United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WINTHROP Messrs Short Richardson & Forth 4 Mosley Street Newcastle-upon-Tyne NE1 1SR
For the Respondent	MR P GILROY Messrs Addleshaw Booth & Co 100 Barbiroli Square Manchester M2 3AB


 


JUDGE CLARK

1. The Appellant Dr Rudzki is disabled within the meaning of Section 1 of the Disability Discrimination Act 1995. He was injured in a road traffic accident in 1988 as a result of which he has significant difficulty in reading written or computer material.
2. On 9 July 1998 he responded to an advertisement placed in the press by the Respondent University for a Lecturer/Senior Lecturer in Human Resources Management. Following that application he was sent details of 2 further posts in Human Resources Management for which he was considered.

In his written application dated 9 July 1998 he said this:

"It should be noted that I am registered Disabled and I am finding it increasingly difficult to undertake my current duties. I would welcome the opportunity to discuss my special needs at interview."

3. The Appellant was not short-listed for any position by a panel comprising Professor Pendleton, Sue Shaw and Professor Healey which met on 3 August 1998.
4. Thereafter he presented an Originating Application to the Employment Tribunal on 16 October 1998 complaining of Disability Discrimination.
5. The complaint was heard by a Tribunal at Manchester under the Chairmanship of Mr M E Coles on 15 – 17 March 1999. By a decision with extended reasons promulgated on 12 April 1999, (the substantive decision) the complaint was dismissed.
6. It is clear from the Employment Tribunal's reasons that they considered only whether in rejecting his application the Respondent treated the Appellant less favourably for a reason which relates to his disability than they treated others who were not disabled, contrary to Section 5(1) of the Disability Discrimination Act. As to that, the Employment Tribunal found that the short listing panel approached their task in an objective and professional manner. The members of the panel had no idea what disability the Appellant was suffering from. They knew nothing about the Appellant other than the details given on his application form. They thought that in providing details about his academic and professional history the Appellant had been "economical with the truth."
7. The Employment Tribunal concluded that no consideration was given whatsoever by members of the panel to his disability. They simply wished to appoint the most suitably qualified applicants to the positions. The Employment Tribunal was not prepared to infer that the Appellant's disability formed any part of the panel's deliberations. He was not discriminated against on grounds of his disability.
8. Following promulgation of the substantive decision the Appellant applied for a review by letter dated 24 April 1999.
9. In his grounds for review he complained, among other things, that the Employment Tribunal had dismissed his request that reasonable adjustments should be made by the Respondent. He relied upon the then Employment Appeal Tribunal decision in Clark –v- Novacold (1998) IRLR 420. He also referred to the Code of Practice, paragraphs 5.20, 22, 25 and 26.
10. In rejecting the review application under Rule 11(5) the Chairman, by a decision (the review decision) promulgated with reasons on 11 May 1999, said this at paragraph 7 of his reasons: -

"In the third paragraph of the letter of 24 April 199, the applicant states that the respondents admitted that no attempt was made to make any reasonable adjustment. However the Tribunal was satisfied, as confirmed in the extended reasons given, that the decision of the selection panel not to shortlist the applicant was based upon their assessment of his suitability for the positions having regard to the contents of his application form, irrespective of the fact that he had identified that he was disabled. In those circumstances, any question relating to the duty of the respondents to make a reasonable adjustment within the meaning of the provisions of Section 6(1) of the Disability Discrimination Act 1995 does not arise."

11. Further, by a Notice of Appeal dated 5 May 1999 the Appellant appealed to the Employment Appeal Tribunal against the substantive decision.
12. That appeal came on for preliminary hearing before a division on which I sat on 28 September 1999. For the reasons given in the judgment which I delivered on that day the appeal against the finding that he was not discriminated against contrary to Section 5(1) of the Disability Discrimination Act was dismissed, but an argument based on an alternative claim under Section 5(2) of the Act was permitted to proceed to this full hearing. It is with that issue we must now deal.
13. It is quite clear that Section 5 of the Disability Discrimination Act raises two separate and discrete causes of action; the Section 5(1) claim (direct discrimination) and the Section 5(2) claim, read with Section 6 (failure to make reasonable adjustments). It is also clear that a finding against an applicant on his Section 5(1) claim will not of itself preclude a finding in his favour on a Section 5(2) claim. See per Mummery LJ in Clark –v- Novacold (1999) IRLR 318, paragraphs 75 – 77.
14. In these circumstances Mr Winthrop submits

(1) That on the face of their reasons for the substantive decision the Employment Tribunal has not addressed the question of reasonable adjustments raised by Section 5(2) and 6 of the Act.

(2) That in paragraph 7 of the review decision the Chairman had indicated that the Employment Tribunal concluded that since the Respondent here reached a genuine decision not to short-list the Appellant without regard to his disability, no question of reasonable adjustments under Section 6 arises.

(3) That in so concluding the Employment Tribunal fell into error. They did not follow the steps set out by Bell J in the Employment Appeal Tribunal decision in Morse –v- Wiltshire County Council (1998) IRLR 352. Consequently the case must be remitted to the Employment Tribunal for that exercise to be carried out.

15. Mr Gilroy does not challenge the logic of that submission if a Section 5(2) complaint was properly before the Employment Tribunal for determination. However, he submits that it was not.
16. He has taken us to the Originating Application, which does not differentiate between claims brought under Section 5(1) and (2). The Appellant was given the opportunity to set out the nature of his case following a directions hearing. In his letters to the Employment Tribunal dated 31 January and 13 February 1999, in answer to the question why he was discriminated against: he said:

"I believe I was discriminated against because of my disability in that my application was viewed less favourably than others of a similar nature/"

17. In addition, no Section 5(2) claim is foreshadowed in the Appellant's DL56 Questionnaire, or the response to that questionnaire by the Respondent, nor in his witness statement for use at the Employment Tribunal hearing. He led no evidence before the Employment Tribunal on the question of reasonable adjustment (subject to one point made by Mr Winthrop, to which we shall return). We are told by Mr Winthrop that the Appellant mentioned reasonable adjustments for the first time in his closing submissions at the end of the 3 day hearing in March 1999.
18. In these circumstances, submits Mr Gilroy, the Employment Tribunal was under no obligation to rule on a Section 5(2) complaint not raised before them. Indeed, even today he complains that no case is advanced as to specific adjustments which it is said ought to have been made.
19. To that Mr Winthrop argues that by raising the question of his disability in his original job application the Respondent was under a duty to consider what adjustments it ought to make in the Appellant's case when dealing with that application. To that extent he argues that the issue was before Employment Tribunal .
20. It is common ground that the onus lies on an applicant to make out his case under Section 5(2)(a) of the Act. We bear in mind the observations of the Court of Appeal in Mensah –v- East Hertfordshire NHS Trust (1998) IRLR 531. There the Applicant in person, Mrs Mensah, raised a particular complaint of racial discrimination in her Originating Application, among others, but did not pursue it in evidence or in argument before the Employment Tribunal. The Employment Tribunal did not rule on that head of complaint. The Employment Appeal Tribunal held that they ought to have done. The Court of Appeal disagreed. It was for the Applicant to bring forward the whole of her case in evidence and argument for the Employment Tribunal to rule on. The fact that she was unrepresented was nothing to the point.
21. In this case we are satisfied that the Respondent had no prior notice of a Section 5(2) claim by Dr Rudzki. He led no evidence in support of such a claim and none was in the circumstances led by the Respondent nor was there any cross examination on that question. It was then in our judgment too late for him to raise the matter in his closing submissions.
22. In order for the Employment Tribunal to rule on such a claim it would be necessary to consider, on the evidence, first whether the Applicant was put at a substantial disadvantage for the purposes of Section 6(1)(b) of the Act and then to consider whether any reasonable adjustments ought to have been made, for example, in the selection criteria used; the application of those criteria to the job candidates, including the Appellant, the way in which the selection process was carried out and possibly even the way in which the job was eventually to be performed. None of those matters was raised prior to the hearing or canvassed in evidence from either party.
    
23. We are unable to accept Mr Winthrop's submission that merely for the Appellant to raise the question of his disability in his job application was sufficient to put in issue before the Employment Tribunal a Section 5(2) claim without more.
24. In these circumstances we have concluded that this appeal seeks, impermissibly, to give the Appellant a second opportunity on remission, to advance the case which he failed to advance first time round. Applying the principle in Mensah we shall not allow him to do so. The Employment Tribunal was not obliged to rule on a notional Section 5(2) claim. The appeal must be dismissed.