Appeal No. UKEATS/0031/07/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 30 April 2008

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

RENFREWSHIRE COUNCIL	APPELLANT

MR B MARTIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A MACRAE
(Solicitor)
Renfrewshire Council Legal Services
3rd Floor North Buildings
Cotton Street
Paisley  PA1 1TT	
For the Respondent	MR B MARTIN
(The Respondent in Person)	

SUMMARY

AGE DISCRIMINATION
Age Discrimination.  Local Authority employer who rejected the job application of a 63 year old but they could not have employed him.  He was a councillor.  Appeal upheld and claim struck out as having no reasonable prospects of success.
 
THE HONOURABLE LADY SMITH

1.	Renfrewshire Council were the Respondents and Mr Martin was the Claimant in this claim.  I will continue to refer to parties as Claimant and Respondent for the sake of clarity.  

Introduction
2.	This case concerns a claim of age discrimination.  It is an appeal from a judgment of an Employment Tribunal sitting at Glasgow registered on 14 May 2007, Chairman, Mr RM Williamson, sitting alone.  The respondents’ submission that the claim should be struck out under Rule 18(7)(b) of the Employment Tribunal Rules of Procedure 2004 was rejected.  

The Background
3.	The Claimant had applied to the Respondents for the post of  pupil support worker.  He was an elected councillor of the Respondents at the time he made that application.  He was also aged 63 years.  It is the Claimant’s case that his job application was rejected on account of his age.  

The Relevant Law
4.	Section 76 of the Local Government Scotland Act 1973, provides:
“A person shall, so long as he is, and for 12 months after he ceases to be, a member of the local authority, be disqualified for being appointed by that authority to any paid office, other than to the office of Convenor or Depute Convenor.”
It would accordingly have been ultra vires of the Respondents to employ the Claimant.  

5.	The Employment Equality (Age) Regulations 2006, (‘the Age Discrimination Regulations’) , provide, in  Regulation 3(1):
“For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if 
(a) on grounds of B’s age, A treats B less favourably than he treats or would treat other persons …”

6.	Less favourable treatment is essential. To treat a person in a particular way on grounds of age is not unlawful if it is not treatment that is less favourable than others receive or would have received.  To succeed in an age discrimination claim against potential employers, a Claimant must accordingly show that he has been treated less favourably than those employers treat or would treat other persons and that that treatment was on grounds of age.  Further, Regulation 27 of the Age Discrimination Regulations provides:
“Nothing in Part 2 or 3 shall render unlawful any act done in order to comply with a requirement of any statutory provision.”

The Issue
7.	The issue for the Tribunal was that of whether or not the claim had any reasonable prospects of success and, if not, whether or not it ought to be struck out.

The Judgment
8.	The Tribunal’s reasoning is contained in paragraphs 9 to 11 of its judgment which include the following:
9.	“I accepted that as a matter of law the respondents are prevented from employing the claimant until after May 2008 by virtue of the provisions of Section 67 of the Local Government (Scotland) Act 1973.  I accepted that if that had been the reason for the rejection of the claimant’s job application the respondents would have had an absolute defence to the claim in terms of Regulation 27 of the Age Regulations.
10.	However, that is not the position in this case.  The potentially discriminatory act is the rejection of the claimant’s job application.  That act was done by person(s) who were unaware that the claimant was a Councillor.  The act was accordingly not done ‘in order to comply’ with the statutory prohibition.  I treated the words of Regulation 27 of the Age Regulations as meaning that in order to get the benefit of that provision the mental motivation of those responsible for the act had to be the need to comply with the statutory provision which would prevent them from acting other than in the way they did.  Since the person(s) responsible for the decision to reject the claimant’s job application did not know the claimant was a Councillor, the need to comply with the statutory prohibition preventing the employment of the claimant cannot be the mental motivation.
11.	Accordingly if as a matter of fact the respondents’ decision makers did reject the claimant because of his age (which of course may not be the case) I take the view that the claimant would have a valid claim under the Age Regulations albeit that its value would be modest ...”

The Appeal
9.	The Respondents submitted that the Tribunal had misdirected itself in respect that it failed to recognise that the relevant question was whether or not the act complained of was intra vires or ultra vires.  The decision not to progress the Claimant’s claim was intra vires the Respondents and to have proceeded to consider him for appointment to the post would have been ultra vires.  The Respondents could not have acted other than they did.  To do so, would have been to exceed their statutory powers.  Reference was made in support of that submission to the case of Greater London Council v Farrar [1980] 1 WLR 608.  That case was also put before the Tribunal.  The chairman refers to it at paragraph 7 of the judgment but makes no comment on it or on the discussion contained in Farrar.  The submission put before me today by Mr Macrae was to the effect that the Tribunal had wholly failed to appreciate that Farrar was an authority from the Employment Appeal Tribunal for the proposition that if a local authority acts intra vires, then it cannot be held to have acted in a discriminatory fashion.

10.	Reference was further made to the case of General Medical Council v Goba [1988] IRLR 425 and to the case of Hampson v Department of Education and Science [1990] IRLR 302.  In the course of discussions, Mr Macrae recognised that these authorities do perhaps make inroads on the principle that was articulated in the case of Greater London Council v Farrar but it remained his submission that, on the facts of this case, this council, the Respondents, were in a stronger position than either the General Medical Council or Department of Education and Science since it was not a matter of them simply arguing that they were acting within their powers.  They were able to go further and argue that they could not have acted any differently.
11.	Separately, the Respondents submitted that the Tribunal erred in its interpretation and application of Regulation 27.  The regulation was silent on the matter of motive.  It did not, for instance, require that the actor, in the case of the discriminatory act, act deliberately.  Parliament could have used a term such as “deliberate” if that was what it had meant.  Nor was it possible to require a local authority to have a motive since a local authority is a creature of statute that could not have a mens let alone a mens rea.  

12.	Overall, Mr Macrae submitted that the decision of the Tribunal was perverse.  It would have been unlawful for the Respondents to employ the Claimant.  Any reasonable Tribunal would have struck out this claim in which it was being suggested that a discrimination claim can arise from refusing to consider a person for a post in circumstances where the Respondents were prohibited from employing that Claimant.  Reference was made to a well known passage in the judgment of Mummery LJ in the case of Stewart v Cleveland Guest Engineering (LTD) [1994] IRLR 440 at page 535.

13.	In response, the Claimant submitted that when he lodged his job application, he was discriminated against when the short list was drawn up.  He was discriminated against, he said, on grounds of his age.  He was not rejected because he was a councillor.  If he had been told that he was being rejected because he was a councillor, he would have accepted that but that was not what he was told.

14.	Mr Martin did not suggest that he had been told specifically that he was being rejected on grounds of age.  He was told that he was being rejected on grounds of competence and since he was competent to carry out the post which he was applying for, he inferred from that that the rejection was, in fact, because of his age.  
15.	He also submitted that the local authority were not obeying the statute when they refused to give him an interview and he suggested that they should have gone at least as far as giving him an interview, although he accepted, as plainly he had to do in his position of having been a councillor at one point, that he could not have been successful in obtaining the job for which he applied.  He said that he felt insulted by the letters which intimated that he was not suitable for the post because nothing could be further from the truth.

16.	In a short response, Mr Macrae submitted that it was not a question of looking at the comparative merits of the application and it was not a question today of whether or not there had been age discrimination.  The point was that the selection of the Claimant for interview would have been ultra vires the Respondents and that really was an end of the matter.

Discussion and Conclusions
17.	The Claimant’s case here is that it should be inferred from the circumstances surrounding the Respondents’ rejection of his job application that the reason for it was his age.  He was 63 years old when he applied for the job.  His complaint was resisted and the Respondents raised, as a preliminary point, that they could not have employed the Claimant in any circumstances given the prohibition contained in Section 67 of the Local Government Scotland Act 1973.

18.	It is important to note that the Respondents are a local authority.  That being so, they are a statutory body and that means they have power to do only that which is authorised by statute and they have no power to do that which is prohibited by statute.  Any purported exercise of a prohibited act is ultra vires.  Further, a local authority is not capable of forming intention.  It has, as a matter of law, no mens. 

19.	That prohibition in the statute to which I have referred means that the Respondents were required, as a matter of law, to reject the application of any applicant whose characteristics, apart from age, were the same as the Claimant’s.  If, for instance, a 35‑year‑old councillor had applied for the job, the law would have required the Respondents to reject his application.  It must be assumed that the Respondents would have complied with the law in respect of any such comparator.  It would be quite wrong to follow through the comparator hypothesis on the assumption that the Respondents could have acted ultra vires.  Accordingly, even if the Claimant could show that the person or persons responsible for rejection of his application did so on the grounds of his age, and even if he could show, as he would have to do, that they were doing so on behalf of a council which knew that was happening, that would not help.  He cannot show he received less favourable treatment as is required by Section 31 of the Age Discrimination Regulations before treatment on grounds of age can be shown to have been unlawful.

20.	Further, I am persuaded that the Respondents’ argument, advanced under reference to the fact that it would have been ultra vires for them to employ the Claimant, is well founded.  It follows that since they have no power to enter into a contract of employment with the Claimant, they have no power to progress his application for employment.  They could not lawfully have acted otherwise.  It is no part of the Age Discrimination Regulations that an employer, or prospective employer, is required to act unlawfully, hence the provisions of, in the case of the Age Discrimination Regulations, Regulation 27.  

21.	I agree with Mr Macrae that the Tribunal judge fell into error when he construed it as requiring, as he put it, the “mental motivation of the person responsible to be that they were acting in order to comply with the statutory requirements”.  What is alleged in this case is that a local authority carried out a discriminatory act, thus the act referred to in Regulation 27 is the act of a local authority.  As I have already mentioned, a local authority has no mind, no mens, being an non natural person.  It cannot form or hold an intention.  That means that in the case of a local authority Respondent, it is not relevant for the purposes of Regulation 27 to ask what was in the mind of the local authority employee involved.  What is relevant is to look at the question of vires.  Would the local authority have been acting within or out with its powers, assuming that it did carry out the act complained of.  

22.	I fully accept that as discussed in the cases of Goba and Hampson that to qualify for the statutory protection, a person in the position of the Respondents must have been acting in a way which was reasonably necessary, not simply in a way that it was empowered to act if it was to comply with the requirements of the relevant statute, in this case, Section 67(1) of the Local Government Scotland Act and that notwithstanding the indications to the contrary in the case of Farrar, namely that it is enough if they were acting within their powers that that is so.  However, that is a test that the Respondents plainly meet.  It was plainly not only reasonably necessary but necessary for them to reject the application that was put before them by Mr Martin.  I repeat, they could not lawfully have acted otherwise.

23.	In these circumstances, I am readily satisfied that this appeal should be upheld and I will pronounce an order quashing the judgment of the Employment Tribunal and substituting an order striking out the Claimant’s claim under Rule 18(7)(b) of the rules of the Employment Tribunal on the grounds that it has no reasonable prospects of success.