Hampson v Department of Education And Science

The House of Lords construed section 41 of the Race Relations Act 1976 narrowly: acts of discrimination are only rendered lawful under section 41 where they are done "in pursuance of" an enactment, Order in Council or instrument in the sense of compliance with a statutory requirement or duty contained in that instrument. The Secretary of State's refusal to approve the appellant's overseas teacher training course (and the non-statutory requirement applied in doing so) was not an act done in pursuance of the Education (Teachers) Regulations 1982 for the purposes of section 41(1)(b). The House therefore allowed the appeal and remitted the issue of justifiability under section 1(1)(b) of the Race Relations Act 1976 to an industrial tribunal for rehearing.

The appellant, trained and qualified in Hong Kong, applied to the Secretary of State for recognition as a qualified teacher in England and Wales (grant of QT status) under Regulation 13 and Schedule 5 to the Education (Teachers) Regulations 1982. The Secretary of State refused on the ground that her Hong Kong course was not comparable to the specified courses, applying an administrative requirement (for example a three-year course) which the appellant alleged had a disparate impact on her racial group.

The appellant complained of direct and indirect racial discrimination to an industrial tribunal. The tribunal dismissed direct discrimination and rejected the indirect discrimination claim on the basis that no "requirement or condition" was applied; alternatively it held that section 41(1)(b) rendered lawful any discrimination done "in pursuance of" an instrument. The Employment Appeal Tribunal and Court of Appeal considered the meaning of "in pursuance of"; the Court of Appeal by majority held that section 41(1)(b) afforded a complete defence. The House of Lords heard an appeal limited to the construction of section 41.

The central issues were (i) whether the Secretary of State's decision was an act "in pursuance of" the Regulations of 1982 within section 41(1)(b), and (ii) if not, whether the administrative requirement was justifiable under section 1(1)(b)(ii). The House of Lords held that the correct construction of "in pursuance of" is a narrow one: it imports a notion of obligation or compliance with statutory requirements and does not extend to discretionary administrative criteria established and applied by the decision‑maker unless those criteria are themselves required by the instrument. The court gave weight to the statutory scheme, parliamentary scrutiny and policy considerations and rejected the wide construction that would confer almost universal immunity on acts by statutory bodies. The House allowed the appeal, set aside earlier orders, and remitted the matter to an industrial tribunal for rehearing on justifiability.

Appeal allowed. The House of Lords adopted a narrow construction of "in pursuance of" in section 41 of the Race Relations Act 1976, holding that discretionary administrative requirements applied by a Minister are not protected by section 41(1)(b) unless they are themselves required by the instrument; the case was remitted to an industrial tribunal to determine justifiability under section 1(1)(b).

Industrial Tribunal decision 24 November 1986 (decision for respondents on section 41 point); Employment Appeal Tribunal [1988] I.C.R. 278 (appeal on construction and justifiability); Employment Appeal Tribunal order 16 December 1987 (set aside by House); Court of Appeal [1989] I.C.R. 179 (majority: section 41 defence available; Balcombe L.J. dissenting); Appeal to House of Lords [1990] UKHL 15 allowed and case remitted to a differently constituted industrial tribunal for rehearing on justifiability.