Ojutiku v Manpower Services Commission

Indirect discrimination is not justified only by proving that a requirement is strictly necessary. Under section 1(1)(b)(ii) of the Race Relations Act 1976, justifiable retains its ordinary meaning and requires adequate grounds: reasons which right-thinking people would regard as sound and tolerable. The standard is lower than necessity.

A tribunal may accept informed evidence from the decision-maker; independent evidence is not an absolute requirement. A statutory training body may select candidates by reference to actual employment prospects and general labour-market conditions, even where the relevant qualification has been made harder to obtain by discrimination of others. It must justify its own requirement, not remedy every wrong in the employment market.

Two applicants sought financial sponsorship from the Manpower Services Commission for a diploma in management studies. Their applications were rejected because they lacked previous managerial experience. They complained that this denied access to vocational training contrary to the Race Relations Act 1976.

The Industrial Tribunal accepted that the experience requirement caused indirect racial discrimination but found it justifiable under section 1(1)(b)(ii). The Employment Appeal Tribunal upheld that decision. The Court of Appeal considered whether independent evidence was required, and whether the Commission could rely on actual employment conditions and employer practices, including practices allegedly affected by earlier direct discrimination.

The appeals were dismissed unanimously, with costs. Leave to appeal to the House of Lords was refused.

1. Justification. The word justifiable in section 1(1)(b)(ii) of the Race Relations Act 1976 should be given its ordinary meaning. It requires adequate grounds, assessed in all the circumstances, and imposes a lower standard than strict necessity. The relevant question was whether the Commission had sound and tolerable reasons for requiring previous managerial experience.
2. Evidence. There was no rule of law requiring independent or external evidence. The Industrial Tribunal was entitled to rely on Mr Carradine’s evidence, which was based on his experience, enquiries and investigations, and to treat it as sufficient evidence of justification.
3. Commission’s statutory function. Under section 2(1) of the Employment and Training Act 1973, the Commission could select candidates so that its limited funds were likely to improve actual employment prospects and preserve the standards and reputation of its scheme. It was entitled to take the employment market as it existed, rather than a hypothetical or ideal market.
4. Third-party discrimination. The requirement did not cease to be justifiable merely because the necessary experience might have been denied by direct discrimination of other employers. The Commission had to justify its own conduct and was not responsible for correcting the wrongs of others. The power under section 2(2)(c) to arrange training connected with employment abroad did not impose a duty to assess foreign employment prospects.
5. Authorities. The stricter necessity gloss associated with Steel v Union of Post Office Workers (1978) Industrial Cases Reports 181 was not followed. The approach in Singh v Rowntree MacKintosh Ltd (1979) Industrial Cases Reports 554 was treated as consistent with the lower standard. Rowe v General Motors Corporation 457 Federal Reporter, Second Series 348 was not generally applicable because the statutory context and facts differed.

1. Court of Appeal (Civil Division) — Appeals dismissed with costs; leave to appeal to the House of Lords refused: [1982] EWCA Civ 3.
2. Employment Appeal Tribunal — Appeals from the Industrial Tribunal dismissed; leave to appeal granted.
3. Industrial Tribunal — Complaints dismissed after finding that the indirectly discriminatory requirement was justifiable.