United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S BARBER (Regional Officer) UNISON Ist Floor Congress House Great Russell Street London WC1B 3LS


 


JUDGE PETER CLARK: The appellant, Ms Shah, who is black, female and disabled, was at all relevant times employed by the respondent, the London Borough of Brent.

She presented an Originating Application to the Employment Tribunal on 26th September 1997 alleging unlawful discrimination on the grounds of her race, sex and disability. She contracted polio as a child which caused shortening of her right leg. She wears a calliper and uses a walking stick.

Thereafter she presented two further complaints of unauthorised deductions from wages. The claims were consolidated and heard by an Employment Tribunal sitting at London (North) on 21st - 23rd September 1998. All complaints were dismissed by a decision with extended reasons promulgated on 15th October 1998. Against the decision she now appeals.

In this appeal Mr Barber takes four points, which may be identified as follows:

(1) The appellant complained that she was less favourably treated on the grounds of her sex when compared with Ash Mohammed, a male employee. Both were employed by the respondent as finance officers. The less favourable treatment alleged consisted of his being up-graded to grade PO1 whilst she remained on grade SO2 following a job evaluation exercise carried out in relation to his job in November 1995. She remained on grade SO2 at a lower salary. She requested a similar job evaluation exercise and followed this up by instituting a grievance in October 1996. At the date of her first Originating Application no job evaluation exercise had been carried out in relation to her job.

The tribunal found that Ash Mohammed was not a true comparator because he was part of a different business unit within the respondent Council. Further, she was not less favourably treated because she received an honorarium, so that she was no worse off. This part of the claim was rejected.

Mr Barber has sought to persuade us that those findings were impermissible, particularly in the circumstances where after the first Originating Application was presented, her grievance was upheld and a re-evaluation was carried out in relation to her post.

We have considered that submission, but it seems to us that this was essentially a question of fact for the Employment Tribunal and we see no grounds in law for interfering with their conclusions.

(2) Job Interview. Due to an internal reorganisation the two finance officer posts became one. A ring-fenced interview was carried out, limited in the first instance to the appellant and Ash Mohammed, for that single post. He was successful following the interviews and the appellant was redeployed to a lower post with her salary protected for 12 months.

It had been intended that the interview panel of three would contain one woman. At the last minute that person was unable to sit on the panel and the interview went ahead with the appellant by a three man panel.

The tribunal found that failure to provide a mixed sex panel did not constitute sex discrimination and that finding is not challenged on this appeal. Nor did they accept that Paul Maguire, who was the sole candidate at a ring-fenced interview, and who was given a second interview, was a true comparator. The difference being that in the appellant's case she was up against another employee, Ash Mohammed, for the single post of finance officer.

Mr Barber has sought to challenge that finding on the basis that Maguire was a true comparator. Again, we think this is a pure question of fact for the tribunal and we see no grounds for interfering with that finding. Accordingly, the second ground of appeal is dismissed.

(3) It is submitted that whereas the appellant received salary protection for 12 months, two white alleged comparators, B Evan and S Clark, received indefinite salary protection.

This question of salary protection is dealt with by the tribunal at paragraph 28 of their extended reasons. We see that they have made a comparison with three team managers, none of whom are the alleged comparators, Evans and Clark. We have been shown Mr Barber's closing submissions before the Employment Tribunal in which it is quite clear that the submission was made that both B Evans and S Clark, white, were given permanent protection on higher grade 5, and there is a reference to the appellant's witness statement at paragraph 58 where this allegation is set out. Mr Barber's point quite simply is that the tribunal have failed to address a material aspect of the complaint, that is, the comparison between the appellant and Evans and Clark.

We are unable to deal with this allegation at an ex parte hearing in the absence of argument from the respondent. In these circumstances, this being a preliminary hearing, we are driven to conclude that this point must proceed to a full appeal hearing.

(4) Reasonable adjustments - parking. The disability discrimination claim focuses on the adjustment which it is said that the respondent ought to make for the appellant's parking arrangements, bearing in mind her disability to which we have referred.

In dismissing that part of the claim the tribunal at paragraph 30 of the their reasons refer to an arrangement which "was accepted by the Applicant and her trade union as reasonable by a letter dated 3 July". On that basis they found that the respondent had made reasonable adjustments under s.6 of the Disability Discrimination Act 1995.

Mr Barber submits that that conclusion overlooks events on the evidence which occurred after 3rd July 1997. In particular, that on 15th August the appellant met with Debbie Ward, her senior manager, and advised her that the arrangement reached in July was not working and that a review should be held. We are told that Debbie Ward agreed to bring forward a review of those arrangements. Mr Barber refers to evidence given by the appellant that the review was blocked by a manager, Mr K Gwilt.

At this stage all we can say, with certainty, is that the tribunal have not referred to any evidence post 3rd July in this connection, but have simply relied on the agreement reached on that date in finding that a reasonable adjustment had been made. Again, it seems to us that Mr Barber's submission under this ground of appeal ought to proceed to a full appeal hearing.

For the purpose of the full appeal hearing we shall direct that the case be listed for ½ a day, Category C. We have considered Mr Barber's application for Chairman Notes of Evidence, and in the light of the grounds on which we permitted the matter to proceed, we do not consider them to be necessary.

Finally, the parties should exchange skeleton arguments not less than 14 days before the date fixed for the full appeal hearing, copies of those skeleton arguments to be lodged with this tribunal at the same time.