Spicer v Government of Spain

In an indirect discrimination claim, the applicant identifies the requirement or condition. The pool for assessing disproportionate impact is selected by logic, having regard to that requirement. Persons in the pool must have the same, or not materially different, relevant circumstances under section 3(4) of the Race Relations Act 1976. Where the requirement applies to all employees in the relevant workplace, the pool may comprise all those employees. A respondent cannot avoid the consequences of a struck-out objective-justification defence by recasting justification as an argument on detriment or comparability.

The Employment Tribunal dismissed claims of direct and indirect racial discrimination and victimisation brought by a British teacher against the Government of Spain. It upheld the unfair-dismissal claim but stayed that issue because of the statutory upper-age limit. The Tribunal found that Spanish civil servants posted from Spain received salary and relocation allowances producing a substantially higher pay package than locally recruited British teachers, but concluded that the appellant had suffered no detriment because his basic salary was higher.

The Employment Appeal Tribunal allowed part of the appeal but upheld the dismissal of the indirect pay-discrimination claim. It accepted that the relevant comparison was not like-for-like and treated section 3(4) of the Race Relations Act 1976 as preventing the proposed pool. The central issues in the Court of Appeal were whether the pay differential constituted detriment, whether section 3(4) prevented the comparison, and how the appropriate pool was to be identified.

1. Appeal allowed and pay issue remitted. The pay issue was remitted to the Employment Tribunal for assessment of compensation, not for a rehearing. The stayed unfair-dismissal issue was outside the appeal. The EAT’s remittal of the promotion and pension issues was not challenged.
2. The Tribunal had correctly identified the requirement or condition: entitlement to the higher pay package, including the living-expenses payment, required the employee to be a Spanish civil servant recruited in and posted from Spain. That requirement had a disparate impact on locally recruited British staff.
3. Where two teachers perform the same work and one receives substantially less than the other in circumstances satisfying section 1(1)(b)(i) of the Race Relations Act 1976, the lower-paid teacher has suffered a detriment. The Tribunal’s conclusion that there was no detriment because the appellant’s basic pay was higher was unsustainable.
4. The respondent’s objective-justification defence under section 1(1)(b)(ii) had been struck out for failure to comply with a tribunal order. The respondent could not reintroduce the same justification through arguments that the allowance made the comparison non-comparable or that no detriment existed.
5. Applying Allonby v Accrington and Rossendale College and others [2001] ICR 1189, the pool is principally a matter of logic once the requirement or condition has been identified. Section 3(4) requires the relevant circumstances of the persons compared to be the same or not materially different. Here the requirement applied to every teacher at the school, so the logical pool was all the teachers. Excluding Spanish civil servants because their secondment explained the allowance would distort the comparison.
6. The court did not decide the correctness of Hanly v Norinchukin Internatonal plc. Any suggestion that section 3(4) had no application as such to indirect discrimination was to be treated with caution.
7. The practical lesson was that respondents to indirect race or sex discrimination claims should comply with tribunal orders and plead their objective-justification defence fully.

1. Court of Appeal (Civil Division) — Appeal allowed. The pay issue was remitted to the Employment Tribunal for assessment of compensation.
2. Employment Appeal Tribunal — In a judgment delivered on 25 November 2003, the EAT allowed the appeal in part but dismissed the appeal concerning indirect discrimination in pay.
3. Employment Tribunal — In a reserved decision promulgated on 8 May 2003, the Tribunal dismissed the direct and indirect discrimination and victimisation claims, while upholding the unfair-dismissal claim and staying that issue pending the outcome of Rutherford v Town Circle (No 2).