H M PRISON SERVICE v MR C POTTER [2006] UKEAT 0457_06_1411

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0457_06_1411Case No Appeal No. UKEAT/0457/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
H M PRISON SERVICEAPPELLANTMR C POTTERRESPONDENT
Before
Mr Justice EliasDate 14 November 2006
[1]APPEARANCES For the Appellant MR THOMAS LINDEN QC (One of Her Majesty's Counsel) The Treasury Solicitor (Employment Law Team) 1 Kemble Street London WC2B 4TS For the Respondent MR LEE BARNES (Representative) SUMMARY Practice and Procedure – Striking-out/dismissal Should case be struck out on the grounds that it has no reasonable prospect of success? Employment Tribunal held that it should not, because although very weak, it was a case where the evidence should be heard. The EAT held that there was in substance no error of law in that analysis. The issue was complicated because the Claimant and the Tribunal considered the claim to be one of indirect discrimination whereas the EAT held that it was direct. A claim of indirect discrimination could not succeed, but the claim for direct discrimination turned on the evidence. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) In this matter the Appellant challenges a decision of the Chairman, Mr Goodchild, sitting at Leicester, whereby he declined to strike out the Claimant's claim pursuant to paragraph 18(7)(b) of schedule 1 to the Employment Tribunal's (Constitution and Rules etc.) Regulations 2004 . He did, however, order that the Claimant pay a deposit of £500 pursuant to paragraph 20 of schedule 1. In order to strike out the claim the Chairman must be satisfied that it has no reasonable prospect of success. By contrast a deposit can be ordered in circumstances where it has little reasonable prospect of success.[2]The background is as follows. The Appellant, the Prison Service, introduced a mandatory instruction in August 2001. It precludes the appointment or employment of individuals who are members of any political organisation with a racist philosophy, or those with racist aims, principles or policies. This policy was adopted pursuant to the obligations which the Prison Service has under section 71 of the Race Relations Act 1976 , as amended by section 2 of the Race Relations Amendment Act 2000 . That provision broadly requires it, in carrying out its functions, to have regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups. The policy applies to all who work in the Prison Service, whether directly or indirectly employed. So far as is material, it provides as follows:
"The Prison Service has a policy of prohibiting people who work for it from being members of groups or organisations considered to have racist philosophy, principles, aims or policies. This is in support of the Service's declared principles and policy for promoting and sustaining racial equality and harmony."
[3]It is then specified that certain organisations are deemed to be racist organisations. They are set out in the appendix, and they include the British National Party (BNP), the National Front and Combat 18. It is, however, specifically stated that these are not exhaustive, and indeed the appendix adds, "… or any other group or organisation promoting racism". Racism itself is defined in a way which is designed to encompass racism on the part of persons of all races and origins:
"Racism, in general terms, consists of conduct or words or practices which disadvantage or advantage people because of their colour, culture or ethnic origins. In its more subtle form it is as damaging as it its overt form – Stephen Lawrence Report."
[4]There are then various procedures which have been adopted and which are designed to give effective implementation of the policy. Advertisements are required to state that, "applications will be required to declare whether they are a member or group which the Prison Service considers to be racist". Each applicant for employment must sign a declaration confirming "I am not a member of any of the groups or organisations listed above, nor any other with racist philosophy, aims, principles or policies within the definition provided".[5]The Claimant admits that he is an active member of the BNP. He made an application for employment with the Appellant at the beginning of 2003. In accordance with the policy his application was rejected. He complained at that time of political, but not racial, discrimination. He then applied for a position in September 2005 as an operational support grade at Gartree Prison. He declared, on the application form, that he was member of the BNP. He was in fact invited for interview. That was an oversight and is inconsistent with the policy. On 26 September he wrote pointing out that he was a member of the BNP, whereupon his application for employment was rejected by a letter dated 27 September 2005. He then issued proceedings in which he alleged race discrimination. It seems that he may have derived some succour from the decision of this Tribunal in Redfearn v Serco Ltd [2005] IRLR 744, which indicated that, in certain circumstances, discrimination against members of the BNP could constitute race discrimination. His claim form said this:
"On 16 September 2005 I applied for the post of operational support grade at the Prison Gartree. The post was advertised in the local newspaper. I received a letter requesting me to attend for interview for the post but, when I asked for confirmation about my status, I was subsequently declined on account of my membership of a political party, the British National Party. I am bringing this case to a Tribunal on account of racial discrimination as the British National Party is a recognised ethnic political party, and this has been established under the law in a previous legal precedent [and then there is a reference to Redfearn v Serco ]. As a white Anglo-Saxon I have been racially discriminated against by HM Prison Service."
That was submitted on 6 December. Subsequently, on 9 December, there was a further clarification. The Claimant wrote to the Employment Tribunal and said this:
"On the grounds of my claim I wish to provide the following information. I am claiming indirect discrimination on the grounds of race, ethnic origin and national origin against HM Prison Service."
[6]The Appellant applied to strike out the Claimant's claim on the grounds that it had no reasonable prospect of success. A hearing was convened for 28 February 2006. The application at that stage was granted, but the Claimant failed to appear. It seems that he did not receive notice of the hearing. Subsequently, therefore, there was a further hearing, at which the Chairman made the order to which I have referred.[7]There is some confusion about precisely what claims were being advanced before the Employment Tribunal by this Claimant. Plainly he was claiming indirect discrimination; that is specifically referred to in the letter of 9 December. Whether he was, in addition, claiming direct discrimination, I have to say, does not seem to me entirely clear. The Tribunal did in fact consider both direct and indirect forms of discrimination. It said this at its fourth ruling in the Judgment:
"The claim that the Claimant was directly discriminated against, when, by reason of his race, which the Claimant in any event was not pursuing, is, for clarity's sake, struck out as it has no reasonable prospect of success."
It appears from that that the Tribunal had clarified that there was no allegation of direct discrimination but, maybe because of the uncertainty, they dealt with the matter in any event.[8]The finding in relation to the direct discrimination was that the reason why the Claimant had been refused employment was his membership of the British National Party. The Tribunal considered that in the light of the Judgment of Mummery LJ in the Court of Appeal in the case of Redfearn v Serco [2006] IRLR 623 , which reversed the decision of the Employment Appeal Tribunal that the claim for direct discrimination could not succeed. In the Redfearn case, Mummery LJ spelt out why discrimination directed against somebody because of membership of the BNP could not be direct discrimination in the following terms (paragraph 49):
"Mr Redfearn was treated less favourably, not on the ground that he was white, but on the ground of a particular non-racial characteristic shared by him with a tiny proportion of the white population; that is membership of, and standing for election for, a political party like the BNP. Serco was not adopting a policy which discriminated on a dividing line of colour or race. Serco had applied the same approach to a member of a similar political party which confined its membership to black people. The dividing line of colour or race was not made by Serco but by the BNP which defines it own composition by colour or race. Mr Redfearn cannot credibly made a claim of direct race discrimination by Serco against him on the ground that he was white by relying on the decision of his own chosen political party to limit its membership to white people. The BNP cannot make a non-racial criterion (party membership) a racial one by the terms of its constitution limiting membership to white people. Properly analysed, Mr Redfearn's complaint is of discrimination on political grounds, which falls outside the anti-discrimination laws."
[9]The Chairman then made a ruling in relation to indirect discrimination. He said this (paragraph 10) :
"I now come to the issue of indirect discrimination, which has caused me worry. The worry, in my view, is that it is a matter in which further evidence might assist and might change an initial view. To strike out any application, as it has been recently observed by both the Employment Appeal Tribunal and the Court of Appeal, is something which should be exercised in very restricted circumstances. In this case the Claimant is saying as follows: "
I applied for a job. They had a policy which, on the face of it, was not directly discriminatory. Its object was one that was to be anti-racist, but they applied it in a way which was only against white organisations." He says that the list had been like that over three or four years. It was supposed to be reviewed on a regular basis. It never was. This, he says, shows that it was aimed at white organisations." I should add that, although the Chairman referred to decision of the Employment Appeal Tribunal and the Court of Appeal, the considerable caution which Tribunals should exercise before striking out cases, particularly where discrimination is alleged, is emphasised by Lord Steyn in the case of Anyanwu v South Bank Student Union [2001] IRLR 305 ; [2001] ICR 391 at paragraph 24 when he said this:
"In the result this is now the fourth occasion on which the preliminary question of the legal sustainability of the Appellant's claim against the University is being considered. For my part such vague reason discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process, except in the most obvious and plainest cases. Discrimination cases are generally fact sensitive and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits, or demerits, of its particular facts is a matter of high public interest. Against this background it is necessary to explain why, on the allegations made by the Appellants, it would be wrong to strike out the claims against the University."
That observation was heavily relied upon by Mr Barnes, who was representing the Claimant in this case. It is right to point out that, in the best traditions of the Bar, it was drawn to his attention by Mr Thomas Linden QC for the Appellant.[10]The relevant statutory provision is found in the Race Relations Act 1976 , section 1(1)(a). It is as follows:
"A person also discriminates against another if, in any circumstances relevant for the purpose of any provision referred to in subsection 1(b), he applies to that other a provision criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, b) which puts that other at that disadvantage, and c) which he cannot show to be a proportionate means of achieving a legitimate aim."
I should add that, although the appropriate definition for indirect discrimination appears to be that contained in section 1(1)(a), Mr Linden pointed out the wording of the original section 1(1) would also, in principle, appear to be capable of application. In other words, section 1(1)(a), which was in fact designed to give effect to the United Kingdom's European obligations, and to adopt the definition of indirect discrimination which has been adopted in Europe, appears to supplement in this regard the existing legislation. I say no more about it because nothing, it seems to me, of significance turns on it in this particular case.[11]Mr Linden puts forward three reasons why there is no possibility of the claim for indirect discrimination succeeding. First he submits that there is simply no evidence from which it was possible to infer that there was a disparate impact; that is that section 1(a)(a) had been satisfied. The ban applies across the board to all members of racist organisations and not just white racist organisations. No doubt the proportion of white people who would be adversely affected by this policy would be very minimal, but there is no reason to suppose that the proportion of non-white people would be any different. There is no basis on which it could be assumed that non-whites are inherently more racist than whites. Accordingly the case simply does not get off the ground. Further and in any event he submitted that I was bound by the decision by the Court of Appeal in Redfearn v Serco which, in a very similar context, had considered the issue of indirect discrimination and had identified the relevant pool from which any assessment of disparate impact would have to be made. In that case Mr Redfearn had been dismissed from his employment when it was discovered that he was to be a candidate representing the British National Party at a local election in June 2004 for the Bradford City Council. One of the issues is whether a policy designed to take action only against members of the BNP, which is open to white persons only, constituted a form of indirect discrimination.[12]The Employment Tribunal considered that the relevant pool would be members of the BNP. Mummery LJ disagreed and he said this at paragraph 54:
"The Employment Tribunal appears to have attempted itself a version of a provision criterion or practice in paragraph 5.6 of its decision… However, it is formulated too narrowly (membership of the BNP) to be meaningful. A provision of membership of the BNP could not be applied to a person who is not of the same colour as Mr Redfern because any persons of the same colour as him (white) are eligible to be members of the BNP. A more general and meaningful provision along similar lines would be one applying to membership of a political organisation like the BNP which existed to promote views hostile to members of a different colour than those that belong to the organisation. If such a provision where applied, however, it would not put persons of the same race as Mr Redfern "at a particular disadvantage" when compared with other persons within section 1(1)(a) of the 1976 Act. All such political activists would be at the same disadvantage, whatever colour they were."
That, says Mr Linden, is precisely the position here and this Tribunal is bound by that analysis.[13]We accept that, at least on the assumption that there is no reason to believe that non-rights are any more or less racist that rights - and we think that it a justified assumption - that ruling, with respect, is plainly correct and in any event we must follow it. Indeed Mr Barnes for the Claimant does not, as I understand it, seek to challenge the contention that, as long as this policy was properly applied across the board, it would not constitute any form of indirect discrimination. His contention is that it was never intended in fact to be applied equally to all and that it has not been so applied in practice. On this ground, therefore, I conclude that it is not possible for the Claimant to establish any indirect discrimination.[14]Mr Linden relied upon two other matters. I can deal with them briefly in view of my finding on the first matter. He submitted that in any event it was always open to the Claimant to resign from the BNP, in which case he could join the Prison Service. He was not, therefore, put at a disadvantage. I would not have been prepared to conclude that a finding of indirect discrimination could be avoided on this basis alone. It is clear that whether someone can or cannot comply with a particular practice or provision is not to be determined simply by looking whether they could, in theory, take such a step, or even whether they could do so without undue difficulties. In Mandla v Dowell Lee [1983] 2 AC 548 , for example, the question was whether a Sikh who wore a turban was being discriminated against when he was refused admission to a school. It was accepted that, of course, the child could choose to give up the turban. It was a theoretical possibility but it would not have been consistent with the customs and cultural conditions of his group. One can think of various other examples. It is surely not open to an employer to say that a woman who cannot say work flexible hours because of child care responsibilities has chosen to have children. Similarly I doubt whether an employer could say, although this may be more contentious, that if a woman could afford child care that she is then disadvantaged if she refuses not to purchase that child care. Mr Linden makes the very powerful point that these and other examples are significantly different from this case and he says that it would be inconsistent with the underlying purpose of the race relations legislation to permit someone to allege indirect discrimination where the basis of that discrimination is their refusal to resign from a racist organisation. As I said I see very considerable force in that but I would not have been prepared to determine that issue at this stage without a much fuller analysis of the relevant authorities.[15]Mr Linden also submitted that the policy was in any event justified. It was implemented to carry out the Prison Service's obligations under section 71 of the Race Relations Act , and they were entitled to seek to remove racists from the body of prison officers. There is plainly a great deal of force in that argument. But it seems to me that certain issues do arise, including for example the rights of freedom of expression under article 10 and freedom of association under article 11 of the European Convention which would feed into the justification argument. This, I think, was recognised in the Redfearn case in the Court of Appeal where the point was raised and briefly discussed by Mummery LJ, but it was not necessary for him to decide the point. It may be, and I put it no higher than this, that a blanket rule that precludes someone from being a member of a racist organisation, even where for example they keep their membership a secret or do not bring their views into the working environment at all, might not necessarily be justified at least simply on the basis that they belong to a racist group. It is an issue which, in my view, may need further evidence. For example it may be necessary in those circumstances for the prison authorities to put forward reasons why a mere membership of itself, even if kept well away from the working environment, would still create difficulties for the Service so as to justify a blanket policy. I emphasise that all I am indicating here is that I would not have been prepared at this stage, on the state of the evidence, to assume that the Prison Service would inevitably be able to establish justification. However, since the issue of disparate impact, in my view, could not be established, I accept that the claim of indirect discrimination is bound to fail.[16]That is not, however, the end of the matter it seems to me. As I have indicated the Claimant is saying that, although this policy is ostensibly neutral, it is in fact only being applied to white organisations. Mr Barnes indicated that the Claimant would want to adduce certain evidence to support that, including certain observations from Mr Narey when Head of the Prison Service, and some evidence to the effect that Claimants ostensibly from other groups have been differently treated. Apparently the Claimant himself has recently sent in bogus applications purporting to be from members of other racist groups and has been invited for interview. I have not seen that evidence. That is the kind of evidence that Mr Barnes submits he would want to submit. He contends that this differential treatment constitutes indirect discrimination. I confess that I find it difficult to see how it is indirect. If the practice is that the policy is applied only to members of white racist groups and not other minority groups then it seems to me that that is direct discrimination. It is less favourable treatment because of race.[17]This argument, it should be pointed out, is not on all fours with Redfearn . Redfearn establishes that it is not direct discrimination on grounds of race to discriminate against somebody because they are a BNP member. Here discrimination arises from the different treatment that is afforded to white racist organisations as opposed to members of racist organisations which are non-white. Mr Barnes relies strongly on the observations of Lord Steyn, to which I have made reference, and submits that it would be wrong in this case to shut out the Claimant at this stage without giving him an opportunity to marshal such evidence as he has to make good his allegation.[18]Mr Linden makes a number of submissions in response to this point. Fundamentally what he says in this. The complaint of direct discrimination, which this is, was never advanced before the Tribunal. If it was advanced it was rejected. And furthermore it has not been the subject of any appeal. The appeal is only against the finding of indirect discrimination. If that cannot succeed, and as I have indicated I agree that it cannot, then the appeal must succeed. The Tribunal cannot legitimately resurrect a claim which perhaps never existed and which in any event is now dead. He also submits that the Claimant has not even identified enough evidence to establish a prima facia case of direct discrimination.[19]I see the force of this. I would agree certainly that if the Claimant were now pursuing a direct discrimination claim, which was being raised for the first time on appeal, then the submission would be unanswerable. What concerns me is this. It is clear from the Tribunal decision that the case was in fact being argued below essentially in the same way which it is now being advanced. I have already referred to paragraph 10 of the Tribunal decision. It is clear that what was being said was that an apparently neutral policy was not being applied in a neutral way, but was only being applied against white organisations. It was suggested that a failure to review the list of banned organisations was some evidence of that. The Chairman saw this as a form of indirect discrimination.[20]I think, with respect, that he was wrong to do so and, for reasons I have given, I think this amounts to direct discrimination. But the Chairman was concerned in any event that he should not dismiss the particular claim without hearing evidence. The Prison Service say that the policy was being applied to all racist organisations, and certainly that was the intention, whereas the Claimant says it was being applied so as to prejudice white races only. The Chairman thought that in these circumstances he should not dismiss the case at this stage without the disputed accounts being tested against the evidence.[21]Not without some hesitation, it seems to me that there was no error of law in that particular analysis. It seems that the Claimant, perhaps taking his lead from the Tribunal, assumed that he was alleging indirect discrimination. As I have said, indirect discrimination does not get off the ground. But in my view we have to focus on the substance and not the form. At all stages he has been alleging that the policy was not applied in the apparently neutral way in which it is framed. I do not think it would be right to strike out the case solely on the grounds that the complaint has been mis-described in legal terms. That is particularly so where the Claimant is a litigant in person.[22]I see the considerable irony in the Claimant alleging a breach in the Race Discrimination Act , which is an anathema to racists in any event, on the basis that some racists are treated in a racially discriminatory way and less favourably treated than other racists. I also agree with the Chairman that the prospect of the Claimant being able to establish this allegation at trial is very thin. But I do not think that he made an error law in suggesting that it was a case that should be heard in open Tribunal before three members. As I say, I think the evidence is, on the face of it, very weak, but bearing in mind Lord Steyn's dictum and the relatively serious nature of the allegation which has been made, I have come to the conclusion that the Chairman did not err in law save that he described what is, in my view, direct discrimination as indirect. He felt some concern about striking the case out without the evidence being tested. As I say I think he was entitled to reach that view and did not err in law in reaching that conclusion. So for that reason, albeit on a rather different basis than that which was put by the Claimant, I would reject the appeal.

Cited in 1 later judgment