United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS MELANIE TETHER (ELAAS)


 


MR COMMISSIONER HOWELL QC:-

1. In this appeal which is before us today for a preliminary hearing, Mr Graham Collin Roberts seeks to pursue an appeal against the decision of an Employment Tribunal given after a hearing which took place over 5 days in April and May of last year and recorded in the Tribunal's Extended Reasons at pages 5-14 of our appeal file, those reasons having been issued to the parties on 2^nd August 1999.
2. Briefly, the claim brought before the Tribunal was that the Applicant contended he had been discriminated against on account of his disability in that although suitably qualified for a post of an analyst programmer with the Respondents, Oxford Brookes University, he had not been offered the position and that in the course of the selection process and/or interview he was the victim of discrimination on account of disability. Mr Roberts suffers from arthritis of the spine which is, of course, an extremely painful and difficult condition to live with, but he manages to cope with it reasonably well: and by the fact that he applied for the post and from the evidence before the Tribunal it is apparent that his disability would not of itself in fact have prevented him from holding such a post. The Tribunal which heard the case considered evidence from Mr Roberts and from various people who had been involved in the selection process, which included among other things a test at the Respondent's premises and an interview conducted by two managers and attended by him.
3. The Tribunal rejected on the facts the claim that when the job was offered to another of the candidates who had been interviewed, this had itself amounted to discrimination against the Applicant contrary to section 4(1)(c) of the Disability Discrimination Act 1995 that makes it unlawful for an employer to discriminate a disabled person by refusing to offer or deliberately not offering him employment.
4. That finding of the Tribunal is not disputed on appeal. On behalf of Mr Roberts, Miss Tether who appeared for him under the ELAAS scheme has presented submissions and a skeleton argument setting out the possible arguments in this favour in extremely clear and elegant form, submits that we should allow this appeal to go forward to a full hearing purely in relation to alleged discrimination under section 4(1)(a) making it unlawful for an employer to discriminate against a disabled person in the arrangements he makes for the purpose of determining to whom he should offer employment. I should say that there is no dispute that the severe arthritis from which Mr Roberts is unfortunate enough to suffer does count as a disablement for this as well as other purposes.
5. Narrowing the scope of the issues before us still further, Miss Tether made it clear, we think entirely rightly, that the only allegations of potential discrimination which are relevant for us to consider were two identified in the grounds of appeal submitted by Mr Roberts dated 8^th September 1999 and set out on page 4 of the appeal file, both of which related to matters that took place at the interview between him and a panel consisting of a Mr Ross and Mr Prior-Wandesforde, both of them managers or personnel people employed by the Respondents. The first ground is that the Tribunal is alleged to have erred in law in finding that a remark by Miss Ross to the Appellant at the very start of his interview that he "did not look disabled" was not a remark stereotyping him as a disabled person, thus itself amounting to less favourable treatment and discrimination contrary to section 4(1)(a). The second ground is that the asking of further questions, (which it is common ground were asked of the Appellant at his interview relating to his arthritis and are referred to in the Tribunal's findings) amounted to discrimination and that the Tribunal erred in finding that the asking of such questions in such circumstances was justified and did not amount to discrimination on the ground of Mr Roberts' disability.
6. We turn to the findings of the Tribunal to which these points relate. The primary facts are set out conveniently in paragraph 11 of the Tribunal's Extended Reasons:-

"The applicant then attended the interview before a panel consisting of Miss Ross and Mr Prior Wandesforde; before the commencement of the interview, Miss Ross made the comment that the Applicant "did not look disabled.He was asked questions about his arthritis and how this would affect him and also his absence record.

I did not need to recite any further parts of the Tribunal's findings of fact except to note that they did go in considerable detail and with care through the events at and around the Appellant's interview and what transpired afterwards. Miss Tether submits that the Tribunal's consideration of the issues raised by what was said at the interview was defective in law in the two ways already identified in the Notice of Appeal. In particular she attacks paragraph 20 of the Extended Reasons in which they first of all identified for themselves the issues that needed to be considered as:-

"(1) Was the Applicant discriminated against by reason of arrangements which were made to determine whether or he should be offered the job?

(2) Was the applicant unlawfully discriminated against by refusal to offer him employment?"

Those, of course, related to schedule 4(1)(a) and 4(1)(c) of the Disability Discrimination Act and it is only with the first of them that we are now concerned.

7. On this, the Tribunal recorded in paragraph 20 as follows:-

"The comment by Miss Ross that the applicant did not look disabled was unwise as there was the possibility that it could be misunderstood. It was a spontaneous reaction to the applicant's appearance as not obviously being disabled and we distinguish that remark from the remarks made in the case of the Institu v Head. In that case a female employee was addressed in a meeting by a Manager "hi ya big tits" and this was found to amount to sexual harassment causing the employee to suffer detriment. That, in our view, is far removed from the facts of the present case and furthermore we do not consider the remark stereotyped the applicant as a disabled person. If anything, it cancelled out any possible perception of stereotyping. We find that the questions asked by the respondents relating to his disability were fully justified in accordance with the provisions of the Code of Practice. The fact that the question of adjustments was not pursued was because it soon became apparent that adjustments would not be needed, the post being one ideally suited to a person with the applicant's disability. However, the applicant did not appear disabled and it was therefore even more desirable that some preliminary questions should be asked to satisfy the panel that there was not some underlying problem that was not readily apparent that needed to be addressed. Asking the questions did not mean the Applicant was being treated less favourably than the other applicants as it would not be necessary to ask those questions of other applicants".

8. The Tribunal's reference to the Code of Practice related to a passage which they had already quoted in paragraph 16 of the Extended Reasons from the statutory Code of Practice on Disability accompanying the provision under section 5(1) of the Disability Discrimination Act (meaning of discrimination) that an employer discriminates against the disabled person, if for a reason which relates to the disabled persons disability, he treats him less favourably than he treats or would treat others to whom the reason does not or would not apply and he cannot show that the treatment in question is justified.
9. Paragraph 5.20 of the statutory Code of Practice comments on the way justification may be shown in the following terms:-

"The Act does not prohibit any employer from seeking information about the disability, but an employer must not use it to discriminate against a disabled person. An employer should only ask about a disability if it is or may be relevant to the persons ability to do the job after a reasonable adjustment, if necessary. Asking about the effect of the disability might be important in deciding what adjustments ought to be made". [our emphasis]

10. Dealing first with the remark at the opening of the interview (or just prior to the commencement of the interview proper) that the Appellant "did not look disabled" we accept, and indeed the lady who made it appears to have accepted in evidence before the Tribunal, that this was an inadvisable remark to make in the circumstances. Personal remarks at stressful times such as personnel interviews, are perhaps always unwise things to embark on because of the risk that they may offend or upset people who it is quite understandable are under pressure at the time.
11. We are not however satisfied that there is an arguable ground in this case for letting this appeal go forward to a full hearing at the Tribunal on the basis that the mere fact of saying to a person suffering a disability that they do not appear to be disabled is itself a detrimental remark contrary to section 4(1) or 5 of the Disability Discrimination Act. There was no evidence or contention so far as we can see before the Tribunal in this case that the Appellant was in fact placed at any identified disadvantage in the interview as it proceeded, by the making of this remark; so that the case made on this aspect of the Appeal would be merely based on the fact of the making of that remark. We do not think it is arguable that the mere making of such a remark in the particular context it was made here, by itself demonstrates less favourable treatment for the disabled person to whom it is made.
12. On the second question, criticism is made of the Tribunal's rejection of the case as regards the further questions. These appear to us from what the Tribunal found in the paragraph we I have already quoted to be all questions about the possible effects of the Appellant's arthritis including whether it would present him with any difficulties in turning up for work on a regular basis. We consider, especially having regard to the provisions of the Code of Practice, that those are entirely proper and appropriate questions to ask a person who has disclosed the fact of their disability in attending for a job interview, as they may well affect consideration of what adjustments it might be appropriate to make to enable them to take up the employment. Indeed, having regard to the provisions of paragraph 5.20 of the Code of Practice to which we have already referred, we consider it possible that if such questions were not asked of a person who had a relevant disability, an employer might even be open to criticism for failing to explore the possibility so that suitable adjustments might be made in order to make it easier for that disabled person to take up the employment.
13. Consequently, we consider that there was nothing detrimental in the asking of those questions. As is apparent from the Tribunal's conclusions as expressed in paragraph 20 to which we have already referred, it appears on a reasonable reading of what they say that all the questioning on the various aspects of the effects of the Appellant's disablement were indeed related to the question of whether any adjustments might need to made, if he were found to be the person who was selected to take up the employment. In particular the Tribunal recorded that they found that the questions asked relating to his disability were fully justified in accordance with the provisions of the Code of Practice: and it is we think in the context of the passage from the Code of Practice already quoted by them that their findings in paragraph 20 of their Extended Reasons have to be read.
14. As is apparent also from what they found in paragraph 20, it speedily became apparent in the course of the interview after the questions had been posed that in fact no adjustments would be needed. As they say, the question of adjustments was then not pursued. So far as the evidence recorded in the Tribunal's findings goes, which we have no reason to doubt is a fair and correct assessment of the evidence before them, the question of any difficulties as a result of Mr Robert's disability then ceased to be an issue or a question addressed in the interview at all and the interview moved on to other matters.
15. Consequently, the Tribunal having found that there was no discrimination in the asking of those questions and there being, so far as we can see, no finding or basis for a finding that any detriment to Mr Roberts actually resulted from those questions having been pursued and apparently satisfactorily answered, we cannot see that there is any basis for it to be said the Tribunal have erred in law in their finding that there had in fact been no discrimination in relation to the questions asked in the course of the interview.
16. There being no other arguable grounds put before us for saying that this Tribunal's decision was erroneous in law we have not been satisfied that there are grounds to warrant us sending this appeal forward for a full hearing before the Employment Appeal Tribunal. We now unanimously dismiss the appeal.