United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BOOTH (Of Counsel) Mrs A J Parsonage Warrington Community Law Centre 64-66 Bewsey Street Warrington WA2 7JE
For the Respondents	MR H NORRIS (Solicitor)


 


JUDGE D PUGSLEY: This is a case that arises out of the dismissal of the Applicant's claim that he had been discriminated against on the grounds of his disability. The Applicant/Appellant is deaf and he applied for a post of joiner with the Respondent local authority. It is the Respondents' case that the successful candidates had wider experience in the required fields. The Appellant claimed that he was demonstrably as well qualified as - if not better qualified - than certain of the successful candidates.

The matter came before the Industrial Tribunal sitting in Liverpool and the decision was a majority one. After setting out the main terms of the Act and then dealing with the equal opportunities policy the Tribunal take up the account and deal with the matter in their decision at 7 (iii):

"From time to time, in relation to certain specific contracts, the need arises for additional temporary of short term staff. Such a need arose, in this case, in relation to a Housing Maintenance Contract. The contract was to commence on Monday 14 April 1997 and continue for 3 months and involved replacing UPVC windows, gutters, doors, gates and re-pointing brickwork. An advertisement was placed in the Warrington Guardian, a local newspaper, for tradesmen. There were 4 vacancies. Mr Pemberton, [the person responsible for the local authority] in his evidence, has given to the Tribunal an explanation of the procedure which is normally followed in relation to a contract of this kind. However, this particular contract had a degree of urgency and, in consequence, the usual process for filling posts could not have been completed in the time scale available. For that the reason, the job was advertised as it was. The advertisement itself was small and simply said: "Timer-served joiners required for maintenance contract. Telephone Sue McChrysal". A telephone number was given.

(iv) There was a good response to the advertisement, and the candidates were of good quality. In all, 21 people, including the applicant, were interviewed by Mr Pemberton. Mr Haill, Building Maintenance Supervisor was present throughout the interview but as an observer. The Tribunal is satisfied that interviews followed the same format and that candidates were informed of conditions of service, rates of pay, an explanation of the incentive scheme, holiday entitlement and sick pay. The applicant disagrees, however, and says that this information was not given to him. Mr Pemberton is adamant that it was. The Tribunal / the majority of the Tribunal / considered it more likely than not that such information was given.

(v) In relation to Mr Roberts interview the following additional arrangements were made to try to ensure that he would not be disadvantaged in his application. A qualified signer was allowed to be in attendance. Confirmation was sought that the lay out of the room was satisfactory. Mr Roberts was allocated 30 minutes for interview as opposed to the normal 15 minutes. It should also be mentioned that the respondent offered to pay the costs of the signer and any other related costs in connection with the interview. In the event, however, the signer was paid for through the PACT System, a Government incentive scheme. Mr Roberts stated the interview lasted for 15 minutes.

(vi) In choosing the 6 successful interviewees a requirement was imposed that, in order to reach that stage, applicants should have the City & Guilds Advance Craft Carpentry and Joinery level. The Tribunal has seen copies of the application forms of the successful candidates... and brief notes... made during the course of the interviews.

(vii) Mr Roberts presented himself as an intelligent and articulate and as not having, despite his disability, difficulty in communicating. His own evidence is that, on a day to day basis he usually manages to communicate without an interpreter, having good lip reading skills. However, on this occasion an interpreter was present. There is some conflict between the parties as to exactly what happened at the interview. Mr Roberts complains of the presence of the observer, Mr Haill. He was there because he had no previous experience of interviewing. Further, Mr Roberts says that he was not asked about receiving instructions from a supervisor. That he did not have the opportunity to explain how he normally communicated with hearing people. Also other matters of detail such as not having been given an explanation as to the procedure for ordering materials, on site, and not being asked whether he had any additional skills or previous local Government employment. Mr Pemberton, for his part, states that he explained to Mr Roberts the structure of the Council and the role of Direct Services, particularly the Technical Services Division. Also, the role of a joiner in the Building & Maintenance Division. With all candidates he states that he took details of name, address, date of birth etc. He agrees Mr Roberts furnished him with a copy of his CV to which he referred as Mr Roberts explained his experience to date. Finally, he did provide an opportunity to add anything further or ask any questions. He comments, "I tried to be positive throughout and allow Mr Roberts to express himself". Having considered these differing views of the meeting, the majority of the Tribunal accept that the meeting was properly and fairly conducted.

(viii) The Tribunal is in no doubt as to the applicant's capabilities and length of experience. Overall, the quality of all the applicants, on this particular occasion, was very good. The ultimate choice, however, rested upon Mr Pemberton's assessment, having applied his own professional knowledge and experience in relation to this particular contract. It is not for us to seek to impose our own view but it seems to the majority of the Tribunal that, looking at all the available information, the choice made is supported by the requirements for this particular task. Pure length of service, of course, on its own, is not determinative; there are other factors which have to be considered. The majority of the Tribunal is satisfied that there was no deliberate act, on the part of the respondent, not to employ the applicant.

Not having succeeded in his application Mr Roberts wrote to the Council and the Tribunal then sets out the letter that he received, which pointed out at that all the applications were of high quality and that they confirmed that they would be very happy to consider the applicant for any future vacancies.

The Tribunal then sets out the law, by reference to sections 4 and 5 of the Act, continuing in this vein at paragraph 9 of the decision:

"The Act does not outlaw discrimination against disabled persons as such nor does it prevent an employer from denying him employment opportunities where a person's disability prevents them from competing on merit. However, where a disabled person is otherwise the best candidate, the employer may not use a reason related to disability (such as, for example, the lack of hearing and speech in this case) as the basis for treating that person differently from other candidates. Mr Roberts' own view of the matter is clearly expressed in his evidence where he says:

'Given my extensive experience in the trade, relevant work with local authorities and my qualifications, I felt that they had discriminated against me as they had overlooked my qualifications etc. and just concentrated on [my] disability'.

Does the Tribunal accept, bearing those comments in mind, that the applicant has been less favourably treated in accordance with the definitions referred to above? The majority of the Tribunal does not do so, accepting and finding that the employer, taking into account all the known circumstances, did its best, and in any event sufficiently well, to be seen to have made reasonable adjustments in its arrangements so as to meet the applicant's disability. The majority of the Tribunal does not accept that the applicant was less favourably treated by reason of his disability. The dissenting member takes a different view, feeling that more should have been done than was done, at the interview, to meet the applicant's disability and that the respondent did not therefore act reasonably in accordance with Section 6."

We have had the benefit of having before us skeleton arguments both by the Respondent, who appears here by Mr Norris, and by the Appellant's Counsel, Mr Booth. We are also considerably indebted, if we may say so, to Mr Norris who had the experience of being at the Tribunal. Mr Norris has been very open, as one would expect of someone who works in the public sector and still has those hallowed values of public service. The reality, as Mr Norris has very openly accepted, is that there are matters in the decision which are hinted at but are not made explicit in the decision itself.

Mr Booth has concentrated our minds in the oral and written submissions of the skeleton argument. I hope it would not be unfair to Mr Booth's very considerable industry if we say, really, his submissions can be distilled to two submissions. His first submission is that, if you read through the decision, the Appellant is simply not told why he has lost. He cites the well-known case of Meek v City of Birmingham [1987] IRLR 250 as well as the later case of Wadman v Carpenter Farrer [1993] IRLR 374. What Mr Booth says is, if you read through that decision, does it tell Mr Roberts why it is that the Tribunal came to the conclusion that the employer had not discriminated against him on the grounds of disability?

We are bound to say that each and every one of once, reading through this decision, are unable to say, well, he was not selected for reason a, b or c. Looking at the bundle, as, of course, we have done, we can imagine arguments that may have been put but they do not figure in the decision. It may be, and, in fact, Mr Norris has hinted that it was, that Mr Pemberton did not really regard the deafness as an issue in relation to liaising with tenants.

There is no formulation in coherent manner of what Mr Pemberton's thought processes were. We get weary, in this Tribunal, of a counsel of perfection being suggested, and it being argued that Tribunals should make all sorts of subsidiary findings of fact. We would in no way wish to encourage what we consider the over-zealous attempt to argue what is undoubtedly a matter of fact and dress it up to make it masquerade as a matter of law. But here, we simply do not know what we would say to Mr Roberts as to why it is the Tribunal found that the Respondents did not discriminate on grounds of disability but, equally, we would not know, from this decision, what Mr Pemberton's reasons were. If I may say it is even-handed. There may well be good reasons but they simply do not become clear from this decision.

The second matter is this: when a piece of legislation such as the Disability Discrimination Act is passed many of us have a proper modesty as to how we are going to interpret it. There are real and substantial differences between disability discrimination and race and sex discrimination. At the risk of being trite, the circumstances of which it can be lawful to discriminate on grounds of race or sex are bound to be limited. Obvious examples: in theatrical productions it is lawful to discriminate. One does not need to have Othello played by a white man. Similarly, in such areas as cuisine and cooking it is perfectly lawful to have restrictions so that one has Indian waiters in a curry house. Certainly in areas of sex discrimination for reasons of decency there are certain circumstances in which there are genuine occupational requirements for one gender or the other. But in general terms, race or sex discrimination, except in such restricted categories to which we have adverted is morally offensive and it is unlawful.

The structure of the Race and Sex Discrimination Acts are in both cases the same. There is a distinction drawn between direct discrimination and indirect discrimination. Disability discrimination is totally different. It is obvious that, in certain circumstances, an employer would be acting in reckless disregard for the health and safety of employees if he did not discriminate. Someone suffering from one of the neurological conditions, which rendered them unstable, would obviously not be a person who, for his or her safety, you would employ in a foundry in close proximity to hot molten metal or, in many cases, because of the possible adverse impact on others.

Secondly, less favourable treatment is subject to the defence of justification. There is a positive duty to make arrangements to reduce the obstacles to the disabled to obtaining or retaining employment. There is also a very different exclusion clause for small employers. Yet, although there are these differences, there is still much to be gained by going back to the basic concepts which have been hammered out by the Courts in relation to race and sex discrimination and, in particular, the guidelines set out in King v Great Britain-China Centre, if we may respectfully add, are not only appropriate they are particularly and immediately apt in the case of disability discrimination. The hope that they would be regarded as definitive guidelines has perhaps reached fulfilment in that they have been described as the best guidance in Zafar v Glasgow City Council [1998] ICR 125 D, a decision of the House of Lords. Although the case concerns race discrimination it is equally applicable, in our view, to discrimination under the Disability Act as has, of course, it already has found to be under the sex discrimination legislation. The judgment of Neill LJ at p 528:

"It is for the Applicant who complains racial discrimination to make out his or her case but, if the Applicant does not prove the case on the balance of probabilities, he or she will fail.

ii) It is important to bear in mind it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In countless cases the discrimination will not be ill-intentioned but merely based on the assumption that he or she would not have fitted in.

iii) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inference it is just and equitable to draw in accord with section 65(2) of the Race Relations Act 1976 to an evasive or equivocal reply to a questionnaire.

iv) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination / a finding of a difference of race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that a discrimination was on racial grounds. This is not a matter of law but, as Mayal J put it in Noon, almost complete common sense.

v) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof.

In conclusion, on all the evidence the Tribunal should make findings of fact as to the primary facts and draw such inferences as it considers proper from these facts. Tribunals should then reach a conclusion on the balance of probabilities which face a person who complains of unlawful discrimination the fact that it is for the complainant to prove his or her case."

The difficulty we have is this, it may be that Mr Pemberton's evidence was to the effect that he did not regard communication as any bar to the proper appointment of the applicant. We have no finding as to whether that was Mr Pemberton's attitude. We have no finding as to whether the Tribunal accepted that was the true explanation of Mr Pemberton's decision.

If the Tribunal had gone through the King v Great Britain-China Centre formula - that provides a tool for flushing out what is the stated reason - and then considered whether that is the real reason and the inferences that can be drawn therefrom. It might have been, in certain cases, that for a transient contract of employment envisaged that an employer might well say, well, look, we did find this particular aspect of a disability a reason for non-appointment and, having regard to the timescale, we did not consider it was realistic to make the necessary arrangements... All these matters could have been put forward. Instead, what we have is the assertion that it was not a deliberate act and the soothing balm that those appointed were able to do the job. In areas of high unemployment one imagines that employers have often got a plethora of people able to do the job adequately. The problem for personnel managers is not, in many circumstances, that they have difficulty in recruiting. The problem is to have a system of recruitment which is fair: because they could probably recruit nine tenths of the people prepared to do the job.

At the end of the day, realising, of course, the great difficulties there are in Employment Tribunals of assessing the evidence and weighing it, we just do not know why it is that Mr Roberts was not appointed. Looking at the bundle we can speculate but all we are really told is a conclusion without the reason.

The disabled had been largely ignored until the Disability Discrimination Act. Although there were quota systems they were rarely enforced. This Act challenges us all to examine why it is that we are not appointing someone. There is nothing in this decision that can be identified as showing why it is that Mr Roberts was not appointed. In saying this, we wish to make it quite clear, there is nothing that leads us to the view that it would be appropriate, at all, for us to substitute a finding ourselves; we simply cannot and would not, and Mr Booth is far too professional in his approach to seek for us to do so.

It may be that, on a full analysis of the matters, there were good causes totally unrelated to disability for the fact Mr Roberts was not appointed. The trouble is we are not able to say whether that was or was not the case. We therefore remit this decision to be heard by a freshly constituted Tribunal.