The court considered an allegation of discrimination made as to the appointment of a wages clerk by a district council.
Held: Lord Lowry said: ‘It must not be forgotten that when the Act uses the word ‘discrimination or ‘discriminate’ it is referring to an employer who makes a choice between one candidate and another on the ground of religious belief or political opinion; it is not speaking of an incidental disadvantage which is due to a difference between the religion of the employer and of the candidate but of a deliberate, intentional action on the part of the appointing body or individual.
Here I must dispose of a misleading argument which was raised before the learned county court judge but not seriously pursued in this court. An action may be deliberate without being malicious. Most acts of discrimination are both, but the only essential quality is deliberation. If a Protestant employer does not engage a Roman Catholic applicant because he genuinely believes that the applicant will not be able to get on with Protestant fellow workmen, he is discriminating against the applicant on the ground of his religious belief, although that employer’s motives may be above reproach. If women are allowed to stop work five minutes early in order to avoid being endangered when the day’s work ends, it has been decided that the men in the workforce are discriminated against on the ground that they are men. The employer’s decision to keep the men at work longer, though reached in good faith, was deliberately based on the fact that they were men.
Accordingly, it can be stated that, although malice (while often present) is not essential, deliberate intention to differentiate on the ground of religion, politics, sex, colour or nationality (whatever is aimed at by the legislation) is an indispensable element in the concept of discrimination. The distinction is sometimes expressed as one between motive and intention. In Peake v. Automotive Products Ltd. [1977] Q.B. 780, the case about releasing women early from their work, Phillips J. stated, at p. 787: ‘it seems to us that [counsel] is confusing the motive or the purpose of the act complained of with the factual nature of the act itself. Section 1(1)(a) requires one to look to see what in fact is done amounting to less favourable treatment and whether it is done to the man or the woman because he, is, a man or a woman. If so, it is of no relevance that it is done with no discriminatory motive.’ This idea runs through all the cases.’
Judges:
Lowry LJ
Citations:
[1983] NI 346
Statutes:
Fair Employment (Northern Ireland) Act 1976 16(2)
Northern Ireland, Discrimination
Updated: 15 May 2022; Ref: scu.264031