Meer v London Borough of Tower Hamlets

For indirect discrimination under section 1(1)(b) of the Race Relations Act 1976, an employer must have applied a mandatory requirement or condition: a must which operates as an absolute bar to selection. The mere consideration of factors that may assist an applicant, even where those factors are less likely to be possessed by a particular racial group, is insufficient. The Court of Appeal is bound by an earlier decision of that court which squarely addressed the issue. Arguments that the earlier decision is undesirable or requires legislative reform cannot justify departure by the court.

Mr Meer, an Indian solicitor, applied for the post of Solicitor to the London Borough of Tower Hamlets. He was not long-listed. The selection process included Tower Hamlets experience among ten informal criteria. Mr Meer alleged indirect racial discrimination under section 1(1)(b) of the Race Relations Act 1976; his direct-discrimination claim had failed and was not pursued on appeal.

The Industrial Tribunal dismissed the indirect-discrimination claim. The Employment Appeal Tribunal, presided over by French J, dismissed his appeal on 15 May 1987. The central issue before the Court of Appeal was whether Tower Hamlets experience was a requirement or condition within section 1(1)(b), notwithstanding that it was treated as a factor in assessing candidates rather than as an express qualification.

1. Appeal dismissed. The court held that [1983] I.C.R. 428 was binding. That decision established that a requirement or condition under section 1(1)(b) must be mandatory: it must be something with which the applicant has to comply, and its absence must operate as an absolute bar to selection.
2. The criterion of previous Tower Hamlets experience was only one factor in the selection arrangements. It was possessed by four of the 23 applicants, four of the 11 long-listed candidates and two of the five shortlisted candidates. Its absence was not an absolute bar, since a candidate without that experience could still be selected. It therefore was not a statutory requirement or condition.
3. The court rejected the proposed distinction that a factor might be a “must” for maximising an applicant’s prospects while not being a “must” for reaching the long list. That would impermissibly evade the binding authority.
4. Lord Justice Staughton added that treating every factor taken into account as a statutory requirement would give section 1(1)(b) an extraordinarily wide and capricious effect, potentially making ordinary selection decisions actionable without racial intention or effect. Lord Justice Dillon expressed no view on the merits of the statutory construction apart from the binding authority, but noted that any reform was for Parliament.
5. The court did not determine whether the criterion could have been justified under section 1(1)(b)(ii), nor the application for leave to serve a respondents’ notice out of time seeking remission. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal dismissed with costs; leave to appeal to the House of Lords refused.
• Employment Appeal Tribunal: French J dismissed Mr Meer’s appeal on 15 May 1987.
• Industrial Tribunal: The complaint under the Race Relations Act 1976 was dismissed on 21 April 1986.