In this 1982 case, an employer asked the head of careers at a school for suitable applicants for a job. The employer said it would rather she did not send anyone coloured. The EAT held this was unlawful as attempting to “induce” discrimination, contrary to the Race Relations Act 1976. To “induce” meant “to persuade or to prevail upon or to bring about”.
Commission for Racial Equality (CRE) v Imperial Society of Teachers for Dancing [1983] ICR 473, Employment Appeal Tribunal (EAT), 1982.
Facts
A member of staff at the Imperial Society of Teachers for Dancing (the Society) telephoned the head of careers at a local school, asking for a suitable applicant to fill a job vacancy. On the facts found by the tribunal, the Society’s staff member said she would rather the school did not send anyone coloured, because they would feel out of place as there were no other coloured employees.
The EAT accepted that the head of careers was an “employment agency” as defined in s.78 Race Relations Act 1976. So if the head of careers had acceded to the Society’s request, she would have been liable for discrimination under s.14 of the 1976 Act. The issue here was whether the Society was liable under ss.30-31 of that Act for instructing, procuring or inducing discrimination.
Held: The Society was liable under s.31 Race Relations Act 1976 for attempting to induce discrimination.
EAT decision
Inducing
Under s.31 Race Relations Act 1976, it was unlawful to induce, or attempt to induce, a person to do any act which contravened Part II or III of the Act. (S.14 was in Part II.)
The industrial tribunal* had found that “induce” must imply an element of “stick or carrot”. The tribunal had said a mere request, which was the highest the Society’s staff member’s words could be put at, came far short of an attempt to induce within s.31.
The EAT held that “induce” in s.31 was not so limited. There might in some cases be an offer of benefit or a threat of detriment. However, in its ordinary meaning “to induce” meant “to persuade or to prevail upon or to bring about”. The staff member’s words did constitute an attempt to induce the head of careers not to send coloured applicants for interview.
*Industrial tribunals are now called employment tribunals.
Procuring
The EAT held that s.30 Race Relations Act 1976 (instructing, procuring or attempting to procure) did not apply here. This was because the Society did not fall within paragraphs (a) or (b) of s.30, which required either (a) that the Society had authority over the head of careers, or (b) that the head of careers was accustomed to act in accordance with the wishes of the Society.
However, the EAT disagreed with the industrial tribunal’s view that an expression of preference was not an attempt to procure within s.30. The EAT said that in this context, “procure” and “attempt to procure” had a wide meaning. They were apt to include the use of words which bring about or attempt to bring about a certain course of action.
My comment
This case is cited on the meaning of “induce” in s.111(3) Equality Act 2010: see Instructing or causing discrimination, or helping it>”Induce” (s.111(3)).
It would not be a defence to direct discrimination that the employer’s “motive” was for the recruit not to feel out of place: Amnesty International v Ahmed, EAT, 2009.
