Hampson v Department of Education and Science (House of Lords)

In brief

The House of Lords gave a narrow reading to the statutory-authority defence in the Race Relations Act 1976 and allowed a teacher's appeal, but it did not decide the objective-justification question for which the case is often cited. In this decision of 7 June 1990 ([1990] UKHL 15), a Hong Kong-trained teacher had been refused Qualified Teacher status because the Secretary of State applied an unwritten administrative criterion that comparable training must be three consecutive years; hers was two years plus a later one-year top-up. She claimed indirect race discrimination; the Department relied on the statutory-authority defence in RRA 1976 s.41. The House adopted the narrow construction of s.41: the defence covers only acts done in necessary performance of an express obligation contained in the instrument, not acts done in the exercise of a power or discretion conferred by it. Lord Lowry said the wide construction 'is seen to be irreconcilable with the purpose and meaning of the Act of 1976', agreeing with Parker LJ in the Court of Appeal that it 'must be rejected'. Decisive on the facts was that a duty to make some decision does not bring the discriminatory criterion within the defence, because 'the Secretary of State had first to set up and apply a non-statutory criterion the setting up and application of which involved the exercise of his administrative discretion and led to the discriminatory act complained of'. The appeal was allowed; the decisions of the Court of Appeal, EAT and Industrial Tribunal were set aside, and the case was remitted to a differently constituted Industrial Tribunal. The House expressly declined to rule on whether the criterion was 'justifiable' and remitted that question. The well-known 'Hampson test' for objective justification (a balance between the discriminatory effect and the reasonable needs of the party applying the condition) is Balcombe LJ's Court of Appeal formulation ([1989] ICR 179), later approved in Webb v EMO Air Cargo; it is not a House of Lords holding in this case. The two strands of the case's legacy are often conflated.

Key provisions

• ¶ (Lord Lowry, quoting Balcombe LJ at [1989] ICR 179, 185F) — The narrow/wide dichotomy framed : "the words 'in pursuance of any instrument' are apt in their context to include, not only acts done in necessary performance of an express obligation contained in the instrument ('the narrow construction') but also acts done in exercise of a power or discretion conferred by the instrument ('the wide construction'). Both constructions are possible." — framework — the question the House had to answer.
• ¶ (Lord Lowry) — The holding: narrow construction : "It is, however, the consideration of the wider context that demonstrates the need to adopt the narrow construction of the words 'in pursuance of', since the wide construction is seen to be irreconcilable with the purpose and meaning of the Act of 1976." And: "I have no hesitation in accepting the submission that the construction mentioned above... as 'the wide construction' must be rejected." — claimant — the load-bearing passage for the statutory-authority defence: mandated, not merely permitted.
• ¶ (Lord Lowry) — A duty to decide is not enough : Rejecting the CA majority: the discriminatory criterion "was no doubt applied 'in pursuance of' the Regulations of 1982 according to the wide construction... but it was not so applied according to the narrow construction, under which the requirement must be found in the Regulations"; the criterion "was based on administrative practice and discretion and was not a requirement laid down by the Regulations". "the Secretary of State had first to set up and apply a non-statutory criterion the setting up and application of which involved the exercise of his administrative discretion and led to the discriminatory act complained of." — claimant — the practical test: is the specific act done found in the instrument, or is it a discretionary gloss on it? Policy anchor: almost every discretionary decision is taken against a statutory background, so the wide construction would swallow the Act.
• Statutory provision — RRA 1976 s.41(1) (verbatim) : "Nothing in Parts II to IV shall render unlawful any act of discrimination done— (a) in pursuance of any enactment or Order in Council; or (b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or (c) in order to comply with any condition or requirement imposed by a Minister of the Crown ... by virtue of any enactment." — framework — the predecessor formula. Compare EA 2010 Sch 22 para 1: "anything P must do pursuant to a requirement" — narrower and more explicit on its face.
• Not a holding — the justification test : The House expressly declined to rule on justifiability and remitted it. The 'Hampson test' (balance of discriminatory effect against the reasonable needs of the party applying the condition) is Balcombe LJ's formulation in the Court of Appeal ([1989] ICR 179), later approved in Webb v EMO Air Cargo — framework.

When relevant

All indirect discrimination justification analyses under EA2010 s.19. Cited alongside Bank Mellat and Akerman-Livingstone for the proportionality framework. Especially relevant where respondent relies on operational necessity, cost, or administrative efficiency as justification.