Title: Appeal No.
Author: Jeremy
Last saved by: joe.ury
Company: Employment Tribunal Service

Appeal No.UKEAT/0083/04/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 October 2004

Before
HIS HONOUR JUDGE McMULLEN QC
MR P M SMITH
MR B M WARMAN

MR P M PANTRY	APPELLANT

THE HOME OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant

MR P WALLINGTON
(of Counsel)
Instructed by:
Messrs Chadwick Lawrence Solicitors
29/31 Commercial Street
Morley 
Leeds  LS27 8HX

For the Respondent

MR G BRANCHFLOWER
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London  SW1 9JS

SUMMARY

Disability Discrimination

Employment Tribunal’s Decision that the Respondent did not discriminate against him on grounds relating to his disability set aside.  Employment Tribunal gave no account of the law and applying Section 4 (1) (a) of the Disability Discrimination Act 1995 the Employment Appeal Tribunal decided in the Applicant’s favour that the Respondent unlawfully discriminated in the arrangement it made for recruitment of officers.  The Employment Tribunal’s decision on Section 4 (1) (c) showed the Applicant raised a prima facie case and the Employment Tribunal failed to deal with any explanation.  Remitted to the Employment Tribunal for written submissions on this.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about disability discrimination in the arrangements made for appointment to a public position.  The judgment represents the views of all three members who pre-read the relevant papers.  We will refer the parties as Applicant and Respondent.

Introduction

2.	It is an appeal by the Applicant in those proceedings against a Decision of an Employment Tribunal sitting at Leeds, Chairman Mr C T Grazin, registered with Extended Reasons on 7 November 2003 after a two day hearing.  The Applicant was represented there by a solicitor and today by Mr Peter Wallington of counsel.  The Respondent was represented in both places by Mr George Branchflower of counsel.  The Applicant claimed a breach of contract but, more particularly, that he had been discriminated against on the grounds that he was disabled, in the failure by the Respondent to appoint him to a position.  The Respondent denied the contentions. 

The Issues

3.	The essential issue before the Employment Tribunal was therefore to decide the Applicant’s claims under the Disability Discrimination Act 1995.  The Tribunal decided, in what it regarded as a most unusual case, that the Applicant’s complaint should be dismissed.  The Applicant appealed against that Decision.  Directions sending this to a preliminary hearing were given by a Judge on the sift, and at that preliminary hearing, Mr Justice Silber and members ordered that the appeal should be sent to a full hearing, having heard representations by Mr Wallington, then appearing under the aegis of ELAAS.  In due course further directions were given by Burton P.  The appeal is now heard under what have been described as the substituted grounds of appeal.

The Legislation

4.	The relevant provisions of the legislation are Section 4 (1) of the Disability Discrimination Act 1995, which applies to persons who are not yet in an employment relationship:

“4. - (1) It is unlawful for an employer to discriminate against a disabled person- 
(a)	in the arrangements which he makes for the purpose of determining to whom he should offer employment; 
(b)	…: or 
(c)	by refusing to offer, or deliberately not offering, him employment.”

5.	Discrimination is defined by Sections 5 (1) and 5 (2):

“5. - (1)  For the purposes of this Part, an employer discriminates against a disabled person if-
(a)	for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and 
	(b)	he cannot show that the treatment in question is justified. 
   (2)  For the purposes of this Part, an employer also discriminates against a disabled person if- 
(a)	he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and 
(b)	he cannot show that his failure to comply with that duty is justified.”

6.	The reference to a “Section 6 duty” is to what is conveniently described as the duty of an employer to make reasonable adjustments.  So far as is relevant to these proceedings, Section 6 (1) provides as follows:

“Where- 
(a)	any arrangements made by or on behalf of an employer, or 
(b)	any physical feature of premises occupied by the employer, 
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.”

7.	The Employment Tribunal did not mention the Act by name, it did not cite the sections it was required to examine, nor the Guidance, any of the Regulations or the Code issued under the Act, nor any authority.  Its sum total of legal directions is contained in the following passage:

“This was an unusual complaint under the 1995 Act, in that there was a substantial amount of concessions on the part of the Respondent.  Firstly, it was conceded, properly, that the Applicant is a disabled person.  He has a hearing impairment, the detailed circumstances of which are not in any way material to our decision.  Secondly, it was conceded that the Applicant had suffered less favourable treatment that those other persons who were appointed to substantive positions by the Respondent in the recruitment process to which this complaint relates.  The only issue for the Tribunal was whether that admitted less favourable treatment was for a reason relating to the Applicant’s disability.  The Applicant contended that the less favourable treatment was for such a reason.  The Respondent contended that it was not.  The issue was purely one of causation.”

As will become apparent, from that jejune approach a number of errors have occurred. One which is glaring was not advanced by Mr Wallington after we pointed it out since his other points succeed, and in fairness he did not seek to open it. From Mr Branchflower’s initial response, it appears to us to be unanswerable.  Without hearing any argument on it, and it is not necessary for our decision, we would be inclined to hold that the definition of the issue as “purely one of causation” is quite wrong. In Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, 1072 para. 29 Lord Nicholls said this, in terms which can be read across from the Race Relations Act 1976 to the DDA:

“29	Contrary to views sometimes stated, the third ingredient ("by reason that") does not raise a question of causation as that expression is usually understood.  Causation is a slippery word, but normally it is used to describe a legal exercise.  From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening.  Sometimes the court may look for the "operative" cause, or the "effective" cause.  Sometimes it may apply a "but for" approach.  For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] ICR 877, 884-885, a causation exercise of this type is not required either by section l (l) (a) or section 2.  The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did?  What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test.  Causation is a legal conclusion.  The reason why a person acted as he did is a question of fact.”

The facts

8.	The Applicant submitted an application for a post for an administrative officer position in the Immigration and Nationality Department (IND) where a recruitment drive was under way in Leeds.  He also submitted a declaration relating to his health which revealed he has a hearing impairment.  In due course it was conceded by the Respondent, after notification that a preliminary point would be taken, that the Applicant is disabled within the meaning of Section 1 of the Act.  

9.	The Applicant was interviewed on 11 December 2002.  He passed with a BC grade, which means “clearly above the acceptable level”; he was so informed on 12 December 2002.  The Respondent then wrote to the Applicant’s nominated referees and, it seems, application to the relevant security department in respect of other successful candidates was made on that day, too.  It of course is necessary for this position that there be security clearance, and that was done in each case.  The Applicant’s referees wrote back on 9 January and 13 or 14 January 2003.  On 14 January security clearance was sought for the Applicant; additional information was given by him.  On 24 January 2003 the last offer was made to those successful interviewees which was accepted on 27 January 2003.  By the end of that month a recruitment freeze had been imposed on the Respondent, so it could not recruit any others.

10.	Security clearance was achieved for the Applicant on or about 4 or 5 February 2003 but, because of the freeze, he was not offered the position but simply placed on the reserve list.  On that date he was told that health issues had been raised in his case.  The Applicant made a complaint to the Employment Tribunal.  

11.	The findings of the Tribunal, rather as a sequel to its Decision, are illustrative of the issues in this case, for the Tribunal says this:

“22.	Although the Respondent did not follow its own procedures; although it made numerous mistakes in this matter, including failing to notice that the reference from Mr Khan was an employer's reference - instead, it was treated as a I personal reference because Mrs Khan had been named as a personal referee - we find without any difficulty and as a matter of fact that the reason for the less favourable treatment was that there was a delay on the part of the two referees selected by the Respondent in their returning the reference documents, in consequence of which there was a delay in requesting security clearance from DSU.  There was a subsequent delay there, which took that security process beyond 24 January 2003, on which date the last of the vacancies was filled.  None of those matters are in any way related to the Applicant’s admitted disability.  Accordingly, as a finding of fact, the Applicant was not treated any less favourably for a reason relating to his disability an his complaint must be dismissed.

23.	We would normally say no more but it did become apparent, during the course of this hearing, that notwithstanding the precise sequence of events in respect of this Applicant, the recruitment methods used by the Respondent are substantially discriminatory against disabled persons.  That much was effectively admitted by Mr Branchflower and Miss Langridge of the Treasury Solicitor's Office.  We make these comments in the hope that they will be considered by those within the Home Office who are responsible for recruitment.  It is obviously of the greatest importance that a body such as the Home Office operates policies which are entirely free of any discrimination.  We regret that the present policy does not comply with that description. 

24.	By way of explanation, it is clear that those candidates whose health declaration forms indicate a potential problem are separated from those others who have no such problem at the Respondents' Croydon Office.  In the case of the Applicant, we know that his health declaration was marked "referral."  That is a reference to the fact that he would in due course (again our italics) be referred to BMI.  That particular referral would only be made once the rest of the process had been completed.  Accordingly, in the case of the Applicant, and assuming that the particular facts of this process had not ensured that he was placed on the reserve list, the BMI reference would have been taken up only after the personal and character references and the security clearance had been received.  It is the nature of the recruitment process operated by the Respondent that encourages over-subscription.  It follows that, even if the provision of references and clearances takes exactly the same length of time for all candidates, those who can then be offered a job without the need for a medical referral will be appointed on the "first come, first served" basis which the Respondent operates.  Those candidates, such as the Applicant, who are shown on the spreadsheet as "health issues" can only be offered a job once that health screening has been completed.  We heard no evidence as to how long that would be expected to take but, from experience in the Tribunals, it would not be unusual that a period of a month or more would be required whilst medical records were obtained and, if necessary, a medical appointment was arranged and took place.  That is clearly a seriously discriminatory practice against persons suffering from a disability.” 
12.	It concluded as follows:

“26. In the particular factual circumstances of this matter, and for that reason only, the Respondent has escaped a finding of unlawful discrimination.  Had those particular issues, on the facts of this matter, not applied and the Applicant had failed to obtain a substantive post only because the necessary health check remained to be carried out, we would have no hesitation in saying that he had been the subject of serious unlawful discrimination.”

13.	The question is: why, notwithstanding those condemnations of the Respondent’s system, the Applicant failed in his case.  The reasoning for the Tribunal is difficult to find within these reasons because, as we have indicated, there was no clear direction on what sections of the Act applied in this case and what therefore would be the correct application of those provisions to the facts as found.  The Tribunal decided that the Applicant had not been discriminated against principally because, we think, the Tribunal disengaged the elements relating to his health issues from those relating to the security clearance issues, and the Tribunal failed to analyse correctly the reasoning, if there were any, for the delays in this case.  

The Applicant’s submissions

14.	The Applicant contended that the Tribunal was in error in two respects.  First, the arrangements made by the Respondent for the recruitment of administrative officers indicated discrimination against a disabled person.  There could be no doubt that the system which was applied in this recruitment exercise, differing as it did from the system laid down previously, fell within the context of arrangements within Section 4 (1) (a).  It was contended that the placing of the Applicant at the end of a selection process by reason of the necessity for his health issues to be resolved, constituted discrimination on the ground that he was disabled.  

15.	Secondly, it was contended that the Tribunal had failed to give an explanation of the reason why there was no discrimination in the failure to obtain the security clearance in a timely way.  The stark statistics of the recruitment exercise indicated that the reason why all of the persons raising health issues were kept to the end must relate, if they were disabled, to their disability.  

16.	Reference was made to the Tribunal’s finding about a spreadsheet. It indicated, as Mr Wallington put it, that there was a 100% correlation: none of the persons who succeeded at interview and who demonstrated a health issue was allocated a start date, all of the persons who who had not raised a health issue had been so allocated, with the exception of two who failed for other reasons.  Thus it is contended that that factual situation constitutes a case for which the Respondent must give a reason, which is not a reason related to disability; see King v The Great Britain China Centre [1992] ICR 516 (CA).  

17.	 It was contended that there had been numerous mistakes relating to the Applicant’s application, including, as the Tribunal found, the failure to recognise a reference given by Mr Khan as an employer reference rather than as a personal reference, all of which required an explanation.

The Respondent’s submissions

18.	On behalf of the Respondent, it is accepted that discriminatory practices were in place at the time, but they did not touch upon the Applicant’s own case.  A new regime is in place following the criticisms and helpful comments of the Tribunal relating to the way in which recruitment must be conducted for the IND.  It was contended in relation to the claim under Section 4 (1) that the meaning of discrimination should be amended to include in Section 5 (1) (a) the addition of the word “would”, or alternatively for there to be a cross-reference in Section 6 to such an adaptation.  The issue before the EAT was one of simple construction, which could be resolved by the addition of that word.  

19.	Section 5 (1) did not apply, as Mr Branchflower put it, to a scenario where less-favourable treatment has not yet been reached.  The delay in this case was due to the absence of security clearance and posts were offered as and when the clearance was obtained on a first past the post basis.  

The legal principles

20.	The legal principles to be applied in this case appear to us to be as follows:

(1)	The Judgment of Neil LJ relating to direct discrimination and the drawing of inferences will always be relevant in a discrimination case and must be considered even if inferences are not to be drawn.

(2)	A Tribunal will not do its duty if it does not set out the applicable law and set out it reasons by reference to the applicable law.  If its reasons do not tell the parties clearly why they have won or lost, or fail to deal with an issue which was relevant before it, the Tribunal will err; see Meek v City of Birmingham District Council [1987] IRLR 250.

Conclusions

(a) The arrangements
21.	Applying those principles to the case we have decided that the Applicant’s submissions are correct and we prefer them to those of the Respondent.  We will deal first with the claim made under Section 4 (1) (a).  We bear in mind that there has been a dispute in this case about the legitimacy of raising a precise complaint at the EAT relating to Section 4; those issues have been resolved.  We have no doubt that the system by which recruitment to IND in Leeds was effective in the latter part of 2002 qualified as the “arrangements” within Section 4 (1) (a).  

22.	The first ground of contention is that the Tribunal failed to cite that section and thus fell into error for it failed to go in sequence through the required steps which are as follows:

	(1)	Was the Applicant disabled?
(2)	Did he suffer less favourable treatment than other candidates in the arrangements for selection?
	(3)	If so, was this for a reason related to his disability?
(4)	If that were so, was the treatment justified?

23.	The submission of Mr Wallington is soundly based upon the chronology.  There can be no doubt that the system held back a person with a health issue from immediate examination as to his references and his security checks.  The basis therefore on which the above questions can be answered is clear, it being accepted by concession that Applicant is disabled.  He suffered less favourable treatment in the arrangements than a person who did not have the condition, that is, who was not disabled in the way he was, for that comparator’s case went forward into the other checks, whereas medical material would not be obtained until there was satisfactory completion of those two other checks.  It follows that the answer to the third question must also be yes, since being a disabled person had held him back in that race to fill the first 25 positions.

24.	The question then is whether that treatment was justified and, there being no significant evidence about this, in our judgment the correct answer is that the Applicant was discriminated against unlawfully.  We see no substance in Mr Branchflower’s contention that we should read words into Section 5 or that Section 5 (1) should be inextricably linked to Section 6 in the same was as Section 5 (2) is.  Section 5 (2) gives the signpost to Section 6 expressly; that is not seen in Section 5 (1).  If Parliament had wished to connect Section 5 (1) to Section 6, it would have done so in the same way as it connected Section 5 (2).  In our Judgment the approach of the draftsman to this section would have been informed by experience of other the other anti-discrimination measures, the Sex Discrimination Act 1975 and the Race Relations Act 1976.  No definition has been put before us emerging from those statutes or from any of the jurisprudence under them. We accept Mr Wallington’s contention that a plain meaning can be given to someone who treats a person less favourably than he treated others. It is apt to describe the arrangements made by the Respondent for the recruitment of administrative officers which treated a person who is disabled less favourably than a person who was not.

25.	It follows that the appeal on this ground succeeds.  We were asked to substitute our Judgment for that of the Tribunal, since all of the material facts are available to us and there is simply the application of section 4 (1) (a).  We were not asked by Mr Branchflower to do anything other than that if we were against his client, and so we determine that the Applicant succeeds in his claim under Section 4 (1) (a).

(b) The appointment
26.	We turn then to the second ground.  This relates to the delay before the Respondent caused an enquiry to be made about the Applicant’s security clearance.  The evidence was that security checks and references were taken up at the same time, however there was a delay of a month in this case.  No explanation is readily exigible from the Decision.  The Tribunal decided that this matter was academic, but we accept the submission that the Tribunal did not appreciate that these two processes were simultaneous.  We have been shown the evidence relating to this and are satisfied that it was the practice in this recruitment round for security clearance and reference checks to be initiated at the same time. Why was there a delay in this case?  No explanation has been forthcoming which is of any substance.  

27.	The Applicant’s security clearance was sought only after references had been received.  In his case the sequence of events was receipt of references, then security checks, then consideration of health issues following medical examination.  The question relating to Section 4 (1) (c) is whether the Applicant could show that he had not been offered a position as an administrative officer.  We have been shown the evidence about how long it takes to get such clearance, apparently three days.  Thus by about 17 or at the very latest 24 January 2003 the Applicant should have been in a position where his references and his security clearance were in place and he would not then have been excluded from an offer employment before the quota of 25 was reached or the freeze set in.

28.	We are told by Mr Branchflower, having taken express instructions, that where health issues arise today (and the freeze had been lifted by the time of the Employment Tribunal hearing) a candidate so affected does not lose his or her opportunity to be employed, for the vacancy is kept open until the health issues have been resolved.  

29.	In our Judgment the Tribunal was bound in those circumstances to apply the test in King v The Great Britain China Centre (above) and to call for an explanation from the Respondent for these two apparent delays, that is from shortly after the interview until security clearance was sought and from that time until there was clearance on 4 or 5 February 2003.  There was, in our judgment, a prima facie case which called for the Respondent to justify it and the evidence for such justification was not forthcoming.  Again, had the Tribunal reminded itself of the legal provisions it was applying and just that one central authority it would, in our Judgment, have been able to resolve this matter satisfactorily.  

30.	We therefore will set aside the Decision. We declare that the Respondent unlawfully discriminated against the Applicant contrary to section 4 (1) (a). Having canvassed disposal options with Counsel, this case will have to go back to an Employment Tribunal for remedies.  We have decided to accede in part to Mr Wallington’s submission which has very practical benefits that, with the transcript and the order which we make, the Tribunal will be directed to consider written submissions from both parties, and will be directed to answer the question whether there has been a breach of Section 4 (1) (c) and if it decides to hear evidence on that that will be a matter for it.  If it considers that the evidence which it has enables it to answer that question, armed with the written submissions, then it will do so.  

31.	The third ground in this case was related to an application for review, but in the light of our judgment on the second ground, Mr Branchflower concedes that he will not put up any opposition. In accordance with the Practice Direction paragraph 15, it is necessary for us to say a word or two about this before allowing that appeal.  The circumstances were that the Applicant applied for a review.  The Chairman decided that there would be a review, holding that it was not a case in which there was no reasonable prospect of success.  Thus the review was conducted by the three-person Tribunal.  It failed to dislodge the original decision and Mr Branchflower made an application for costs.  A costs warning, at the initiative of the Tribunal Chairman, had been given to the Applicant and the Tribunal decided that he should pay £423, which included VAT.  

32.	We consider that this appeal can properly be allowed by consent, or at least without resistance. There is considerable force in Mr Wallington’s contention that, having passed the threshold of whether or not there was no reasonable prospect, it is inconsistent to award costs on the basis that the claim had no reasonable prospect.  It is not necessary to go into detail about that matter, for we have read the Skeleton Argument of Mr Wallington and there is no Skeleton Argument in response to it and we conclude that we should properly allow that ground of appeal as well.

33.	We would very much like to thank both Counsel for their helpful submissions to us today.  The directions we give are that submissions from the Applicant are to be lodged at the Employment Tribunal and served on the Respondent within 14 days from today; 14 days thereafter the Respondent to file and serve submissions; any further submissions to be filed and served within 7 days thereafter after which time it is closed.  This forms part of our order for disposing of this case.  It is then a matter for the Employment Tribunal to determine whether to have a hearing or to have a hearing and remedy hearing.

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UKEAT/0083/04/LA