Appeal No. UKEAT/0097/07/LA
UKEAT/0099/07/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 November 2007
Judgment handed down on 17 December 2007

Before
HIS HONOUR JUDGE RICHARDSON
DR K MOHANTY JP
MR T MOTTURE

MR A PADGETT	APPELLANT

1) SIR NICHOLAS SEROTA
2) THE BOARD OF TRUSTEES OF THE TATE GALLERY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A D PADGETT
(The Appellant in Person)	
For the Respondents	MR T SHEPPARD
(of Counsel)
Instructed by:
Messrs Bates Wells & Braithwaite Solicitors
2-6 Cannon St
London 
EC4M 6YH	

SUMMARY
Religion or belief – whether claim fell within Part II (Employment and Vocational Training).
The Tribunal concluded that the claim did not fall within Part II of the Employment Equality (Religion or Belief) Regulations 2003.  It did not err in law in reaching this conclusion.  The claimant did not establish that his claim fell within any limb of reg 6(1) of the 2003 Regulations. 
HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by Mr Anthony Padgett against a judgment of the Employment Tribunal sitting at London Central dated 12 June 2006.  By its judgment the Tribunal struck out Mr Padgett’s claim of discrimination contrary to the Employment Equality (Religion or Belief) Regulations 2003.  The Tribunal found that it did not have jurisdiction to consider his claim under Part II of the Regulations, which is entitled “Discrimination in Employment and Vocational Training”.  In any event the Tribunal found that the claim against Sir Nicholas Serota should be struck out as having no reasonable prospect of success.

2.	Mr Padgett’s notice of appeal ran to a massive 56 pages.  However, at a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993, Judge McMullen QC found that there were no reasonable grounds for appealing except in two respects, both of which concern the claim against the Board of Trustees of the Tate Gallery (“the Tate”).  On any view the striking-out of the claim against Sir Nicholas Serota must stand. 

3.	There is a second appeal by Mr Padgett against a judgment of the Employment Tribunal dated 18 October 2006.  This relates to a second set of proceedings which he brought alleging victimisation.  Those proceedings cannot succeed unless the Tribunal was wrong in its conclusion that part II did not apply.  

4.	Mr Padgett is a performance artist.  The facts underlying his claim are eccentric.  There is, as Mr Sheppard on behalf of the Tate reminded us, reason to suppose that Mr Padgett may regard the bringing of Tribunal proceedings as in itself a type of performance art.   However, the Tribunal considered his claim on its legal merits, and so must we.  It is right to say that Mr Padgett addressed us earnestly and courteously on his grounds of appeal.
5.	We emphasise that the appeal is limited to a jurisdictional point.   The Tribunal below did not make any findings as to whether there was any merit in Mr Padgett’s discrimination claim.  Nor do we make any such finding.

The facts
6.	In West Norwood Cemetery there stands a memorial to Sir Henry Tate, the Victorian philanthropist who patented the sugar cube, made a fortune from sugar refining and founded the Tate Gallery.  The memorial is akin to a family vault – single storey, the size of a small chapel, with a sloping roof.

7.	On 25 July 2005 Mr Padgett set out in writing a proposal to Tate Modern.  The proposal was for “a performance around a reconstruction of Tate Memorial (Norwood Cemetery) in Tate Modern” made of Tate and Lyle sugar cubes at half size.  

8.	In order to do full justice to this proposal it is necessary to set out the substance of Mr Padgett’s letter:

“I would like to put in writing my recent proposal to you, re performance around the themes of contemporary art and religious fundamentalism. Points 1 & 2 give the rationale behind the proposal, 3 is a sketch of the proposal and 4 is my background.
1. Religion, democracy and fundamentalism will now be a focal point of discussion for the foreseeable future. Religious extremism replaces the Avant Garde as the oppositional force to consumer globalisation. Thus art needs to address issues of religion to remain contemporary.
2. Tate galleries was created by Sir Henry Tate, an active Unitarian (see enclosed information). Unitarianism influenced US constitution and Thomas Jefferson’s separation of Church and State, the US provides the prime model of consumer democracy and so Unitarianism provides a model for a liberal “pick n mix” religions democracy.
3. Resurrection of these concerns in a postmodern consumer context can be symbolically achieved through a performance around a reconstruction of Tate Memorial (Norwood Cemetery), in Tate Modern. This would be made of Tate & Lyle sugar cubes at ½ scale.  Measured drawings would be on display with the construction.  A performance and talk around the work would also occur.
4.1 am an artist (and am a Unitarian) and the pioneer of pick n mix religious art with the academic term “postmodern religious art” (subject of my MA thesis and talk at Tate Modern conference “Heaven on Earth” January 2005). My background is in contemporary art, writing, teaching Religious Education, conservation of places of worship for the Palestinian, Israeli and US governments.”
9. 	That was the sum total of the proposal.  With the proposal Mr Padgett sent a page containing a picture of the memorial and a short summary of Sir Henry’s life, together with his own CV and a page illustrating a previous piece of work. The Tate did, however, have some further information about Mr Padgett.  He had, for example, sent them a DVD of his performance work in the past.

10.	After some delay the Tate replied.   In a letter dated 7 September 2005 the Curator of Contemporary Art and Performance, to whom the proposal had been addressed, said:

	“Thank you very much for the information you have sent to us about your religious cabaret.  We appreciate being made aware of your work and it has been interesting to look at the documentation.  Having discussed your proposal with my colleagues, however, we do not see it fitting in with our future programming at Tate Modern or Tate Britain.
I wish you luck with the realisation of the Henry Tate Memorial and hope that you will keep us informed of future projects.”

11. 	Mr Padgett then served a questionnaire under the discrimination legislation, asserting that he had been the subject of discrimination contrary to the Employment Equality (Religion and Belief) Regulations 2003.   As compensation he sought to be made one of the four shortlisted nominees for the 2006 Turner prize.  Since the prize would be for work during the year 2005, he sought to be nominated for making his complaint and thereby, as he put it, expanding the concepts and roles of art, religion and galleries.

The statutory context
12.	In order to understand the issues, it is necessary to refer to certain provisions of the Employment Equality (Religion or Belief) Regulations 2003.

13.	By reg 2(3) “employment” is defined as follows:

“employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions shall be construed accordingly”

14. 	Reg 3 of the 2003 Regulations provides a definition of discrimination on the grounds of religion or belief.  Reg 4 provides a definition of discrimination by victimisation.  These two regulations do not in themselves give rise to a cause of action; they define discrimination for the purpose of the regulations which follow.  

15.	Those provisions which fall within the employment field are set out in Part II of the Regulations.  For the purposes of this appeal the key provision is reg 6(1).  Subsequent paragraphs of reg 6 apply to existing employees.

16.	Reg 6(1) of the 2003 Regulations provides:
“6 Applicants and employees
(1) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person-
(a) in the arrangements he makes for the purpose of determining to whom he should offer employment.
	(b) in the terms on which he offers that person employment, or
	(c) by refusing to offer, or deliberately not offering, him employment.”

The Tribunal proceedings
17.	Mr Padgett’s claim was listed before the Tribunal for a pre-hearing review.  Several issues were listed for consideration, including “whether the Tribunal had jurisdiction to hear the claims on the basis that he was neither an employee nor an applicant for employment with the respondent”.

18.	Before the Tribunal it was identified that the letter dated 25 July gave rise to his complaint.  Earlier matters were relied on by Mr Padgett as background material only.  

19.	The Tribunal identified his case as having three elements.  Firstly, that the Tate had a rolling open tender programme, set out in its Acquisitions Policy and its Exhibition Advice.  Secondly, that he responded to that in making his proposal.  And thirdly, that his proposal amounted to an application personally to do work.  We shall return later to the relevance or potential relevance of these elements.

20.	On the question of an open rolling tender programme, the Tribunal considered documents on which Mr Padgett relied.  In one section, headed “Acquisition Proposals” the Tribunal quoted the following:

“Proposals for acquisition should be sent to the collections department.  In the field of contemporary art acquisition reflect those artists who have already made a significant contribution and have achieved national or international recognition.”

21.	In another section, headed “Exhibition Proposals”, the Tribunal quoted the following:
“Exhibition proposal should be sent to the exhibitions department at Tate Modern or Tate Britain.  All proposals will be considered by curatorial staff however it must be stressed that it is rare for submissions from artists to exhibit their work at Tate to be included in the programme”.

22.	The Tribunal concluded: 

	“39 We consider that there are potentially circumstances in which an organisation could either set out an open invitation for individuals or contractors to tender to them and that whilst it may be unusual it is not impossible to envisage a situation where that process could be an open ended one.  Indeed, it is possible that an organisation might have a reputation for, say, accepting volunteers and that they will encourage speculative enquiries from individuals.  However, we are not satisfied that the documents referred to by the Claimant actually amount to an open invitation to tender.  The other documentation provided by the Claimant in relation to the general practice in the art world appears to be largely background and is of little assistance in construing the particular relationship between the Claimant and the Second Respondent.”

23.	After considering the documents further, the Tribunal said:

“We consider, that, at best the Acquisitions and Exhibition policies could be categorised as an encouragement, but of a limited nature, to artists. They make very clear that it would not be reasonable for an individual artist to expect to be able to submit their work or a proposal for an exhibition to the Tate and for it to necessarily be accepted.  
There does not appear to be a reasonable expectation engendered by the documents at page 64 and onwards, that the Tate would consider any work of art submitted to it.  They simply give an indication of the general policy adopted by the Tate in acquiring works of art and in setting up exhibitions.”

24.	On the question whether Mr Padgett sent his proposal in response to an open rolling tender programme, the Tribunal said the following: 

	“41 Secondly, we have some doubts as to whether, in any event, the Claimant’s letter of 27 July which he deems to be his application for work, was made in response to that document. The Claimant’s evidence was somewhat equivocal on this point. He said that he “partly had it in mind” and that he “possibly” relied on the exhibition proposals but he accepted that really what he was proposing did not neatly fall into the categories set out in that document and said that he essentially responded to the spirit of the document. It therefore seems doubtful that he made an application, if that is what he made, in response to a tender document, even if the document could be construed as an open invitation to tender. It appears that there may be some doubt about whether the Claimant’s application of 25 July was in response to that particular document.”

25. 	It was, however, the third point to which the Tribunal paid the most detailed attention:  

“42 Thirdly, turning then to the nature of the application, the Tribunal are also not satisfied that the letter of 25 July sent to three individuals at the Tate amounted to an application for work. We note that the proposal at paragraph 3 is far from specific and that no drawings or slides or any firm information are provided in relation to the construction nor is there any detail given about the nature of the performance proposed. It is also of significance that in paragraph 3 which is the sketch of the proposal as identified by Mr Padgett, that there is no mention that he will personally carry out the work. In that paragraph he does not mention himself at all and indeed when he does describe his own background, he does not give any indication e.g. his skills in reconstruction and stone masonry which might be relevant to constructing the work of art proposed.

43 Whilst we accept that in response to questions from Mr Shepherd, Mr Padgett denied that anyone else could carry out the work, it is not clear from the proposal put forward that it is a proposal for him to personally do the work. It seems to the Tribunal that the letter fails on two counts to amount to an application for work. Following the clear guidance in Mingeley the Tribunal have to be satisfied that there was potentially a contract which placed the Claimant under an obligation personally to execute any work or labour and there has been no evidence that he was under such obligation. This is supported by the guidance in the case of Paterson v Legal Services Commission that it is not enough for an applicant to show that they might have a general responsibility unless they can show that they would be obliged to carry out those responsibilities in person.

44 Unfortunately for the Claimant in these circumstances, not only is there no clear evidence that he would be personally obliged to perform the work suggested, but because the application is so lacking in specifics, his assertion subsequently that if it is implicit that he would personally do it lacks support. We are conscious that the obligation on the individual to carry out the work personally needs to be the dominant purpose of the contract and it does not appear to us that, in this particular case, Mr Padgett has satisfied that test. What the Claimant has done is put forward a proposal which he envisaged would need further discussion and which appears to be in the nature of an enquiry about the possibility of work rather than an application for work. The provisions of the Regulations require that there should be an offer of employment defined as the offer of a contract personally to do work. The argument which the Claimant relies on, is that this process was an open invitation to tender and to which he responded to that by an application. However in these particular factual circumstances we do not consider that was the case.

45 There is insufficient evidence that the letter of 25 July amounted to an application to personally do work for the Second Respondent. It therefore follows that for these reasons the Tribunal conclude that they do not have jurisdiction under the Employment Equality Regulations and the claim is therefore dismissed.”

The appeal
26.	Judge McMullen QC identified as follows the two issues which he considered were reasonably arguable:  
“16.	He raises four issues. The first is that he qualified under the regulations by the extended definition of “employment”. It is a requirement of a person claiming in the Employment Tribunal that they are an employee or an applicant for employment.  The Tribunal was wrong, he contends to hold that the encouragement given by the Tate for him and others to apply is an invitation to do work.  I agree that it is reasonably arguable that that construction is correct.
17.	Secondly, he contends that the Tribunal was wrong to reject his claim on the ground that it was insufficiently clear that he personally would do the work.  In an engaging image he painted for me, he said it is implicit in a performance artist’s work that the work would be done by that artist, and cited Ms Yoko Ono as the leading practitioner in this field.  I can readily accept that if Ms Ono were engaged pursuant to an invitation such as this and did not perform, there would not be a proper satisfaction of the contract.  Those then are the two issues which I will send to a full hearing.”

Submissions
27.	Mr Padgett submitted that the Tribunal erred in law in holding that the Tate’s “limited encouragement” was not, as he put it, an invitation to work.  He submitted that open, rolling encouragement to apply was legally equivalent to an invitation to work, by which we think he meant an invitation to apply for work.  The degree of encouragement did not in itself matter.  If one kind of encouragement would suffice, why should not another?  

28.	Developing this argument, he took us to legal contexts (far removed from discrimination law) where direct or indirect encouragement had been considered sufficient for the purposes of the law.  He referred us to Article 3 of Council Directive 2000/78/EC, which provides that the Directive should apply to: 
“..conditions for access to employment, to self employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion”

He submitted that encouragement by an employer to make an application is an “arrangement” for the purposes of section 6(1)(a) of the Regulations.

29.	Mr Padgett further submitted that, since his proposal was by a performance artist to put on a performance, it was implicit that the performance would be undertaken personally; this, he submitted, was the dominant purpose of the proposal which the Tate rejected.  He again set before us the Yoko Ono illustration which appealed to Judge McMullen.  The dominant purpose of his proposal was to create a performance; only the artist could undertake the performance.

30.	On behalf of the Tate Mr Sheppard submitted that the Tribunal had the correct legal test in mind and that its evaluation of the material before it was a question of fact.  Mr Sheppard made a more general point.  He submitted that it was not in the public interest for the appeal to succeed.  If every informal proposal to submit art to a gallery were to be treated as an application for employment galleries would constantly be exposed to claims that they had discriminated against or infringed the employment rights of the individual concerned.

31.	We were referred by one or both parties to leading cases which discuss, in the context of discrimination legislation, the concept of a contract to do work personally: in particular, to Mirror Group Newspapers Ltd v Gunning [1986] IRLR 27; Patterson v Legal Services Commission [2004] IRLR 153, and Mingeley v Pennock [2004] IRLR 373.   Mr Padgett sought to distinguish the facts of those cases although, as it seems to us, the Tribunal did not rely on factual similarities within the cases but rather on the propositions of law set out in them.  We were also referred to James v Redcats (Brands) Limited [2007] IRLR 296, in which Elias P discussed these authorities in the course of considering the concept of a “worker” in other areas of employment law.

Our conclusions
32.	Since Mr Padgett was not an employee of the Tate, in order to succeed in his claim he had to establish that he had been the subject of discrimination in one of the respects set out in reg 6(1).  He sought to say that the Tate had discriminated against him in the arrangements it made for determining to whom it should offer employment (reg 6(1)(a)) and by refusing to offer him employment (reg 6(1)(c)).  

33.	Although reg 6 is headed “applicants and employees”, the word “applicant” does not appear in reg 6(1).  In our view it is not necessary for there to be an application as such before reg 6(1) applies.  For example, an employer might make arrangements for recruitment which positively barred applications of a particular kind, and thereby prevented a person from applying.  If those arrangements amounted to unlawful discrimination, it would be no answer that the person on whom they impacted had not made an application.

34.	Reg 6(1) is however concerned with discrimination in respect of access to employment.  Its reach is not unlimited.  It applies where an employer has employment to offer, and is making arrangements for determining to whom he should offer employment (reg 6(1)(a)), offering employment on particular terms (reg 6(1)(b)), or refusing to offer or deliberately not offering it to a particular person or category of persons (reg 6(1)(c)).  Generally speaking, therefore, it applies where an employer is recruiting.

35.	This points to the first difficulty in Mr Padgett’s case.  There was, on the face of it, nothing to indicate that the Tate had employment to offer.  He had apparently written a speculative letter with a proposal which the Tate had rejected.  Mr Padgett’s answer was that the Tate had a “rolling open tender programme” which amounted to an invitation to work in employment or at least apply for employment.

36.	There is to our mind a distinction between having employment to offer, on the one hand, and being prepared on the other hand to listen to a proposal which, if accepted, may mature into an offer of employment.  Reg 6(1) applies where an employer has employment to offer.  It does not apply merely because an employer is prepared to entertain a proposal for some new piece of work which (if he accepts the proposal) might then lead to an offer of employment.

37.	An example may assist.  If a theatre production company decides to put on a specific musical, and for that purpose carries out auditions for the parts, it has employment to offer and is making arrangements for deciding to whom it will offer the employment.  But if a theatre production company is open to new ideas, and is approached by an actor or group of actors with a proposed musical or play, the mere fact that it is prepared to consider the proposal, or may even have encouraged such proposals, does not mean it has employment to offer or is making arrangements for offering the employment.

38.	In this case the most Mr Padgett could say was that the Tate was prepared to consider proposals such as his.  He relied (as we understood his submission on appeal, more by way of analogy than direct application) on the acquisitions and exhibition policies.  As the Tribunal rightly say, those policies are at best a limited encouragement to artists to submit work or put forward proposals.  Mr Padgett came nowhere near establishing the case he put, which was that the Tate had a rolling open invitation to tender which amounted to issuing to artists in general or performance artists in particular a general invitation to work or apply for work.   The Tribunal rejected his case on this point in paragraph 39 of its reasons, and to our mind it was plainly correct to do so.  Willingness to listen to a proposal, or even encouragement to someone to put forward a proposal, does not establish that a person has work to offer for the purpose of reg 6(1).

39.	We turn to the second difficulty in Mr Padgett’s case, which exists quite independently of the first.    As we have said, Mr Padgett was not applying for a specific job which Tate had available.  He was putting forward his own proposal.   Tate cannot be said to have refused to offer him employment or deliberately not offered him employment unless the proposal which they turned down was unequivocally a proposal for employment.  By virtue of the extended definition in reg 2(3) this would include a proposal for a contract to work personally.

40.	It is not necessary for the purposes of this appeal to analyse the authorities on what amounts to a contract to work personally.  It is sufficient to observe that, in the discrimination context, a contract is a contract to work personally if it is a contract under which one party undertakes an obligation personally to execute work and labour and that is the dominant purpose of the contract: see Mirror Group Newspapers at paragraphs 13 and 36.

41.	In this case, if Mr Padgett’s sole proposal had been to undertake a performance at the Tate it might have been possible to draw the conclusion that his proposal was unequivocally a proposal for a contract to execute work personally, and that this was the dominant purpose of the contract, although ultimately matters of that kind are generally matters of fact for the Tribunal.

42.	However, Mr Padgett’s proposal involved far more than this.  It involved the construction, from sugar cubes, of a substantial edifice – half the size of a building.   The concept was, we think, an arresting one which says much for Mr Padgett’s sense of humour and ingenuity.  But the execution of the concept involved copying a building which already existed and assembling together a phenomenal number of sugar cubes.   The proposal does not commit Mr Padgett to assembling the cubes together himself, and there is not the slightest reason why the Tate should have thought that it did.   The concept could have been realised in a number of different ways.

43.	In his argument before us Mr Padgett sought to say that the performance was the key element of the proposal.  We do not think the Tribunal was obliged to take this view, and we do not take it ourselves.  Mr Padgett wrote that “a performance and talk around the work will also occur”.  He gave some details of the work itself, but no details at all of the performance.

44.	Given the overall nature of the proposal it seems to us quite impossible to say that the proposal was unequivocally for a contract the dominant purpose of which was for Mr Padgett to execute the work personally.

45.	We further agree with the Tribunal when it says that the proposal was in the nature of an inquiry about work, requiring further discussion, rather than a positive offer to undertake a contract.  

46.	Although we have expressed our conclusions in our own words, ultimately the question for the Appeal Tribunal is whether the Tribunal below has erred in law.  We see no error of law in the Tribunal’s reasoning or conclusion.  We think the Tribunal’s conclusion was plainly right.

47.	It follows that both appeals will be dismissed.