Legal tender criterion not discriminatory on grounds of sex

21/12/10

Mr Justice Burnett today rejected an application for judicial review of a criterion used in the Legal Services Commission's tender process for immigration work.

Hereward and Foster LLP, an established London legal aid firm, had claimed that one of the scoring criteria used to select firms for publicly funded immigration work was indirectly discriminatory on grounds of sex contrary to the Sex Discrimination Act 1975. Maximum points were awarded to those firms with a supervisor working for 100% of the time when immigration law services were being provided. Hereward & Foster's supervisor was a woman working part-time. It claimed that the supervisor attendance criterion put women (who are more likely to work part-time) at a particular disadvantage compared with men and was not justifiable.

The court held that, because the criterion permitted work-sharing arrangements, there was no evidence that the criterion put women at a particular disadvantage; even without changing their working hours, Hereward & Foster could have restructured their working arrangements so as to achieve maximum points; and, in any event, any discrimination was justified by the objective of improving the quality of legal services in the field of immigration.

Although the criterion itself was not discriminatory, the LSC had not complied with its duty under s. 76A of the 1975 Act to have "due regard" to the need to eliminate unlawful discrimination and to promote equality of opportunity. But the Claimants had not challenged the criterion when it was first published; instead they had waited to see whether they were successful in obtaining a contract; they had only sought judicial review when it was clear that they had not been successful. Applying the authorities on delay in the procurement context, the claim was late. The recent decision of the Divisional Court in R (Law Society) v LSC was distinguishable. Granting relief would cause real prejudice to third parties and detriment to good administration. So permission would be refused on the ground of delay.

The judgment is here.