United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	In Person


 


MR JUSTICE BURTON

1. This is an appeal by Mr Bruce against the dismissal by the Employment Tribunal at Leeds, of his claim for disability discrimination against Kingston upon Hull City Council. This is a Preliminary Hearing in which the Appellant has to show a sufficiently arguable case to be permitted to proceed with his appeal on an ex parte basis. We have had the benefit of Mr Bruce's submissions both at length in the original documents which he put before the Employment Appeal Tribunal on an application for review and more fully in his lengthy skeleton argument before us and orally.
2. We are unanimously of the view that no error of law is even arguably disclosed on the face of the Employment Tribunal decision, on the basis of the submissions he has put forward. Very shortly, he applied for an appointment with the Respondent Council. There were certain problems which arose in relation to his submission of his application, which formed part of his complaint to the Employment Tribunal, but on which he has not addressed us today, concentrating rightly on his most significant point. But primarily the problem so far as he is concerned is that he was put on the short-list, he was given an interview and he was not appointed, being placed by the Council fourth of the four on the short-list, when it came to an assessment after interview. His primary claim before the Employment Tribunal was that he was discriminated against within the terms of sections 4,5 and 6 of the Disability Discrimination Act, by virtue of his non-appointment to the post.
3. The factors which were taken into account by the Respondent were fully explained to, and canvassed before, the Employment Tribunal, who had the benefit of hearing the evidence, and it is not appropriate for this Appeal Tribunal simply to look at the odd document and seek to listen to submissions as to an interpretation to be drawn from a document, unless it is something that manifestly falsifies a finding of fact by the Tribunal; but, that said, we did look, at Mr Bruce's request, at the interview assessment forms of himself and of the successful candidate, and it is apparent that, no doubt as more fully explained orally by the Respondent, there were six headings under which they made their notes and then an overall assessment, the headings being relevant experience, qualifications, special skills and abilities, social skills, motivation and physical characteristics. Apart from physical characteristics, in which he shared the same mark as the successful applicant, he was beaten substantially by the successful applicant on all the other aspects. He submitted to the Employment Tribunal, and before us, that there were three matters in particular in respect of which he complained that they had been the subject matter of discrimination against him.
4. The first was that he had not obtained a degree, hence he would be marked down on qualifications as against the successful candidate who apparently did have a degree, and that no or insufficient account would have been taken of the fact that his lack of such degree may have been caused or contributed to by his disability in respect of the accessibility of university education to him or someone with his disability. Secondly, that he had, and was marked down as having, a weakness so far as experience was concerned, and that was explained as being lack of Local Authority experience and Magistrates Court experience, and again he submitted to the Employment Tribunal and before us that there was no or insufficient allowance made, pursuant to the obligation of the employer under section 6 of the Act, for the fact that his lack of experience compared with the successful candidate, and indeed the other candidates, may have been or was due to his disability. Thirdly it appears that the successful candidate had received a prize. The Appellant had also received a prize, but he did not disclose that in his application form, because he did not consider it a relevant factor to disclose, but his lack of prize will have been held against him as compared with the successful candidate, and that too, he says, is something which ought to have featured in the thinking on making allowances for disability which the employers were under an obligation to go into. He also submits that because of the proper policy of the employers in relation to a tie-break, where a disabled person was otherwise equivalent to a non disabled person, the Respondent did not give itself sufficient opportunity to allow for tie-breaks by the method of marking that they adopted.
5. All these matters were, it seems to us, put before the Employment Tribunal and fully canvassed by them and they not only came to the conclusion that the Appellant had failed to prove any case under the Act, but positively commended the Respondent employer for the procedures and policies intended to benefit disabled employees and prospective disabled employees which the Respondent adopted. We can see no basis upon which the Employment Tribunal's conclusions can be faulted at all.
6. The passage on which Mr Bruce primarily concentrated is paragraph 9(b) of the decision, and the reference to Morse –v- Wiltshire County Council [1998] IRLR 352 and Ridout –v- T C Group [1998] IRLR 628, and, he would also add, for although it was not specifically referred to in the Tribunal's decision it was referred to as having been put before them, in paragraph 8 of the decision, Kenny –v- Hampshire Constabulary [1999] IRLR 76. These authorities show that there is a duty on employers to keep an eye out for factors for which allowance should be made, but that, by reference to Ridout, if there were disabilities, or effects of disabilities, for which the employers could not reasonably have made provision or which they would not have been able to appreciate and which were not drawn to their attention, then they have no such duty, or their duty is easily fulfilled. Mr Bruce submits that the consequences of his disability in relation to qualifications and experience cannot have been adequately considered by the Respondent, alternatively that the Tribunal erred in the way they approached the duty of the Respondent in this regard.
7. We are entirely satisfied that the Tribunal did not err in its approach to this case. In any event, the Tribunal plainly considered the totality of the Appellant's job application, and the fact that there was no question of tie-break, but that he was inferior in all the relevant areas, not just those of qualification and relevant experience, which were specifically addressed by the Tribunal, but above all, when considering interviews, in the aspects of social skills, special skills and abilities and motivation, as was fully explained in evidence by the Respondent's witnesses, upon which they could well have been, and no doubt were, cross examined; and there is no way in which we can consider that the Tribunal were wrong in concluding that the Respondent approached this from the appropriate standpoint and had good reason, irrespective of making allowances for disability, not to offer the job to this applicant. In those circumstances we consider, on this preliminary hearing, that this is an appeal that ought to be dismissed.