Appeal No.	EAT/1349/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 March 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MR P R A JACQUES CBE
MRS J M MATTHIAS

LANCASHIRE COUNTY COUNCIL	APPELLANTS

MRS K MASON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R SINGH
(of Counsel)
The Chief Executive
Lancashire County Council
PO Box 78
County Hall
Preston
PR1 8XJ	
For the Respondent	MR A BURNS
(of Counsel)
Association of Teachers & Lecturers
7 Northumberland Street
London
WC2N 5DA	

	JUDGE BYRT QC:	This is an appeal from a decision on a preliminary point of an Industrial Tribunal Chairman, sitting alone in Manchester. His decision was promulgated on 23rd October 1997 and, by that decision, he held that the respondents, the appellants before us, are the proper party to the proceedings brought by Mrs Mason under s.4 of the Disability Discrimination Act 1995.

	The facts, which are the background to the point of law arising, but which are in no way admitted or accepted by the appellants, are as follows: Mrs Mason, a teacher, had applied for a teaching post at a school known as Hodgson High School. She sent in an application to the Head Teacher. Three weeks later she was notified that her application had been unsuccessful. When she made further enquiries why she had not been selected for interview, she was informed that, by reason of certain disabilities she had, she did not meet the criteria set for the job by the Governors.

	Mrs Mason thereafter claimed that the failure to select her for interview amounted to a discriminatory act of the Local Education Authority contrary to the Disability Discrimination Act 1995. Alternatively, she said, it was an act for which the Local Education Authority must accept responsibility.

	The Industrial Tribunal Chairman in giving his reasons for upholding that submission said as follows:

“9. ... the Council as the employer must be deemed to have ultimate responsibility for the arrangements that are made for the purposes of determining to whom it should offer employment. ...”

In the alternative he said that the Governors, at all times, were acting as agents for the Local Authority, and therefore by reason of s.58(2) of the Act were liable for the Governors’ discrimination. 

	A pure point of law arises here out of the statutory position of the Governors as opposed to that of the Local Education Authority. Accordingly, it is necessary that we should look at the statutory provisions with some care. 

	Mr Singh, who has appeared on behalf of the appellants, took us carefully through that legislation. Ordinarily the Local Education Authority would have detailed responsibility for the control at all stages of the appointment and dismissal of staff of state maintained schools in their sector. This is made plain s.133 of the Education Act 1996, Schedule 13. But Hodgson High School is a County School with a delegated budget and s.136(2) of the Act expressly states that s.133, Schedule 13 is disapplied and that Schedule 14 shall apply instead. Schedule 14 divides the responsibility for the filling of a vacancy between the Governors of the School and the Local Education Authority. Paragraph 12 of Schedule 14 makes provision for the Board of Governors to advertise the vacancy and thereafter paragraph 13 goes on to set out their responsibility for interviewing the applicants for the post. It requires that they should interview such applicants for the post as they think fit and, thereafter, where they consider it appropriate to do so, recommend for the appointment one of the applicants interviewed by them. That is their function and their responsibility under that Schedule. The Local Education Authority’s responsibilities are set out under paragraph 14 of the same Schedule. That states that the Local Education Authority shall appoint the person recommended or accepted for appointment by the Governing Body unless he/she does not meet any staff qualification requirements which are applicable in relation to his/her appointment. So there is a distinction, Mr Singh says, between the respective roles of the Board of Governors and the Local Education Authority. He submits that in the statutory scheme of things the Governors have a responsibility which is mutually exclusive from that of the Local Education Authority. He highlights this by stressing on the one hand that notwithstanding the fact that the Board of Governors have the responsibility for selecting candidates for interviewing and the interviewing process, they have no power to make a contract of employment. That is made plain by the seventh Schedule, paragraph 2 of the same Act. On the other hand, the Local Education Authority has sole power to appoint, that is to enter into contracts of employment, but no power over the selection for the interview or recommendation. The Authority has no discretion as to whom it shall appoint once the Governing Body has put forward a recommended candidate. Mr Singh says that the discriminatory act about which Mrs Mason complains occurs when she was selected for the interview process. That was a failure occurring at the stage in the process for which the Governors were entirely responsible. He rhetorically asked the question, how in those circumstances can it be said that the Local Education Authority are responsible.

	A question arises as to whether the Board of Governors have committed an offence under s.4 of the Disability Discrimination Act 1995. That says this:

“It is unlawful for an employer to discriminate against a disabled person-
(a)	in the arrangements which he makes for the purpose of determining to whom he should offer employment;”

Mr Singh says that is the appropriate part of s.4 which applied in this case.  No problem arises as to whether the Board of Governors is a properly constituted legal body; that is provided for by s.88 of the Act. But the question then is, are the Governors in any sense “an employer”. Mr Singh submits that the answer to that must be ‘no’. They have no powers to make contracts of employment. But he says that that position has now changed by the Education (Modification of Enactments Relating to Employment) Order 1998 which makes the Board of Governors deemed employers for the purposes of certain Acts relating to discrimination in employment. Those Acts are set out in the Schedule. Until this year, until last week, the only Acts of a discriminatory nature set out in that Schedule were the Sex Discrimination Act 1975 and the Race Discrimination Act 1976. There was no reference to the Disability Discrimination Act 1995. The Order which became effective on 2nd March 1998 has now, in its Schedule, added the Disability Discrimination Act 1995. A point to be noticed, however, in that Order, is that that provision is not retrospective. Accordingly, Mr Singh submits, having regard to that chain of statutory provisions, it is plain that the Board of Governors, not being employers, have not committed any offence under s.4. A fortiori, therefore, the Local Education Authority can have no liability, vicariously or otherwise, for any breach of the Governors under that statute.

	Is there another basis upon which the Local Education Authority, might be liable for the Governors’ apparent discrimination. The Industrial Tribunal Chairman said yes. He relied on two grounds I earlier mentioned. I shall repeat them again. First, he says:

“9 ... I find the Council as the employer must be deemed to have ultimate responsibility for the arrangements that are made for the purposes of determining to whom it should offer employment.”

There is no mention at that particular stage of the Chairman’s extended reasons as to how or why he finds this situation to be “deemed” as he claims. He then goes on to say in the same passage:

“Although I recognise that the hands of the Council are somewhat tied by reason of the statutory framework incorporated in the 1996 Education Act this does not absolve it from the responsibility imposed upon employers by reason of Section 4 of the Disability Discrimination Act 1995.”

Mr Singh in his submissions says that indeed the Council’s hands are tied by the statute. Mr Burns who has appeared on behalf of Mrs Mason in this case, supports the proposition there set out by the Industrial Tribunal Chairman, and I refer to his point in a minute.

	Second, the Industrial Tribunal Chairman found that the Local Education Authority indeed did have responsibility because of s.58(2) of the Act. S.58(2) says this:

“(2)	Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Act as also done by that other person.”

The Industrial Tribunal Chairman added that in his view both the interviewing process and the recommendation of the Board of Governors were functions which they fulfilled as agents of the Local Education Authority.

	Mr Singh says, with respect, that the Chairman was wrong there too. He said the basic principle of agency is set out at Halsbury’s Laws Vol.1 (Revised Edition), page 6, paragraph 3:

“It may be stated as a general proposition that whatever a person has power to do himself he may do by means of an agent. The converse proposition also holds good that what a person cannot do himself he cannot do by means of an agent.”

Mr Singh says that the Governing Body were in no sense agents of the Local Education Authority because the Local Education Authority had no statutory power to fulfil any part of the Governing Body’s functions. Therefore, the Governing Body could not be fulfilling their functions as agents for the Local Education Authority. In all, Mr Singh says, the decision of the Industrial Tribunal Chairman upholding the position of the appellants as respondents was clearly wrong.

	Mr Burns, in turn, bases his submissions in the first place on the fact that he claims the Local Education Authority are the employers in this instance, and therefore, prima facie, are the correct people to have as respondents in this claim. He says that all the relevant questions in this instance arise under s.4(1)(c) of the Disability Discrimination Act 1995 and not under s.4(1)(a). S.4((1)(c) says:

“(1)	It is unlawful for an employer to discrimination against a disabled person-
...
	(c)	by refusing to offer, or deliberately not offering, him employment.”

In that way, he side-steps or seeks to side-step the arguments advanced by Mr Singh based on s.4(1)(a). Mr Burns says that s.4(1)(c) being the correct section to consider, there are four questions that need to be asked:

“a)	did the Respondent apply for employment with the Appellant? - yes
b)	was the Respondent offered employment? - no
c)	was this accidental or deliberate? - deliberate
d)	was the reason for not offering her employment discriminatory or not?”

He says that the answer to those questions puts the ball well and truly into the court of the Local Education Authority, and for that reason, they are appropriate respondents to the claim.

	He then goes on to say that Schedule 14 of the Education Act 1996 does not absolve the Local Education Authority of responsibility. They had an implicit power to refuse a recommendation where part of its formulation was an offence under the statute. He says that where they have such a power, it automatically implicates them in any offence under that Act committed by the Board of Governors if in those circumstances, they proceed to an appointment.

	Mr Singh had referred to the fact that there was a lacuna in the legislation, whereby, if the Board of Governors was not liable to the claimant in a case of this sort, nor was the Local Education Authority. That was a lacuna that existed up until the Modification Order which came into existence and became effective on 2nd March 1998. Mr Burns addressed that issue by exhorting us to construe the legislation that existed up and until that time, purposefully and constructively. If there was in fact a lacuna in the legislation, the tribunal should interpret the Disability Discrimination Act in such a way as to fulfil Parliament’s obvious intention.

	Lastly Mr Burns argued the point advanced before the Industrial Tribunal Chairman to the effect that the Board of Governors was but agents for the Local Education Authority in setting up the arrangements for interview and making recommendations. He said that the Board of Governors had no powers to make appointments or to refuse employment; those prerogatives belong to the Local Education Authority. He said that if the Board of Governors write to Mrs Mason declining to offer her an interview, they can only be doing so as the Local Education Authority’s agent.

	Despite the attractive argument which has been advanced today by Mr Burns, we accept Mr Singh’s submissions based upon his analysis of the relevant statutory provisions. We see that Schedule 14 of the 1996 Act as crucial in this case, in that it separates the functions where the state maintained school has a delegated budget. We accept that the responsibilities of the Board of Governors in relation to such a school and those of the Local Education Authority’s are mutually exclusive. It may well be that the reasons that that is the scheme of the legislation is something to do with the fact that the school has the delegated budget and therefore has corresponding responsibilities. But it is not for us to consider the why and wherefore of that provision.

	In our view, it is plain that the act of discrimination Mrs Mason complains about was part of the process for which the Board of Governors were solely responsible. Another difficulty arises, however, by reason of the fact that they cannot by any stretch of the imagination be deemed employers for the purposes of s.4. That being the case, whilst Mrs Mason for one, might thoroughly disapprove of the basis upon which she excluded from the selection process for interviewing, the Board cannot be held to be guilty of any offence under that s.4. Equally, it is our view, that the act complained of is no part or forms no part of the Local Education Authority’s responsibilities in this matter. 

	We are satisfied that we are considering a case to which s.4(1)(a) applies and not s.4(1)(c). Equally, we are satisfied that s.58(2) of the Act does not apply for the reasons submitted to us by Mr Singh. We find the quotation from Halsbury’s Laws entirely apposite, encapsulating a fundamental basic principle of agency, which, in our view, determines the agency issue in this case. Up until 2nd March 1998 we recognise that there has been a lacuna in the legislation, but that this has now been closed off by the Modification Order 1998. Unhappily that Order makes plain that its new provisions are not to have retrospective effect. If that is to be the case, we can see that Mrs Mason in this instance is arguably the subject of an injustice arising from the delay which has taken place in the advancement of the Modification Order which came into effect on 2nd March 1998. However that may be the case, once more it is not a matter which can concern us in making our decision in this matter. 

	Accordingly, we accept the argument advanced here by the appellants, that it is not appropriate that they should be named as respondents to this claim, and accordingly, we allow this appeal.