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Cite as: [1988] EWCA Civ 10, [1988] IRLR 399

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JISCBAILII_CASE_EMPLOYMENT

Neutral Citation Number: [1988] EWCA Civ 10
Case No:

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Mr. Justice French)

Royal Courts of Justice
26th May. 1988

B e f o r e :

LORD JUSTICE DILLON
LORD JUSTICE BALCOMBE
and
LORD JUSTICE STAUGHTON
BETWEEN:
____________________

MR. S. M. MEER
 Appellant (Appellant.)
and
LONDON BOROUGH OF TOWER HAMLETS
 Respondent (Respondent)

____________________

(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London WC2).

____________________

MR. STEPHEN SEDLEY, Q.C. and MR. JOHN SPRACK (instructed by Messrs Bruce Piper & Co.) appeared on behalf of the Appellant/Appellant.
MR. MICHAEL BELOiF, Q.C. and MR. P. ROSE (instructed by the Solicitor to the London Borough of Tower Hamlets) appeared on behalf of the Respondent/Respondent.
____________________

HTML VERSION OF JUDGMENT
 ____________________

Crown Copyright ©

(Revised)

LORD JUSTICE DILLON: I will ask Lord Justice Balcombe to give the first judgment.

    LORD JUSTICE BALCOMBE: This is an appeal with the leave of Neill L.J. from a decision of the Employment Appeal Tribunal presided over by French J. given on 15th May 1987. By that decision the Employment Appeal Tribunal dismissed the appellant's appeal against the decision of the Industrial Tribunal given on 21st April 1986 which had in turn dismissed his complaint that he had been discriminated against by the respondents, the London Borough of Tower Hamlets, contrary to the Race Relations Act 1976. The appellant, Mr. Meer, is of Indian origin. He is an admitted solicitor. He has local government experience in legal posts going back to 1967. At the time with which the case was concerned he had been a principal solicitor to the London Borough of Brent since 12th January 1976. Early in 1985 the London Borough of Tower Hamlets had a vacancy for the head of its Legal Department and in February of 1985 it advertised that vacancy. The form of that advertisement is given at page 76 of our bundle and I will refer to its more important points. It is headed "London Borough of Tower Hamlets. Solicitor to the Council". There is a salary range mentioned and the reason for the vacancy. It continues: "The successful applicant will have had extensive experience as a local government Solicitor ....". It makes certain other general requirements as to experience. "Applicants are considered on the basis of their suitability for the post regardless °f sex, racial origin, marital status, disablement or age." It then contains information as to where application forms can be obtained and appears to have been inserted both in

    the Law Society Gazette, the Local Government Chronicle and in two magazines which circulate amongst the ethnic population. The appellant saw the advertisement in the Local Government Chronicle and he applied for the post.

    We now know that there were 23 applicants for the post, four of whom had had previous experience with the London Borough of Tower Hamlets. The reason for my stating that will shortly become apparent. Of those 23, 12 were selected for a long list by the use of certain criteria which appear in a letter which was subsequently written to Mr. Meer and appears at page 170 of our bundle. The letter states:

    "The criteria for long-listing were based on an informal system arising from the following factors:
    1. Age
    2. Date of admission as Solicitor ....
    3. Present Post
    4. Current Salary
    5. Local Government Experience
    6. London Government Experience
    7. Inner London Government Experience
    8. Senior Management Experience
    9. Length in present post
    10. Tower Hamlets Experience."

    The twelve people on the long list included all four of those who had Tower Hamlets' experience and they were interviewed. Of those 12 five were shortlisted, including two with Tower Hamlets' experience. From those five one was eventually appointed - again a person who had Tower Hamlets' experience. The appellant was not long-listed, although we were told at the beginning of this appeal - and I would like to record the fact to indicate that there was no personal objection to him - that he has since obtained a post as head of the legal department of another London Borough.

    The appellant applied to the Industrial Tribunal alleging discrimination. The claim before the Industrial Tribunal was based on direct discrimination under section 1(1) (a) of the 1976 Act. That head of claim was dismissed and from it there has been no appeal. In the alternative the appellant claimed that there had been indirect discrimination under section l(l)(b) and it is that claim which the appellant has pursued before the Employment Appeal Tribunal and now before this court.

    I refer to the relevant provisions of the Race Relations Act 1976. Section 4(1)(a) is in these terms:

    "(1) 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;"

    I now turn to section 1(1)(b):

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

    Although I have read the sub-paragraph in full, this case turns on the meaning of the words "a requirement or condition".

    Finally I refer to section 3(1) which defines 'racial qroup'in the following terms -

    "(1) In this Act, unless the context otherwise requires -
    'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls."

    It is common ground that the appellant, as an Indian, belongs to a racial group.

    The first and major point of this appeal is whether the criterion of Tower Hamlets' experience, which I have quoted from the letter of 29th August 1985, was a condition or requirement of the arrangements made for the purpose of determining who should be offered the job at the head of the Tower Hamlets Legal Department. It is clear that it was not a condition of the same class as that the applicant had to be, an admitted solicitor.

    Mr. Sedley, in an attractive argument, has put his case in this way. He submitted, first, that the condition or requirement was that to maximise his chance of selection the candidate must have had Tower Hamlets' experience, and secondly, the effect of this was to discriminate against the appellant's racial group who were unlikely to be able to fulfil the condition. As a matter of fact the Industrial Tribunal said that "the evidence was slender and vague as to how many 'blacks' had ever been employed as solicitors in Tower Hamlets and there was no evidence about Indians in particular" and they inferred as a finding of fact that it was "appropriate to draw the inference that no Indian solicitors at all were likely to be able to fulfil this condition."

    I go back to the question of the meaning of "condition or requirement". On this we were referred to a number of cases which suggest that the policy of the 1976 Act is to construe the words "requirement or condition" generously. I refer in particular to a decision of the Employment Appeal Tribunal, with Browne-Wilkinson J. presiding, in Clarke v. Eley (IMI) Kynoch Ltd [1983] I.R.C. 165 and to a passage at pages 170 to 171E. I need say no more about it because, although the passage undoubtedly says that "requirement or condition" shall be given a liberal construction, it was in a context wholly different from that which we have to consider in this case.

    However, in this case the Employment Appeal Tribunal held that the point had been concluded by a decision of this court in Perera v. Civil Service Commission and Another (No.2) also reported in [1983] I.C.R. at 428. If they are right we. are equally bound, so I turn to Perera. I start with the headnote:

    "The complainant, aged 42, was a qualified advocate in Sri Lanka when he came to England in 1973. He became an executive officer in the Civil Service and a member of the English Bar. In 1977 he applied for the position of legal assistant in the Civil Service and he was interviewed and assessed as unsuitable for the post by an interview board. He complained to an industrial tribunal, inter alia, that the board discriminated against him, contrary to section 1(1)(a) and (b) of the Race Relations Act 1976, by taking into account factors relating to experience in the United Kingdom, command of English, British nationality and age. The industrial tribunal, having found that the board took those and other factors into account but, also, that the decision was based on the complainant's personal qualities, dismissed the complaint. The Employment Appeal Tribunal upheld the industrial tribunal's decision.

    On the complainant's appeal:"

    (The first part of the headnote deals with "direct discrimination" under section 1(1) (a), which was not in issue in this case by the time it reached the Employment Appeal Tribunal)

    "(2) That a person claiming, by virtue of section 1(1) (b) of the Act, that he had been discriminated against must prove that a requirement or condition had been applied to him with which he had been unable to comply and with which a substantially smaller proportion of qualified persons of his racial group would be able to comply than the proportion of similarly qualified persons of a different racial group; that the board in taking a number of factors into account in assessing the personal qualities of the applicant were not thereby applying a condition or requirement and, accordingly, the complaint under section 1(1)(b) also failed."

    It is to be noted that the complainant in Perera's case appeared in person. He was, of course, a member of the Bar.

    I take the facts of that case, so far as they are relevant, from the judgment of Stephenson L.J. at page 430

    "According to the appeal tribunal, it was clear from the evidence before the industrial tribunal that in making their selection the board took four factors into account among others: whether the complainant had experience in the United Kingdom, whether he had a good command of the English language, whether he had British nationality or intended to apply for it, and his age. His interview with the board lasted for about half an hour. He was asked a number of questions and he was graded under four letters, A to D. C meant only fair and D meant poor."

    I turn to page 434D:

    "Indirect discrimination is always more difficult to consider and decide. The appeal tribunal considered it with care. They pointed out that the complainant's case on indirect indiscrimination arose in an unfortunate way. In giving the judgment of the appeal tribunal Browne-Wilkinson J. said .... [what now follows is a quotation from the judgment of Browne-Wilkinson in the Employment Appeal Tribunal]:

    'the complainant's case based on indirect discrimination arose in an unfortunate way. The case based on indirect discrimination was not opened and the respondents were not aware that any such case was being put until counsel made his closing speech on the complainant's behalf. Counsel for the respondents protested, but the industrial tribunal did not rule on the point. It follows that all the evidence was taken and the submissions for the respondents were made in ignorance that a case of indirect discrimination was being made under this head. As a result, no evidence was led on whether any requirement imposed by the employers could be justified for the purposes of section l(l)(b)(ii) of the Act. Before us, the complainant has submitted that, although there was no 'requirement or condition' expressly applied to him or communicated to him, the way in which the interview was conducted showed that the lack of a number of factors taken into account by the interviewing board in fact constituted the application of a condition or requirement. Thus, he says, although lack of, say, British nationality by itself might not have been a bar to selection, a candidate who was neither a British national, nor had United Kingdom experience, nor whose command of English was very good, nor was young, stood no chance of selection. Therefore, says the complainant, the interviewing body in fact applied a requirement that candidates of whatever racial origin should have these qualities. That this happened in this case, says the complainant, is shown by the evidence and by the chairman's remark that he was "clearly short of minimum recruitment standard".'"

    Stephenson L.J. continues:

    "The appeal tribunal went on to criticise the way in which the industrial tribunal had dealt with the case of indirect discrimination ..... The appeal tribunal pointed out that the industrial tribunal did not expressly deal with that argument of the complainant, saying ....:
    'we do not find their reasoning in dismissing the claim based on indirect discrimination very satisfactory. It seems to us that, quite possibly due to the late stage at which the point was taken, the industrial tribunal have not really appreciated that there can be indirect discrimination without the employers having displayed or intended any racial prejudice of any kind. Where indirect discrimination is alleged, the issues are entirely objective: was there a requirement or condition? Was it more difficult for those of the complainant's ethnic group to meet such requirements? The relevant question is not whether any requirement or condition was imposed for the purpose of making it more difficult for those of the complainant's ethnic group to qualify.'"

    A little later Stephenson L.J. continued:

    "They went on to uphold [the submission of Miss Caws] that there was no evidence to support indirect discrimination in the case. They pointed out that if the lack of a combination of features - a number of factors - was held to constitute an absolute bar to selection, that might constitute the application of a requirement or condition; but they said that there was no attempt made, either in examination or cross-examination, to establish that the combination of the several factors admittedly taken into account by the board as plus or minus factors together produced a requirement or condition; that was necessary, and only if the evidence had established that they combined lack of a number of those factors constituted an absolute bar to selection would it have been demonstrated that a condition or requirement had been applied. They found that the evidence did not go anywhere near that far, and accordingly they held that the complainant had not established his case on the basis of indirect discrimination."

    At page 436F he continued:

    "The matters which have to be established by an applicant who claims that he has been discriminated against indirectly are, first of all, that there has been a requirement or condition, as the complainant put it, a 'must': something which has to be complied with. Here there was a requirement or condition for candidates for the post of legal assistant in the Civil Service: it was that the candidate should be either a qualified member of the English Bar or a qualified solicitor of the Supreme Court of this country - an admitted man or a barrister; and those conditions or requirements - those 'musts' - were fulfilled by the complainant. But, as he admitted in his argument before the appeal tribunal and before this court, there is no other express requirement or condition, and he has to find a requirement or condition in the general combination of factors which he says the interview board took into account. He cannot formulate, as in my judgment he has to, what the particular requirement or condition is which he says has been applied to him and to his attempt to obtain a post of legal assistant. That is the hurdle which, as it seems to me, he is unable to get over. If he were able to prove a particular requirement or condition, he would then have to prove that it had been applied by the board. Then he would have to prove one further thing, namely, that a substantially smaller proportion of persons of his racial group would be able to comply with that requirement than the proportion of similarly qualified persons in a different racial group - similarly qualified because, as Miss Caws has pointed out, like must be compared with like."

    Then at the foot of page 437:

    "I do not find that the industrial tribunal singled out the four factors which are singled out by the appeal tribunal and on which the complainant so strongly relies. But in my opinion none of those factors could possibly be regarded as a requirement of a condition in the sense that the lack of it, whether of British nationality or even of the ability to communicate well in English, would be an absolute bar. The whole of the evidence indicates that a brilliant man whose personal qualities made him suitable as a legal assistant might well have been sent forward on a short list by the interview board in spite of being, perhaps, below standard on his knowledge of English and his ability to communicate in that language.
    That is only an illustration, but once it appears clear from the evidence that the industrial tribunal were entitled to conclude that it was personal qualities for which the interviewing board were mainly looking, and it was personal qualities, as stated in the chairman's report and as was made clear by the markings of all the members of the board, which, in the opinion of the board, the complainant lacked, and that that was the reason for not sending him forward on the short list, the case of indirect discrimination which the complainant seeks to make, in my opinion, falls to the ground.
    As I have said, I think the appeal tribunal correctly stated the law as to indirect discrimination. I agree with them that there was no application here of any requirement or condition, and no evidence of it. In my judgment the complainant has failed to prove what he has to prove in order to show a case of indirect discrimination.
    I would have been content to express my agreement with the appeal tribunal on both direct and indirect discrimination, but because I feel considerable sympathy with the complainant, highly qualified in many respects as he is, and having his application to go forward for consideration for the post of legal assistant turned down, I have thought it right to go into more detail in the case which he has made before us before dismissing, as I feel bound to do, his appeal."

    0' Connor L.J., at the foot of page 438, said:

    "The complainant has submitted that because the Civil Service Commission asked the interview board for their opinion on certain attributes of the candidates, those amounted to requirements or conditions.
    For my part, I cannot accept that. It is only necessary to look at the request made by the commission to the interview board. In making their assessment, they were asked to give their opinion, individually, of the personal qualities of the applicant, his ability to communicate, his intellectual capacity and his potential; and in order to help the members of the board to form an opinion, the four categories were further particularised. For example, in considering their opinion on personal qualities they were asked to apply their minds to maturity, common sense and ability to get on with people; and, in expressing their opinion, limiting it to whether it was very good, good, fair or poor.
    In my judgment it is quite impossible to say that that exercise was imposing any condition or requirement on the board in making up their mind or in giving their opinion. The evidence before the industrial tribunal from the two members of the interview board who gave evidence, as reflected in the judgment of the appeal tribunal, shows that in their general look at the applicants, and perhaps particularly at those applicants from overseas, they directed themselves that they should ask themselves whether the applicant had a good command of the English language, whether the applicant had British nationality or intended to apply for it, and the age of the applicant. Once again, it seems to me that none of those is a condition or a requirement; they are merely further examples of the means by which the individual members of the interview board were forming their opinion of an applicant. The fact that some applicants had opinions expressed about them which led to their not going forward on the short list is one of the facts of life; it is the whole purpose of an interview board and it is not the application of any condition or requirement within the meaning of section 1(1)(b) of the Act of 1976."

    Sir George Baker agreed with both judgments.

    I will finally refer to a brief passage from the judgment of Browne-Wilkinson J. in that case in the Employment Appeal Tribunal, which is reported in [1982] I.C.R.350. The passage to which I refer is at page 356E and it is summarised, although not quoted verbatim, in the decision of the Court of Appeal. Browne-Wilkinson J. in a reserved judgment said this:

    "In order to establish indirect discrimination in this way it is not enough to show that the board took into account one or more factors which candidates of the complainant's racial group were less likely to possess, since the lack of anyone of those factors by itself could be offset by a plus factor. Only if the evidence has established that the combined lack of a number of those factors constituted an absolute bar to selection would it have been demonstrated the condition or requirement had been applied. As we have said, we do not think the evidence goes anywhere near this far and accordingly hold that the complainant has not established his case on the basis of indirect discrimination."

    I have read from the judgment in Perera at rather greater length than I would have wished because of the way in which Mr. Sedley has put his arguments to us. That case seems to me clear authority that a requirement or condition under section 1(1) (b) of the 1978 Act is a must - something which has to be complied with. That case is therefore conclusive, unless it is not binding or is otherwise distinguishable. The binding effect of cases in the Court of Appeal has been long established. It was originally set down in Young v. Bristol Aeroplane Co. Ltd. [1944] 1 K.B. 718 and there has been a recent case in the Court of Appeal, Duke v. Reliance Systems Limited [1987] I.C.R. 491. I do not propose to refer to either of those cases in detail; they set out propositions which are well established.

    For his submission that the case is not binding upon this court, Mr. Sedley relies on the fact that Mr. Perera appeared in person and appears to have conceded, as is apparent from some of the passages which I have read, that the requirement or condition must be "a must" - it was something which had to be complied with and not merely something which could have affected the mind of the employer in that case. Mr. Sedley submits that the fact that the case was not argued by Mr. Perera in that way detracts from the authority of Rerera in the Court of Appeal.

    Some support for that view is afforded by the decision in this court in Pritchard v. J.H. Cobden Limited [1987] 2 W.L.R. 627. In that case the Court of Appeal held it was not bound by the earlier decision of the Court of Appeal on a particular point. But if one looks carefully at the reasoning behind that decision it was not a question of the point not being argued; the point was virtually conceded. The Court of Appeal in Jones v. Jones [1985] Q.B. 704, which was the earlier decision, never directed its mind to the point in question. I refer briefly to a passage from the judgment of O'Connor L.J. at page 639. He is referring to Jones v. Jones and he said:

    "The respondent did not appeal Stocker J.'s finding on the question of principle, but conceded that the issue was only one of quantification. The matter upon which the court decided the appeal does not seem to have been contested by the respondent save that the quantification was opposed on grounds of policy. Since that point was not argued, Jones v. Jones ... is not an authority binding on us."

    Sir Roger Ormrod at page 645G, setting out the submissions of counsel that Jones v. Jones ought not to be followed, said:

    "He further contends that although it is a decision of this court, it is riot binding on us because the question of principle was not argued and was, therefore decided."

    And at page 646E he said:

    "It is not possible to decide whether Jones v. Jones ..... is binding on us without first examining the argument that it was wrongly decided because [counsel's] case is that none of the grounds on which he relies were put before the court in Jones v. Jones. So, without disrespect to that court, it will be convenient first to approach the question of principle de novo."

    Finally, at page 649B (again referring to Jones v. Jones):

    "Counsel for the defendant in that case virtually conceded that damages were recoverable for the financial consequences of divorce, subject to his submission that as a matter of policy it should not be permitted, but he advanced only one reason for this, namely the 'floodgates' argument......It is clear, however, that none of the arguments put to us by [counsel] in Jones v. Jones.....and there is nothing to indicate that they or any of them were in the mind of the court when it reached its decision."

    It seems to me that when one reads carefully what was being said in Pritchard v. J.H. Cobden Ltd., the point was not considered by the previous Court of Appeal in Jones v. Jones: it was not a question of the case not being argued; it was a question of a concession. The Court of Appeal in Jones v. Jones never had to turn its mind to the point then at issue. It is quite clear that the Court of Appeal in Perera did turn its mind fully to the question whether a condition or requirement imposed an absolute bar in section 1(1) (b) of the Race Relations Act 1976. In my judgment, therefore, Perera is binding upon us and unless it can be distinguished it must conclude the decision in this case.

    Mr. Sedley sought to distinguish Perera on the ground that whether a condition or requirement is a 'must' depends on what it is needed for. He submits that Tower Hamlets' experience was not a 'must' for getting on the long list, but it was a 'must' for having the maximum chance of selection. But applying the analogy, so was the knowledge of English language, for example, in the Perera case, although that was not spelt out in so many words. If we were to distinguish Perera on this ground, it would be making a distinction of the kind which in my judgment tends to bring the law into disrepute.

    Had the case before us not been decided by Perera, as I believe it is, I accept that there are strong arguments for Mr. Sedley's submission that the absolute bar construction of "condition or requirement "may not be consistent with the object of the Act. But Perera is binding upon us. We have been referred to a recent article in the Industrial Law Review in which the author categorically states that "perera was one of the worst decisions ever under discrimination law and many hoped it would quietly disappear." That indicates to me a certain lack of understanding of the basis upon which the courts of this country operate. Decisions of the Court of Appeal are binding and, unless they can properly be distinguished, do not disappear. I accept that there are arguments - and we have been referred to two papers from the Equal Opportunities Commission - which suggest that the law as stated by Perera, might need reform. But that is not a matter for this court to speculate upon; it may be for Parliament.

    In the circumstances I have not thought it necessary to deal with the many other points that were argued before us and other authorities that were cited. That would burden an already long judgment. I would therefore dismiss this appeal.

    LORD JUSTICE STAUGHTON: I agree that this appeal must be dismissed because we ought to follow the decision of this court in Perera v. Civil Service Commission [1983] I.C.R. 428. If I had not held that we ought to follow that decision, I am by no means sure that I would have reached a different conclusion from that established by Perera. That is because section 1(1) (b) of the Race Relations Act 1976 would have such an extraordinarily wide and capricious effect if the appellant's submissions were correct. Once an employer takes into account any factor whatsoever, which is not justifiable in terms of section l(l)(b)(ii), he may be exposed to a charge of racial discrimination. That is so whether or not he had the slightest intention to discriminate on racial grounds and whether or not racial grounds had any effect whatever on his decision. I say that, because it must almost always be possible to find a racial group with a smaller proportion of persons able to pray in aid that factor than the proportion of persons not in that group who can pray it in aid, and there will be a risk that someone in that racial group may have applied for a job and not been awarded it.

    To illustrate the point I take an extreme example. Suppose an employer takes into account, amongst other things, whether an applicant's surname begins with the letter "A". If it does, that is a factor to be taken into account in his favour. Suppose also, and this is not difficult, that the letter "A" has no relevance to the job on offer and the requirement or factor is not justified - it is just adopted at the whim of the employer. I do not doubt that a racial group could be found somewhere in which the proportion of persons whose surname begins with a letter "A" is considerably smaller than the proportion of persons not in that group whose surnames begin with the letter "A". There will be a risk that a person from that racial group whose surname does not begin with a letter "A" will have applied for the job and not been awarded it. The employer would be guilty of racial discrimination. The applicant will be able to say that he suffered a detriment in the shape of inability to take advantage of a factor which would have told in his favour. That is an extreme example in order to make the point clear.

    As the law stands at present, if it were a mandatory requirement that a surname should begin with the letter "A", that would he racial discrimination. If the law is to be changed so that a factor merely taken into account and not mandatory can amount to indirect discrimination on such slender grounds, I would expect detailed consideration and enquiry as to whether the change is justified by the extent of racial discrimination presently taking place and not caught by the Act.

    LORD JUSTICE DILLON: I agree that this appeal must be dismissed. The case of Perera decided that there can only be a requirement or condition within section 1(1)(b) of the Race Relations Act 1976 if the requirement or condition, or whatever other word may be used to describe it, is mandatory and an absolute bar to selection. That appears from the passages which my Lord has cited from the judgment at first instance in Perera of Browne-Wilkinson J., which was specifically approved in this court and from the judgment of Stephenson L.J. with which both other members of this court agreed. It cannot be said that the inclusion of Tower Hamlets' experience as a factor for consideration, which was only satisfied by four out of the 23 applicants, four out of the 11 on the long list and two out of the five on the short list, was a mandatory requirement and its absence an absolute bar to selection ; therefore this appeal must fail.

    I do not find it necessary to express any view one way or the other on what conclusion I might have reached had we not been bound by Perera. It may well be that if Perera reflects the true state of the law there are reasons for altering the law, but that is not a matter for this court; still less is it for this court to draft an appropriate amendment.

    There is, however, another aspect of the case to which I must refer. In his original application to the industrial tribunal the appellant specified as the relief that he sought, "compensation". As my Lord has mentioned, he now has a good job with another London Borough and he has accepted that if there was discrimination, as he claims, under section 1(1) (b) of the Act, it was unintentional on the part of the London Borough. Therefore it follows that he can have no claim to compensation or damages. His only claim is to a declaration to establish his position and set out, as he would submit correctly, what the law is on an important point. But under section 1(1)(b) one of the important considerations is that the alleged discriminator, the potential employer in the present case, has power to show that the requirement or condition is justifiable irrespective of the colour, race, nationality or ethic or national origins of the person to whom it is applied. In the present case no attempt was made before the Industrial Tribunal to make out that the requirement or condition, if it was one, was thus justifiable. The case took a somewhat unusual course in that counsel for the respondent employers, the London Borough, accepted that the onus was on him to open the case because his side had the information of what had happened in relation to the selection of a council solicitor and he opened the case on the footing that there was only one issue in the case, namely positive discrimination under section 1(1) (a) of the Act. When counsel for the present appellant addressed the court, he made the point under section 1(1) (b) with which we have been concerned and relied on the criterion of Tower Hamlets' experience. In his reply counsel for the respondents referred to it as a new point and proceeded successfully to argue cm the law that in view of Perera it was a bad point. He did not seek an adjournment to call evidence to justify the criterion, if it was indeed a requirement or condition within section 1(1)(b).

    In this court Mr. Beloff has asked that if we hold that it was indeed a requirement or condition, notwithstanding the decision of this court in Perera, the case should be remitted to an industrial tribunal for that tribunal to determine whether or not the respondents can show the requirement or condition to be justifiable in accordance with section l(l)(b)(ii). Mr. Beloff accordingly applied today for leave to serve a respondents' notice out of time, asking for such remission. Mr. Sedley pointed out that the application to serve a respondents' notice came very late and queried whether, in a case in which only a declaration is sought, the appellant would have brought the case to this court if he had appreciated or been warned that there was a possibility that if he succeeded the matter would be remitted to an industrial tribunal for a further round. In those circumstances, arid as we take the view that we are bound by the decision in Perera, it is not necessary that we should rule on Mr. Beloff's application for leave to serve a respondents' notice out of time and we therefore did not do so.

    Appeal dismissed with costs. Application for leave to appeal to the House of Lords refused.

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