United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE DAVID WILCOX:

1. This is an appeal against a decision of an Employment Tribunal sitting on 10, 11, 12, 13 and 14 May 1999 at Manchester. The decision appealed against is this; that the Applicant was not unlawfully discriminated against contrary to section 4(1)(a) and (c), read with sections 5(1) and (2) of the Disability Discrimination Act 1995 and that the Respondent was not in breach of any duty to make adjustments under section 6(1) of the 1995 Act.
2. The background facts briefly are these. The University College of St Martins, the Respondent to this appeal, were seeking an Assistant Director for its International Office. Dr Rudzki, the Appellant, applied for that job. He had been head of an Overseas Office at a University and it is clear that his extensive qualifications met and, indeed, were in excess of the criteria for the post. He mentioned on the application form that he was registered disabled. He filled in an Equal Opportunities document which condescends to very much greater detail as to the nature extent of the disability. That document did not go before the reviewing panel. It was found by the Employment Tribunal, as a matter of fact, that Dr Rudzki was considered by the Respondents as someone who was over-qualified for the job in the terms of his academic and other qualifications. They also made reference (and I paraphrase their findings here) that his was an academic bent when they sought to appoint somebody with a practical bent.
3. It is clear from the findings of the Tribunal that the Tribunal had misgivings about the selection process and apprehension about the fairness in the selection of candidates, not on criteria of disability but on the grounds of qualification. Dr Rudzki has articulated to us, in a persuasive and strong way, that he too, had reservations as to why he was not short-listed and to why the person who eventually was appointed was. That candidate was less qualified than him, in all the circumstances. But the burden upon him in a case like this can be expressed shortly. It is for him to show that the unfairness resulted from, or related to, his disability.
4. The Tribunal considered that matter in great detail and found that, although there were matters that were the subject of legitimate criticism in the selection procedure and they went through those and made recommendations as to the future. Nonetheless, having appraised the system, they found as expressed at paragraph 22 of their decision, that they were satisfied that someone with Dr Rudzki's qualifications and experience, who applied for the post, who did not have a disability of a similar kind to the Applicant or, indeed, any disability, would still not have been short-listed and thus would not have been offered the job. It is the proper approach, in our judgment, applying Clark v Novacold Ltd [1998] IRLR 420, the test propounded in that case.
5. So far as the procedure was concerned of selection it has been urged upon us by Dr Rudzki that once an employer is apprised of the fact that an applicant is disabled, then duties fall upon the employer as to short-listing and consideration thereafter. That may be so. It is not for us in this case to express ourselves further upon that matter. Suffice it to say that, although the Tribunal considered that there was unfairness in the procedure, or potential unfairness, their finding is that it did not relate to the disability of the Appellant, Dr Rudzki and it follows that they came to their conclusions essentially applying the proper test in law and as masters of the facts. We cannot say that they, as masters of the facts, seeing and hearing witnesses and those who adjudicated in the process of selection, that the decision of the Tribunal was a perverse one. We therefore dismiss this appeal.