Appeal No. EAT/0516/03 RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 October 2003
Judgment delivered on 25 November 2003

Before
HIS HONOUR JUDGE PROPHET
MR B V FITZGERALD MBE
MISS G MILLS MBE

MR R SPICER	APPELLANT

GOVERNMENT OF SPAIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR JASON COPPEL
(of Counsel)
Instructed by:
Messrs Graham Clayton Solicitors
Ravenscourt House
322a King Street
London W6 0RR	
For the Respondent	MISS HEATHER WILLIAMS
(of Counsel)
Instructed by:
Messrs Black Graf Solicitors
14/15 College Crescent
London NW3 5LL	

HIS HONOUR JUDGE PROPHET

1	Mr Spicer was employed as a teacher from February 1989 at a Spanish State School in London.  His employer was the Government of Spain.  It may be mentioned here that the employer has waived any matter of State Immunity.  The primary function of the School is the education of children of Spanish nationals living in the United Kingdom.

2	Most of the teachers at the School were Spanish civil servants on overseas postings from Spain.  A smaller number were British nationals recruited in Britain.  There were also a few Spanish nationals recruited in Britain, and who were not Spanish civil servants.
3	Mr Spicer’s employment at the School ended at the end of August 2001.  On 20 October 2001, he submitted a complaint of race discrimination against his former employers, the nature of the ‘race’ discrimination being nationality.  Subsequently a claim of unfair dismissal was added.

4	An important matter occurred prior to the full hearing before the Employment Tribunal in that the Respondent was debarred from asserting objective justification in any indirect discrimination matter, and that was not appealed.

5	An Employment Tribunal at London (Central), under the chairmanship of Ms Lewzy, sitting with Mrs Hunter and Mrs Wingrove as the two lay members, held a full hearing on 5 to 7 March 2003.  Mr Coppel of Counsel represented Mr Spicer, and Mr Curtis of Counsel represented the Respondent.

6	A reserved decision with Extended Reasons was promulgated on 7 May 2003 (which, incidentally, incorrectly stated that the hearing was on 7 March 2003 only).  Mr Spicer was unsuccessful with all his complaints of race discrimination, both on the basis of direct and indirect discrimination.  He succeeded in respect of unfair dismissal, but that was subject to a proviso since at the time his employment ended, Mr Spicer was over 65.  Matters in that respect have moved on in the Rutherford case, but are not relevant for the purposes of this appeal.

7	We are constituted today for the full hearing of this appeal, with Mr Coppel again representing Mr Spicer.  Ms Williams of Counsel represents the Respondent.  The Employment Appeal Tribunal is indebted to both for the quality of their submissions.

8	At this stage, some of the matters which the Employment Tribunal was called upon to determine have, in effect, fallen away because Mr Coppel now concedes that in the three areas which we have been asked to scrutinise at this appeal hearing, i.e. promotion, pay, and pension, it is now accepted that there was no direct discrimination in the first two.

9	Under challenge, however, in those two areas are the Employment Tribunal’s findings that the claims of indirect discrimination failed.  So far as the claim relating to pension is concerned, the challenge takes a rather different form, in that there is a straight appeal against the finding of no direct discrimination in that area, but so far as indirect discrimination is concerned, the appeal is that the Employment Tribunal simply overlooked the requirement to make a finding at all.  We shall take the three matters in turn.

Promotion

10	The essential fact in this respect, as we are satisfied was found by the Employment Tribunal, was that Mr Spicer was not eligible to take a more senior post at the School, e.g. Head of Department, unless he was a Spanish civil servant.  For the purposes of indirect discrimination that was a condition which, as one of the British teachers group, Mr Spicer could not meet.  (The theoretical possibility of his becoming a Spanish civil servant was clearly unrealistic).  Now, there might, of course, have been arguments advanced under ‘objective justification’ on this matter, but this Employment Tribunal could not entertain those.  Thus they were left with a final matter, i.e. was Mr Spicer subjected to a detriment as a result?

11	It is the challenge to the Employment Tribunal’s finding that he did not, which constitutes the thrust of Mr Coppel’s submission in this area.  The Employment Tribunal noted the fact that Mr Spicer never applied for a more senior post such as Head of Department and that he never complained to ‘the authorities’.  Ms Williams suggests that the authorities did not include those senior to him at the School to whom Mr Spicer undoubtedly indicated his concern at this barrier.  Mr Coppel says that obviously Mr Spicer never applied when he knew there was a rule (whatever its basis) that he would not be considered.  There was evidence of his interest, and that it cannot be correct, as Ms Williams suggests, that Mr Spicer was not bothered by this barrier.  Ms Williams emphasises that whether Mr Spicer sustained a detriment was part of the Employment Tribunal’s fact finding role and we should not therefore interfere, but Mr Coppel says that the barrier plus Mr Spicer’s interest, and concern expressed at the School makes the Employment Tribunal’s findings of no detriment wrong, either by misdirection or perversity.

12	Our view on this matter is that the finding by the Employment Tribunal is unsafe.  It is difficult to see how, if Mr Spicer was genuinely interested in promotion, and was precluded from pursuing it by the condition, that he could not have been subjected to a detriment.  The meaning of ‘detriment’ in discrimination law has exercised judicial minds for some time, but the ruling of the House of Lords in Shamoon v Chief Constable of the RUC [2003] IRLR 285 is now understood to be the final word.  We appreciate that the Tribunal did not have the advantage of that case.  In particular Lord Scott at page 301, paragraph 105 made observations which the Employment Tribunal may find helpful.  However essentially, there is a need for the relevant findings of fact to be set out clearly by the Employment Tribunal and then, with the guidance indicated in Shamoon, a decision reached as to whether Mr Spicer was subjected to a detriment.  Consequently this part of the appeal is upheld, and this matter remitted to the Employment Tribunal for reconsideration.

Pay

13	We turn now to the second area, i.e. the pay difference.  The relevant facts as found by the Employment Tribunal were that the British nationals received a higher basic pay than Spanish civil servants posted from Spain, but as the latter received an allowance for working overseas, the total remuneration package for Spanish civil servants was higher than that received by the British nationals.  Mr Spicer was able to get off the blocks under indirect discrimination by indicating that the condition for him to get the higher remuneration package was that he needed to be a Spanish civil servant.  On the basis that the pool was the teachers at the School, there was disparate impact on Mr Spicer as a British national.  Since an objective justification submission from the Respondent was debarred, then, says Mr Coppel, it was perverse of the Employment Tribunal to find no detriment, and to have refused to accept Mr Spicer’s case for indirect discrimination on the matter of pay.
14	Ms Williams, denied any opportunity of following what on the face of it might seem a more promising defence of justification, has submitted an argument based on section 3 (4) of the Race Relations Act 1976 which says:

3	(4)	“A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1 (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

15	Mr Coppel submits that that is an attempt to introduce a line of argument not advanced before the Employment Tribunal, but that in any event section 3 (4) has no application to indirect discrimination other than ascertaining the correct pool: see Hanly v Norinchukin International Plc (EAT 13 May 2003, unreported).  However we agree with Ms Williams that, although perhaps not expressed as clearly as it might have been, the Employment Tribunal found as a fact that there was no like for like comparison in the pay situation.  Furthermore, we are not able to accept the restricted view of section 3 (4) advanced by Mr Coppel.  It covers section 1 (1) generally and the weight of authority is against him.  Indeed, it may well be a safeguard against fitting into the wording of the legislation what in common sense terms are really non-comparative situations.

16	That, we feel, is the situation here and one recognised by the Employment Tribunal.  There was no suggestion that the overseas allowance, albeit perhaps a generous one, was a sham to provide the Spanish nationals with a higher level of pay than that afforded to their British counterparts.  It was paid to them as a consequence of their being posted overseas, a situation for which there was no proper comparison with the British teachers who were not required to relocate and consequently suffered no detriment.  It was quite different to the promotion situation.  Consequently we dismiss this part of the appeal.

Pension

17	We can deal with this final area shortly.  Here we can simply uphold the appeal and remit both the issues of direct and indirect discrimination to the Employment Tribunal for full reconsideration.  We do that because, so far as direct discrimination is concerned, there is an unresolved confusion as to the comparison situation.  It appears that the Spanish teachers who are not civil servants (see paragraph 2 above) may also qualify for the same or similar pension rights as the Spanish civil servants on overseas postings.  On indirect discrimination, unfortunately the Employment Tribunal overlooked altogether the need to make appropriate findings and conclusions on this matter, and thus their judgment was incomplete.  That needs to be addressed.

18	Although Mr Coppel has strongly urged us to remit the matters which require remission to a differently-constituted Employment Tribunal, we have decided that the correct course in the particular circumstances is to remit to the same Employment Tribunal and this we do.  No doubt if there is any difficulty in reconstituting the Employment Tribunal with the same three members, that can be resolved by the Regional Chairman at London (Central) with the co-operation of the respective parties.