Coker and Osamor v the Lord Chancellor and the LCD [2001] IRLR 116
Lord Irvine's appointment of Garry Hart as his special adviser after the 1997 General Election victory was controversial. Allegations of "jobs for the boys" were rife.
After the appointment, Jane Coker brought a claim of sex discrimination at the Employment Tribunal and Martha Osamor brought a claim for both sex and race discrimination. Amid considerable publicity the Employment tribunal found in favour of Ms Coker, but Ms Osamor did not succeed. The Employment Appeal Tribunal has now ruled in the Lord Chancellor's favour, with the effect that both claims before the tribunal have been dismissed. The two women are likely to appeal to the Court of Appeal.
The EAT took the opportunity to revisit the law on indirect discrimination after the Seymour-Smith case. In so doing, it analysed the well-known components of an indirect discrimination claim:
the application of a "requirement or condition";
which is such that the proportion of women who can comply is considerably smaller than the proportion of men who can comply with it;
which the employer can not justify; and
which is to the woman's detriment.
The Lord Chancellor tried to argue that the "requirement" was not only that the successful candidate should be known to him, but also that they should have his trust.
The EAT saw no reason to interfere with the Tribunal's formulation of the requirement.
On "disproportionate impact", the Lord Chancellor argued that a technical comparison is required which involves finding the total number of workers to whom the "requirement" applies and then assessing the proportion of men and women within that total who could comply. By a majority, the EAT decided that there was no actual evidence of "disproportionate impact" in this case and so allowed the appeal. Appli-cants can ask Tribunals to draw inferences, but usually there must be some evidence, however indirect to support that inference.
On justification, the EAT concluded that the standard an employer has to meet has been lowered by Seymour-Smith. The test now is whether the requirement reflects a legitimate aim, which is not itself discriminatory, and which the employer could reasonably consider as suitable for attaining that aim. The EAT decided that, in any event, the Lord Chancellor had failed to meet even this lower test.
Controversially, the EAT decided by a majority that neither applicant suffered a detriment. It was not enough that they could not comply with the "requirement". Instead there had to be some "physical" or "economic" consequence as a result of the discrimination. The minority view of the EAT was that Ms Coker had suffered a detriment - she met the criteria for the job except for the discriminatory condition of being personally known to the Lord Chancellor and therefore was denied the opportunity to apply for the post and be considered for it.
The Lord Chancellor is obviously pivotal to the development of the law - but not usually as a party in a case. With this case set to go to the Court of Appeal he may find himself making law in more ways than expected, and not necessarily to his liking.