Meade-Hill v British Council

For indirect sex discrimination, the application and detriment requirements may be assessed when the employment contract is entered into. An employer applies a contractual requirement by holding the employee bound by it, even if it has not yet been enforced in a particular situation. A term may cause detriment where it has the potential to impose an obligation with which the employee cannot comply; actual enforcement or actual loss is unnecessary. The court must then consider whether the requirement is justifiable irrespective of sex. Section 77(5) of the Sex Discrimination Act 1975 permits anticipatory relief by removal or modification of an unenforceable discriminatory term.

Mrs Meade-Hill, supported by her union, challenged a mobility clause in her British Council employment contract. The clause required Grade G and above employees in the Home Career Service to serve anywhere in the United Kingdom as the Council required. She argued that the clause constituted indirect sex discrimination because women were disproportionately likely to be secondary earners and therefore less able to relocate their homes.

The Central London County Court dismissed the application on 6 January 1994. The appeal concerned whether the application was premature because the clause had not been enforced against Mrs Meade-Hill, and whether section 77 permitted the court to grant relief before actual detriment occurred.

1. Appeal allowed. The application was remitted to the county court to determine whether the mobility clause was justifiable irrespective of sex. The costs orders below were set aside or reserved as directed.
2. Under section 1(1)(b) of the Sex Discrimination Act 1975, the relevant question was whether the application and detriment requirements should be judged when the clause was incorporated into the contract, when non-compliance became reasonably foreseeable, or only when enforcement was attempted. The Court of Appeal adopted the first approach.
3. The employer was applying the clause because it formed part of the employee’s contract and the Council held her bound by it as a general obligation. It was unnecessary that the clause had already been invoked against her.
4. The detriment requirement was satisfied by the clause’s potential operation. A contractual power to require a change of workplace involving a change of home could disadvantage a woman who, as a secondary income-earner, could not comply. The employee did not need to prove actual enforcement or actual loss at the date of the application.
5. This construction accorded with the broad statutory purpose of addressing indirect discrimination and promoting awareness of unequal opportunities. Any risk of unmeritorious applications was controlled by the statutory justification defence and the court’s discretion under section 77(5) to make such order as was just for removing or modifying the term.
6. The question of justification had not been determined below because of the judge’s conclusion on the primary issue. It therefore required determination on remittal, with further evidence if the county court considered it appropriate.

• Court of Appeal: Allowed the appeal and remitted the application to the county court on the issue of justification.
• Central London County Court: Judge Quentin Edwards QC dismissed the application in a judgment handed down on 6 January 1994.