Hereward & Foster Llp & Anor v The Legal Services Commission

A tender criterion awarding maximum points for on-site supervision throughout office hours was not shown to cause indirect sex discrimination. The evidence did not establish a particular disadvantage to women or material disadvantage to the individual supervisor or firm. The criterion was, in any event, a proportionate means of pursuing high-quality legal services.

A public authority must give substantive and rigorous consideration to its equality duties before adopting a policy. The absence of unlawful discrimination does not make the duty irrelevant. Failure to consider the potential effect of a tender criterion on part-time workers breached section 76 A of the Sex Discrimination Act 1975. Nevertheless, permission was refused because the challenge was brought out of time and extending time would prejudice third parties and harm good administration.

Hereward & Foster LLP and Debbie Adler challenged the Legal Services Commission’s refusal to award them an immigration legal-aid contract. The tender criteria awarded eight points for an immigration supervisor to be based and regularly working at the relevant office for 100% of its opening hours, but only five points for attendance of 80–99%.

The claimants argued that the criterion indirectly discriminated against women, particularly part-time workers, and that the LSC had failed to comply with its equality duty under section 76 A of the Sex Discrimination Act 1975. The LSC also argued that the claim was brought too late. The central issues were whether the criterion was discriminatory or disproportionate, whether the equality duty had been performed, and whether time should be extended.

1. Indirect discrimination. The supervisor attendance criterion was applied to the bidding entity and did not depend on the gender of the partners controlling it. The relevant disadvantage, if any, arose from part-time supervision arrangements and the hours worked by those supervised.
2. The statistical evidence showed that women were more likely than men to work part time, but it did not establish that this criterion caused a disparate adverse impact on women generally or on women in senior supervisory positions. Bidders had substantial time to recruit additional part-time supervision, train an existing worker, or adjust working patterns. The claimants had not shown that they or Ms Adler were materially disadvantaged.
3. If disadvantage had been established, the criterion was a proportionate means of achieving the legitimate aim of securing high-quality publicly funded legal services. Immediate access to an on-site supervisor was more effective than telephone or email access, and awarding maximum points for full-time cover was justified as one element of a wider scoring system.
4. Equality duty. Section 76 A imposed a mandatory and continuing duty requiring substantive, rigorous and open-minded consideration before the relevant function was performed. A tick-box exercise was insufficient, but an express reference to the duty was not essential. The LSC had assessed the earlier consultation criteria but had not considered the equality implications of the subsequently devised attendance criterion. It could not rely on ex post facto explanations. The criterion was capable of affecting providers using part-time supervisors, so the LSC had failed to have due regard.
5. Time and relief. The grounds of challenge arose when the tender documents were published on 30 November 2009. A disappointed bidder could not wait to see whether an apparent defect affected the result. Applying the approach in Jobsin Co UK Plc v Department of Health [2002] EWCA Civ 1241, there was no good reason to extend time. Re-running or revising the tender would prejudice successful bidders and damage good administration. Permission to apply for judicial review was therefore refused after the rolled-up hearing.