England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
EAT/0404/2003/MAA

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th July 2004

Lord Justice Wall:

1. The Appellant, Mr. V.M.S. Bruce, seeks permission to appeal from a decision by His Honour Judge McMullen QC, sitting alone, in the Employment Appeal Tribunal (the EAT) promulgated on 19 November 2003. On the same day, the judge refused Mr. Bruce permission to appeal to this court. On 26 May 2004, I refused Mr. Bruce's renewed permission application on paper. On 8 July 2004 Mr. Bruce orally renewed the application. Due to his disability, the application was conducted in court, but over the telephone. Having heard Mr. Bruce, I advised him that I would give my decision in writing, which I now do.
2. In reconsidering my initial written refusal of permission, I have re-read the papers and taken into account both Mr. Bruce's oral submissions over the telephone, together with additional written material not before me on 8 July. These include the following: (1) a letter from Mr. Bruce dated 29 May 2004 but not in my papers when I heard the application on 8 July, and (2) the recent decision of the House of Lords in Archibald v Fife Council [2004] UKHL 32.
3. The underlying decision under appeal is that of the Regional Chairman of Employment Tribunals, Mr. B.J. Doyle also sitting alone in Manchester on 7 February 2003. Mr. Doyle's decision was to strike out part of one and the whole of the second of two originating applications brought by Mr. Bruce. I am only concerned with the first of these, since Judge McMullen QC, as part of the order promulgated on 19 December 2003 allowed Mr. Bruce's appeal against Mr. Doyle's decision to strike out the second originating application to proceed to a full hearing in the EAT. That appeal has been determined by Mr Justice Rimer.
4. The part of Mr. Doyle's decision with which I am concerned is in the following terms: -

The first originating application is ordered to be struck out or amended in part only in accordance with rule 15(2)(c) of the Employment Tribunals Rules of Procedure 2001. The applicant may not rely upon his complaint of disability discrimination by reference to sections 5(2) and 6 of the Disability Discrimination Act 1995, but may rely upon his complaint of disability discrimination by reference to sections 5(1) and 55 of the Disability Discrimination Act 1995.

5. Paragraph 15(2)(c) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2001 empowers a Tribunal, at any stage of the proceedings, to order that the whole or part of an originating application be amended or struck out on the grounds that it is "scandalous, misconceived or vexatious". The word relied on by the Respondents in the current proceedings is "misconceived".

The relevant statutory provisions

6. The relevant provisions of the Disability Discrimination Act 1995 (DDA 1995) are as follows. I begin with section 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) in the terms on which he offers that person employment; or

(c) by refusing to offer, or deliberately not offering, him employment.

7. The relevant part of DDA 1995 section 5, which defines discrimination reads:

(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.

8. The relevant part of DDA 1995, section 6, which relate to the duty of employers to make adjustments reads:

(1) 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.

(2) Subsection (1)(a) applies only in relation to—

(a) arrangements for determining to whom employment should be offered;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

Section 6(3) sets out a number of examples of steps which an employer may have to take in relation to a disabled person in order to comply with DDA 1995, section 6(1), which include at (b) allocating some of the disabled person's duties to another person. Sub-section (4) identifies matters to which regard must be had in determining whether it is reasonable for an employer to have to take a particular step.

9. Finally, the relevant part of DDA 1995 section 55, which defines victimisation reads

(1) For the purposes of Part II, a person ("A") discriminates against another person ("B") if—

(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's; and

(b) he does so for a reason mentioned in subsection (2).

(2) The reasons are that—

(a) B has—

(i) brought proceedings against A or any other person under this Act;

The facts

10. I take these from Judge McMullen's judgment. Mr. Bruce is a solicitor, admitted in 1997. He is also disabled, and has been in a wheel chair since childhood. He applied for an advertised post with the second Respondents, a well-known firm of solicitors. He had previously brought proceedings against them and, as a consequence, they had agreed to notify him about vacancies. On 24 September 1999 he was informed that a vacancy existed in the range of 0-2 years post qualification. When asked for a job or personal specification, the Second Respondents replied that it was not their practice to draw up a detailed job or personal specification, and that they were looking to recruit an individual "who is 0-1 years qualified and who has specialised in employment law since qualification, or who has a desire to specialise if he / she is a newly qualified solicitor."
11. Mr. Bruce was interviewed, but not selected. The reasons, which the Second Respondent gave, were that he did not have experience and expertise of corporate employment support work, TUPE and other areas of employment law. He did not answer technical questions correctly. By contrast, the successful candidate had significant experience of this type of work.
12. Judge McMullen summarises the rival contentions in these words: -

It is the appellant's case that an adjustment should have been made in his favour to overcome his lack of such experience because the Respondent is a substantial employer and was able to implement various adjustments. It is contended by the Respondent that at interview the Applicant accepted he did not have knowledge of TUPE. Although the Applicant filed a Reply to the Respondent's Notice of Appearance in the second Originating Application (victimisation) none was filed in the first case. It is implicit in the claim the Appellant makes that he did not meet the criteria, for he asserts they disadvantaged him.

The decision of the EAT in Bruce v Cavalier and Thompsons [ EAT/1293/00 ](Thompsons)

13. Mr. Bruce had previously applied for a post with Messrs Thompsons, another well-known firm of solicitors acting largely for Trade Unions and their members. They had advertised for a discrimination lawyer, to conduct sex, race and disability discrimination cases for applicants, and to advise on a range of employment law issues. The advertisement stated that the candidate "will need to show experience of conducting similar cases and will either be a solicitor with at least 2 years' post qualification experience or a lawyer with equivalent experience".
14. Mr. Bruce was not successful. In this instance he was not interviewed. The application form sent to him identified 9 essential requirements, and four desirable requirements. His application was rejected without an interview because the two members of Thompsons assessing candidates' application forms excluded from the short list of candidates any candidate who did not meet all nine essential criteria. None of the nine criteria had anything directly to do with Mr. Bruce's disability – or, to put the matter another way a person with Mr. Bruce's disability could have fulfilled them: it just so happened that he did not. One of the assessors thought he met or partially met 7 of the criteria; the other thought he had met 5. To give an example on which they were agreed: both thought that Mr. Bruce had not met criterion 4: "understanding a trade union client priorities and industrial context".
15. In rejecting Mr. Bruce's claim for discrimination under DDA 1995, the Tribunal followed a decision of the EAT in Morse v Wiltshire County Council [1998] IRLR 352, directing itself that it was required to go through a number of steps when considering an allegation of failure to comply with the duty under DDA section 6. It further directed itself that only if the employer had failed to comply with its section 6 duty should the Tribunal then go on to consider the question of justification under section 5(4).
16. Mr. Bruce argued that this was the wrong approach. All that was required for a duty to arise under section 6(1) was the existence of the disability identified in the sub-section, which put the disabled person at a disadvantage. Thus, he argued, the Respondents ought to have amended some of the criteria so as to enable him to be short-listed.
17. The Employment Tribunal had found in Thompsons that none of the essential criteria constituted an obstacle for a disabled person such as the Respondent. In their extended reasons they referred to a short-listed candidate who had obtained his understanding of Trade Union priorities and industrial context through academic study. Similarly, Mr. Bruce's lack of experience in employment law, the Employment Tribunal found, was not because of an obstacle, which he faced as a disabled person.
18. On DDA 1996 section 6(4) the Tribunal concluded that the Respondents were looking for an experienced lawyer to start acting straightaway in complicated matters in the context of the firm's clientele objects, and that in those circumstances it would not have been practical for the Respondents to have made adjustments. The two selectors had considered and rejected the possibility of making an adjustment for Mr. Bruce. The Tribunal accordingly dismissed his claim. The EAT rejected a submission from Mr. Bruce that the failure to make the adjustment he contended for was an error of law and, accordingly, dismissed Mr. Bruce's appeal.

The Chairman's decision in the instant case

19. The Chairman accepted the argument advanced by the Respondents that Mr. Bruce was really attempting to re-litigate against them the interpretation of DDA 1995 which he had advanced against Mr. Cavalier and Thompsons in the previous proceedings described in paragraph 13 to 18 of this judgment. His essential reasoning is contained in paragraphs 5 and 6 of his extended reasons:

5. The applicant's case in respect of section 5(2) and 6 of DDA 1995 is that the respondents should have made reasonable adjustments to the selection criteria, which they used either to determine who should be appointed to the vacant post or to determine that the applicant should not be so appointed. He does not argue that any other reasonable adjustments should have been made to any other arrangements for determining to whom employment should be offered or any physical features of premises (see section 6(1) and (2)). The contention that reasonable adjustments should have been made to the selection criteria (to overcome his lack of knowledge or experience) is the very point which was made in Thompsons and where the Tribunal's rejection of that argument in law was held by the EAT not to involve an error of law. Although in the Thompsons case the applicant had been rejected without interview, and in the present case he was rejected after interview, the earlier authority is not properly distinguishable. This Tribunal is bound by it.

6. However, discrimination cases are notoriously fact sensitive. The Tribunal should be slow to strike out a discrimination claim or part of one unless it is satisfied that it is misconceived (in the sense that it has no reasonable prospect of success). There is no proper basis upon which the whole of the first originating application may be struck out. The allegation that the applicant was less favourably treated in the recruitment and selection process for a reason related to his disability should be tested in evidence, particularly as the pleadings and the interlocutory documents reveal that this is a case where primary findings of fact, if made, may call for an explanation from the respondent or risk an adverse inference being drawn.

7. Nevertheless, the applicant's claim in respect of reasonable adjustment of the section criteria is not well founded in law as Thompsons has established. It is misconceived and has no reasonable prospect of success.

20. That reasoning was upheld by Judge McMullen on appeal. He took the view that there was no difference in principle between the instant case and Thompsons. He said: -

29. The distinction, which the Applicant argues, for is based upon there being in Thompsons specified criteria made known in advance, whereas in the instant case, this was the subject of an application at interview. I agree that that makes factual determinations rather easier but it does not destroy the principle. As a matter of law the decision in Thompsons was binding on the Chairman. I would, as matter of practice, follow a judgment of a three-member EAT on a question of law unless I were convinced that it was wholly wrong. I consider the Thompsons case was correctly decided and so the Chairman did not err by applying it. The instant case is on all fours with the reasoning in the Thompsons case and I do not accept the submission that its application is dependent upon finding an identical set of facts. The reasons shine through and are applicable in similar but not identical subsequent cases. That is the doctrine of precedent.

30 The Chairman was at pains to point out that discrimination cases are notoriously fact-sensitive and that is why he allowed part of the case to go forward. In the light of Thompson it was not arguable as a matter of law that there was a breach of section 5(2) when a person who was at a disadvantage in meeting the criteria required by the Respondent of having expertise of corporate employment support work and knowledge of TUPE was disabled.

31. In those circumstances it is not necessary for me to consider the wider aspects of the Applicant's submissions. I note that the Applicant contends … that the Chairman did not deal with what is essentially an argument of the Respondent. It is that there must be a causal connection between the disability and the adjustment for the section 5 duty to exist. But that can only be in the Applicant's favour. If this were the Respondent's defence, the Chairman did not regard it as fatal to the Applicant's case. Nor do I consider it necessary for the Chairman to have decided that the issue in this appeal should be the subject of a full hearing. In discrimination cases, that is often useful but I do not consider the Respondent should be put to that procedure if there is a valid basis for a strike out application.

Mr. Bruce's submissions

21. Although Mr. Bruce advances twelve grounds of appeal in his appellant's notice, it seems to me that the kernel of his case, and the point to which he returns in his written submissions, is contained in grounds [7] and [8], which read: -

[7] The Respondents will argue that there must be a causal connection between the disability and the adjudication before a duty exists. This Appellant disputes this interpretation of section 6. The EAT in Thompsons did not address this issue. The Chairman's decision ignored this legal issue and therefore the Chairman erred in law by failing to state how he had decided this issue should be construed since it was clearly raised within the Appellant's written submissions. It is submitted that the decision is fundamentally flawed since the Chairman has failed to permit a full Tribunal to consider the issue of what adjustments could and should have been made to the selection process or working conditions.

[8] (The Chairman) erred by failing to consider and decide the legal issue raised by the Appellant – whether there has to be a causal connection between the arrangement which presented a substantial disadvantage and my disability – which issue the EAT in Thompsons judgment failed to address. This is a fundamental issue which was raised in written submissions but which was ignored within the decision: "the causal connection issue".

22. In his written argument in support of his application for permission to appeal to this court, Mr. Bruce summarises the legal issues as three points. The first is the causal connection issue. The second is the question: "must there be a comparator?" and the third is whether or not it is "just" to use the Thompson decision in relation to different factual issues to prevent Mr. Bruce from ever being able to use the provisions of DDA section 6 to challenge less favourable treatment which he suffers. Once again, it seem to me that the kernel of this argument is the causal connection issue, although Mr. Bruce also argues (1) that the Chairman was wrong to assume that the claim for adjustments was limited to the selection criteria, and (2) that the existence or otherwise of a section 6 duty is a fact sensitive matter and dependent on the facts of each individual case.
23. In paragraphs 14.8 and 14.9 of the written submissions Mr. Bruce develops his argument for a wide definition of "adjustment", an argument which he seeks to buttress with a citation from the debate on the committee stage of the Bill in Hansard. In paragraph 16 of the submissions, Mr. Bruce once again emphasises his main points: (1) that to impose the concept of the direct causal connection is a distortion of the Statute: (2) the employer is required to make "reasonable adjustments"; and (3) what constitute such adjustments is an issue of fact to be decided by a full Tribunal on evidence; Thompsons was decided on different facts.
24. In his further written submissions dated 6 July, Mr. Bruce takes issue with my written refusal of permission, and in the letter to the office dated 28 May 2004 which was not in my papers on the oral renewed application, he invites me to consider discrimination both in the wider context of my own career and of a recent experience of his own when travelling by train. He also criticises my refusal of permission by reference to my failure to consider the EAT case of Mid-Staffordshire General Hospitals NHS Trust v Cambridge (Mid-Staffordshire) [2003] IRLR 566. I therefore propose to look at this case and at Archibald v Fife Council before concluding with my reasons.

Mid-Staffordshire

25. Mr. Bruce cites Mid-Staffordshire for the proposition that "there is a pre-condition that there must be an assessment by an employer of the "disadvantages" before section 6 adjustment steps can be contemplated." I do not think this case advances M. Bruce's argument. Mrs. Cambridge was employed by Mid-Staffordshire when she became ill and then disabled. The Tribunal held that there was a duty on her employer to make reasonable adjustments, and that such a duty included taking such steps as would enable them to decide what steps would be reasonable to prevent her from being at a disadvantage. Since the employers had failed to seek, obtain or act on a full and proper assessment of Mrs Cambridge's position, they had failed to comply with their duty to make reasonable adjustments. This, in my judgment, is a wholly different situation from that in which Mr. Bruce and the Second Respondents found themselves when Mr. Bruce made his application for employment.

Archibald v Fife Council

26. This case also involves making adjustments in the context of an employee who becomes disabled whilst in the employer's employment. Mrs. Archibald was a road sweeper who was dismissed after she became unable, by reason of a disability acquired whilst she was employed, to continue with manual labour. The case turned on the interpretation of DDA 1995 section 6(7) which reads:

Subject to the provisions of this section, nothing in the Part is to be taken to require an employer to treat a disabled person more favourably that he treats or would treat others.

27. The Local Government and Housing Act 1989 imposed on Fife Council a policy of requiring competitive interviews for all local authority posts. The question for the Tribunal (which it had not considered) was whether or not that requirement could be dispensed with in Mrs. Archibald's case as part of the reasonable adjustment required to remove the disadvantage which she was under due to her disability. The House of Lords held that the performance of the duty to make reasonable adjustments may require the employer, when making adjustments, to treat a disabled person who is in this position more favourably, to remove the disadvantage which is attributable to the disability.
28. Whilst interesting, I do not think this case addresses the issue raised by the instant appeal. There was no doubt that Mrs. Archibald was at a substantial disadvantage in relation to her employment as a result of her disability: the question was how the Council could comply with their section 6 duty, and whether they could overcome the disadvantage by transferring her into alternative employment without requiring her to compete for a position. Once again, I do not think this case assists Mr. Bruce.

Discussion and Conclusion

29. Although I have dealt with this matter at some length, the point is, I think, a short one. Is it arguable that the Respondents discriminated against Mr. Bruce (a) by failing to comply with a section 6 duty imposed on them in relation to him and (b) by being unable to show that their failure to comply with the duty was justified?
30. I can see no basis upon which the Respondents could properly be expected to make reasonable adjustments to the selection criteria to accommodate those elements in which Mr. Bruce did not match them. Whether or not there needs to be a direct causal connection between the disability and the criteria, the simple fact of the matter remains that the elements of the selection criteria of which Mr. Bruce complains had nothing to do with his disability. To take but one example, the Respondents wanted a lawyer who knew about TUPE. If, of two candidates, one who is disabled does not know about TUPE and the other one does, it does not seem to me that a duty arises under section 6 to make an adjustment to the criteria. There is absolutely no reason why a disabled candidate should not know about TUPE. The condition which the employer is imposing has nothing to do with an applicant's disability, and is simply is not relevant to it.
31. I fully understand Mr. Bruce's argument that his disability has prevented him exploring and developing aspects of a career - indeed aspects of the law – more readily open to the able bodied – as his analysis of my own career demonstrates. That is, of course, a matter for sympathy. But I simply do not think that the generalised disadvantage, which Mr. Bruce asserts, can be translated into the specific framework of the Act without the particular situation of the disabled person meeting the criteria, which the Act lays down. The fact of the matter is that Mr. Bruce has qualified as a solicitor, and if he was refused a post as a solicitor for a reason which properly fell within DDA section 5(1), 5(2) or (6) he would have a remedy. Indeed, the section 5(1) argument remains open to him in this case. But if two solicitors, one of whom is disabled, compete for one job, and if the able-bodied solicitor fulfils the specified criteria for the job, none of which relates to any aspect of the first's disability, I find it difficult to see how that situation fits within DDA sections 5(2) and 6.
32. In my judgment, therefore, the EAT was right in Thompsons to reject Mr. Bruce's argument that the selection criteria discriminated against him. I can see no difference between that situation and the argument, which Mr. Bruce is advancing on the selection criteria in the instant case. It follows in my judgment that both the Chairman and Judge McMullen were right to hold that Mr. Bruce's argument on this part of the case was misconceived. I am therefore satisfied that an appeal against Judge McMullen's decision would stand no reasonable prospect of success.
33. The application for permission to appeal is, accordingly, refused.
34. I understand that Mr. Bruce may wish to take this point further. My understanding, however, is that the refusal of permission in this court is the end of the road. I formally refuse Mr. Bruce permission to appeal to the House of Lords.