:

""training" includes any form of education or instruction."

[19]I conclude that the VPS does fall within s13, and I so conclude for the following reasons. First it is clear, indeed it was part of Ms Outhwaite's submission, that the source for the 1989 amendment, albeit that is took some time to come forward, was a decision of this Appeal Tribunal, which should feel some pleasure in having been, if that is right, the indirect cause of legislation, although the matter was clearly contributed to by the distinguished nature of the Judge who expressed the view to which I shall now turn, namely Neill J, as he then was. The case was Daley v Allied Suppliers Ltd

[1983] IRLR 14

. The form of s13 of the 1976 Act , whose modern format since 1989 I have already cited, as at the time of Daley , was helpfully set out by the Employment Tribunal in paragraph 4.5 of the Judgment:

"(1) It is unlawful for a person to whom this subsection applies, in the case of an individual seeking or undergoing training which would help to fit him for any employment, to discriminate against him…"

Although there are additional methods of discrimination included in s13(1) they are not material for this appeal, and I have neither cited them in the present nor do I in the original form of the section. "(2). Subsection (1) applies to (a) industrial training boards established under section 1 of the Industrial Training Act 1964; (b) the Manpower Services Commission, the Employment Service Agency and the Training Services Agency; (c) any association which comprises employers and has as its principal object, or one of its principal objects, affording their employee access to training facilities; (d) any other person providing facilities for training for employment, being a person designated for the purposes of this paragraph in an order made by the Secretary of State."

[20]The facts of the case in Daley v Allied Suppliers Ltd only appear in the Judgment of Neill J sufficiently for the purposes of his decision, and therefore the full nature of the scheme he was there considering appear in no greater detail than as canvassed in his Judgment, but it related to a Youth Opportunities Programme scheme, sponsored by Allied Suppliers Ltd, but in a form previously submitted to, and consequently approved by, the Manpower Services Commission. In paragraph 3 of the Judgment the title of that scheme is set out by Neill J, namely that it is a work experience scheme. In paragraph 3 he recites the background sufficient for his purposes:

"The YOP [Youth Opportunities Programme] was introduced by the MSC [the Manpower Services Commission] in the exercise of their general function under s2(1) of the Employment and Training Act 1973. The YOP includes the setting up of work experience schemes on employers' premises. The practice adopted by the MSC is to try to interest employers in becoming sponsors of work experience schemes… If an employer is willing to become a sponsor he submits a work experience scheme to the MSC. A scheme usually provides for a programme of training lasting 26 weeks. If the MSC consider the scheme to be suitable, an agreement is then signed between the MSC and the sponsor and a copy of the scheme is annexed to the agreement."

By paragraph 4 he sets out that a young person who has been accepted for training on a work experience scheme is entitled to receive a sum of £25 per week.

[21]The Employment Appeal Tribunal, per Neill J, concluded that participation in such a scheme did not amount to employment and, as in this case, that is a conclusion which must be right, and of course was not taken to the Court of Appeal nor in any way suggested to be incorrect. Consequently ss4 and 7 of the Act did not apply. S13 was then considered, as was s78, by the Judge. Counsel for the respondent submitted that there was no contract at all between the company and Miss Daley, and, in the alternative, if there was a contract, the contract was not one within the definitions relating to employment in s78, and persons undergoing training were protected if at all by s13. However, given the limited nature of s13 at that stage, the respondent was able to say that the scheme in question did not fall within s13 because the respondent itself was not itself the Manpower Services Commission, was not an association comprising employers, and was not a person designated for the purposes of s13(2) in an order made by the Secretary of State.

[22]In rejecting the argument of employment, which was thus the only argument available to the appellant in that case, Neill J said at paragraph 22:

"The primary object of the work experience scheme was to enable Miss Daley to obtain some work experience."

But he was satisfied that there was no employment. And he concluded with the plea, which appears six years later to have led to the legislation, in paragraph 24 of his Judgment:

"Having reached these conclusions, however, we think it right to draw the attention of the Secretary of State to an apparent gap in the law. It is of the utmost importance that there should be no discrimination on racial grounds against a young person engaged in a work experience scheme. We therefore hope that urgent consideration can be given to taking steps, either by means of an order under s13 or otherwise, to ensure that protection under the 1976 Act is extended to deal with any cases which may arise in the future."

[23]It is apparent that Neill J concluded that Miss Daley would have been covered by the definition of training in s13 but could not take the benefit of that section because of its restrictive scope, and was thus inviting the Government either to make some order which would delimit the impact of s13, or to take some other course. The course that it took in 1989 was to delimit, not by making an order, but by amending the section so as to make s13 applicable to all providers of training. The definition in s78 remained unchanged.

[24]Of course Ms Outhwaite relied upon Daley before the Employment Tribunal in establishing her proposition that there was no employment in that case, or in this. Mr Buckley drew upon paragraph 24 of Neill J's Judgment in Daley in paragraph 4.6, and concluded in paragraph 4.8 as follows:

"I do not accept the submission of Ms Outhwaite that section 13 must be interpreted to exclude persons seeking or undergoing work experience. Training is a process of being guided, instructed or prepared in some special way and vocational training emphasises the special skills needed for a particular trade or profession. Whilst I accept that the few weeks of work experience for which the Claimant was applying could not amount to a complete programme of training, it nevertheless provided for educational advancement by the gaining of knowledge and ability from the experience given of working in one of the Government departments, to which government legal services are provided."

[25]Mr Buckley did not specifically address Daley any further, but I conclude that, given that Daley was indeed the springboard for the subsequent amendment, it would seem odd if a work experience scheme, such as was reluctantly excluded from the then s13 by the Employment Appeal Tribunal in Daley , should not be caught by the amendment. Ms Outhwaite submits however that what there was in Daley was really training, and not a work experience scheme such as there is in this case. She points to the fact that the work experience scheme in that case lasted for 26 weeks. We have no information as to the content of the work experience scheme in that case. Her submission is that it would depend upon the facts whether a work experience scheme, so-called, amounted to training or amounted to work experience which was not training, and submits that on the facts of this case on any basis this was not training.

[26]Quite apart from the fact that I do not agree with the conclusion she invites me to reach that, quite plainly, this was not training, for reasons for which I shall turn, I would deprecate the suggestion that there needs to be, or ought to be, such kind of detailed analysis of the syllabus of a scheme in order to decide whether it is a training scheme or a work experience scheme; and I shall endeavour to address what Ms Outhwaite submits to be the disturbing consequences of my decision and of that of the Chairman of the Employment Tribunal in due course in this Judgment.

[27]That is the starting point; namely that I would need to be persuaded that Daley, as now extended, does not lead to the conclusion that this case is covered within the extended s13. But I turn to the main matter which persuades me of the correctness of the Chairman's decision, and that is s78 itself. Ms Outhwaite warns that we should not address the mind of the draftsman of the 1976 Act looking at it with 2006 spectacles, and she points - and I shall deal with that argument separately in a moment - to the more modern regulations in which there is specific reference to work placement or work experience. It is quite apparent from Daley itself that there was nothing new about work experience or work placement in the 1980s and I have no reason to doubt that there were such schemes in existence in the 1970s, but in any event I do not need to look for historical perspective in that regard because of course what is significant is that s13 was amended in 1989, and we are looking here at the amended wording and looking at it, as we are entitled to do, through Daley spectacles.

[28]However, what remained in the statute at all times was s78. S78 specifically states, as I have already recited, that training, for the purpose of the statutes and the entirely of the statutes, "includes any form of education or instruction". Ms Outhwaite's submission, in effect, amounts to the suggestion that what she calls 'passive' education is not education, and thus not training, or at any rate even if education not training, and that of course is the flaw in her argument. Instruction would plainly be training in those circumstances, because it would be active: assimilation by watching would not, on her analysis, be instruction, but I see no basis on which it need not be, or could not be, education. And where the definition of training is 'any form of education', it seems to me that 'passive' education, if it be education, is included in the definition of training.

[29]So far as the evidence in this case is concerned, we see what occurred. The participants in the scheme are called students; that can be seen from Mr Walter's statement, although that perhaps could be explained by the fact that since, as I stated earlier, the course takes place in what would otherwise be a student's vacation, it may be that all the people taking part can be described as students, because that is what they are doing the rest of the year. And so perhaps one therefore should not place too much emphasis on the words used by Mr Walters in paragraph 5 of his statement when he says:

"In essence departments will provide students with the opportunity to shadow Government lawyers."

[30]But looking at the content of the course as described in the brochure, to which I referred earlier, there is included a substantial passage headed up "feedback from recent participants". One of them, under the heading "what you most enjoyed about your placement" states:

"It's hard to find one thing. I found the whole experience very positive. I enjoyed meeting everyone and finding out why they chose the GLS… I learnt a lot and felt like part of the team."

Earlier in the same passage there is a description as to what they did, which is consistent of course with the letter from the GLS which I have already recited. And then it concluded:

"The work proved challenging yet satisfying, demonstrating that a placement student need not embark on monotonous, mundane and repetitive tasks."

[31]And then under the heading "What they learned about the department and the work of the GLS", there is a statement " "the placement has improved my understanding of the Department's structure, clients and areas of work". Although of course not contained in a published brochure, and thus perhaps less significant on a general objective basis, nevertheless on the facts of this case one can look at the words of the Respondent himself when he applied to join the scheme, under the heading of one of the questions on the application form "Why are you interested in a vacation placement with the GLS?" He replied:

"To acquire more knowledge and skills from the Government Legal Service, which already has a renowned roll call of impacting intellectual and practical experience."

[32]In my judgment it is quite plain that the VPS and the content of its ten day exercise constitutes "any form" of education. I can see Ms Outhwaite's concern that there should not be some kind of temporal distinction, whereby one looks to see how long a course takes before deciding whether it amounts to training or not. That would be almost as unhelpful as a detailed analysis of the precise syllabus, such as I deprecated earlier in this Judgment. But nevertheless it does seem to me that there is a substantial differentiation from a tour given to people who may be interested in taking part, such as in examples I threw out in the course of the hearing, of someone being shown, with or without parents, round a prospective school, inspecting the laboratories or the classrooms, and being shown students being taught, or perhaps a day's visit to a Court for someone to sit in on cases, perhaps to sit with a Judge or on the bench watching what goes on. It seems to me that there is a very substantial difference between a visit of that kind, which would be wholly unlikely to take more than a day, unless, as I canvassed with Ms Outhwaite, it was a very large building with a large number of departments – a Vatican museum - where just a tour round may take more than one day, and, as here, a 10-day course with a programme, which cannot, in my judgment, be said to be anything other than a form of education, in which those taking part are learning something.

[33]The third basis upon which I conclude against Ms Outhwaite is by reference to dealing with her examples in other statutes and directives. The fact that in the Disability Discrimination Act work placement, although not education, is specifically dealt with, does not impact on the definition in s78 of the 1976 Act of training as being "any form of instruction and education".

[34]As for the other statutes and directives, they simply, in my judgment, spell out what is or can be included in training. They do not amount to a special definition of training for the purpose of that Act or that Directive only. And indeed it could be said that the fact that training is recited, for the avoidance of doubt, to include work experience if anything militates against Ms Outhwaite's argument, particularly given the rather more general approach to construction which is adopted in the European field. I note that in Article 3 of the 2000 Directive which she referred to me, and from which I have recited Article 3(1)(b) with regard to " including practical work experience" there is in Article 3(1)(e) the provision "social protection including social security and healthcare" and in (h) "access to and supply of goods and services which are available to the public, including housing". It is apparent to me that in (b), (e) and (h) the words that are added at the end, including something or other, are simply statements of what is included, and not a special definition so as to bring within a definition words which would otherwise be outside that definition.

[35]Finally I stand back and ask myself whether there is any principled reason why the 1976 Act should not apply to work experience or work placement. I see none, and there appears to me to be no distinction from that point of view between applying the principles of race relations, and anti-discrimination law, to 'training proper', as Ms Outhwaite would have it, and to work placement or work experience. I can see that if there is simply an educational visit then that might fall within a different category, but that is not this case, and I am entirely clear that the Chairman, for all the reasons I have given, was correct to find the preliminary issue in favour of the Claimant.