United Kingdom Employment Appeal Tribunal

Appeal No.  EAT/6/99

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

At the Tribunal

On 7th December 1999

Judgment delivered

On 11th January 2000

 

 

 

Before

HIS HONOUR JUDGE PETER CLARK

LORD DAVIES OF COITY CBE

MR A E R MANNERS

 

 

 

 

MR M MURPHY APPELLANT

 

 

 

 

 

 

SHEFFIELD HALLAM UNIVERSITY RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

Revised

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MS F KRAUSE (Representative)
For the Respondents	MR J N GALBRAITH-MARTEN (of Counsel) Messrs Dibb Lupton Alsop Solicitors Fountain Precinct Balm Green Sheffield South Yorkshire S1 1RZ

 

 

JUDGE PETER CLARK: This is an appeal by Mr Marten Murphy, the applicant before an Employment Tribunal sitting at Sheffield over four days, against that tribunal’s decision, promulgated with extended reasons on 11th November 1998, dismissing part of his complaint of disability discrimination brought against the respondent, Sheffield Hallam University. The complaint was also upheld in part. A cross-appeal against that part of the decision, raised in the respondent’s Answer, has been expressly abandoned by Mr Galbraith-Marten.

 

The Facts

 

1. The appellant is profoundly deaf. He is disabled within the meaning of s.1 of the Disability Discrimination Act 1995 [‘the Act’].

 

2. In November 1997 the respondent advertised the vacant position of learner support co-ordinator. The appellant applied for the post on 22nd November, indicating the nature of his disability on his application form.

 

3. The appellant was invited for interview on 16th December 1997. No arrangements had been made by the respondent for the attendance of a sign interpreter, notwithstanding the advance notice which the appellant had given of his disability. As a result the interview was adjourned to 18th December. The tribunal found that in failing to make arrangements for the 16th December interview the respondent had unlawfully discriminated against the appellant contrary to ss.5(2) and 6 of the Act. They awarded him £2,500 compensation for that act of discrimination. It is to that part of their decision that the now abandoned cross-appeal by the respondent was directed.

 

4. The resumed interview took place on 18th December. The appellant appeared with Dr Sheppard, a highly competent amateur signer. No point was taken as to that by the appellant; his complaint was that following that interview he was not offered the job for a reason relating to his disability. It is that claim with which we are concerned in this appeal.

 

5. The selection panel on 18th December consisted of Mr Layer, Head of Access & Guidance; Mrs Gandy, Support Officer and Mr Spriggs, the Education Adviser. Mr Layer and Mrs Gandy gave evidence before the tribunal. Mrs Gandy had played an administrative role during the interviewing procedure. The key question, so the tribunal concluded, was whether they could accept the evidence of Mr Layer as to the decision-making process. They decided that they could.

 

6. It was common ground that the appellant was disabled; he was less favourably treated than the successful candidate, a Mr Turner, who was not disabled. The question, under s.5(1) of the Act, was whether that less favourable treatment was for a reason relating to the appellant’s disability. The causation issue. If so, it would then be necessary for the tribunal to consider any defence of justification raised by the respondent.

 

7. Much reliance was placed by Miss Krause, who appeared below and before us on behalf of the appellant, on the Interview Assessment Forms in relation to both candidates, the appellant and Mr Turner, completed by Mr Layer.

 

8. On the appellant’s form, under the heading “Any other Factors”, Mr Layer had written this:

 

“The lack of “in class” and formal communication support experience meant that Martin could not undertake the post without significant development work over a long period.”

 

Commenting on that observation at paragraph 10 of their reasons the tribunal said that it did, to some extent, reflect the appellant’s disability because such support would require the provision of a sign interpreter to assist him in that part of his work. However, at paragraph 15 they went on to accept Mr Layer’s evidence that any cost or inconvenience so caused would have been covered by the Department.

 

Causation

 

9. Although the causation element in the various discrimination statutes involves slightly different wording; here the expression used in s.5(1) of the Act is “for a reason which relates to the [complainants] disability”; in the Sex Discrimination Act 1975 and the Race Relations Act 1976 the expression used in s.1(1)(a) is “on the grounds of” sex or race respectively; and in relation to victimisation under those Acts the relevant expression is “by reason that”, we accept Mr Galbraith-Marten’s submission that the causation test is essentially the same in each. See, particularly, Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls, paragraphs 19, 35. The question is whether, in this case, the appellant’s disability was the “effective and predominant cause” or the “real and efficient cause” of the less favourable treatment. See O’Neill v St Thomas More Roman Catholic School [1997] ICR 33, 43E, per Mummery J. It need not be the sole cause of the treatment. Owen and Briggs v James [1982] ICR 618, expressly approved by Lord Nicholls in Nagarajan, paragraph 35.

 

The Employment Tribunal decision

 

10. The Employment Tribunal accepted that if the respondent’s decision had been based purely on the factor identified by Mr Layer in the appellant’s Interview Assessment Form to which we have referred, then the complaint would be made out. That was said in response to Miss Krause’s submission that the only downside to the appellant was something which undoubtedly did have disability implications and thus automatically must have led to his failure to get the job and hence less favourable treatment.

 

11. However, they rejected that submission. They accepted Mr Layer’s evidence that disability was not a factor in the decision to appoint Mr Turner. The sole reason was that he was perceived as the best candidate. The interview assessment forms were simply a basis for discussion.

 

12. In these circumstances the tribunal concluded that the less favourable treatment afforded to the appellant was not for a reason relating to his disability. That part of the complaint failed. Accordingly the question of justification did not arise.

 

The Appeal

 

13. In her skeleton argument, developed in oral submissions, Miss Krause, who is a barrister appearing for the appellant as a friend, raises the following issues. We shall deal with each in turn.

 

(1) Was it open to the tribunal to find that although “the only downside to the appellant was something which undoubtedly did have disability implications” the failure to offer him the position was not discriminatory on the grounds of his disability?

 

14. That is a direct reference to paragraph 13 of the tribunal’s reasons. We understand the tribunal to be there recording Miss Krause’s submission, not making a finding to that effect.

 

15. Their finding was that although the factor recorded on the appellant’s Interview Assessment Form did reflect his disability, that was not an effective cause of the appellant not being selected for the job. They accepted Mr Layer’s evidence that arrangements would have been made within the Department to overcome the appellant’s need for support in the form of a signer. The sole reason for appointing Mr Turner was that he was the best candidate. But for that fact, the appellant would have been appointed (reasons paragraph 16).

 

16. Miss Krause told us that she could not accept that the tribunal found that Mr Turner was the best candidate. No adequate explanation for reaching that conclusion was advanced by Mr Layer in evidence. Be that as it may, the question for us is not whether we would have reached that conclusion on the evidence, but whether the tribunal was entitled to do so. Plainly they were, based on Mr Layer’s evidence.

 

17. In our view the tribunal gave adequate reasons for their conclusion that the appellant’s disability played no part in the decision to offer the post to Mr Turner.

 

18. (2) Were the tribunal entitled  to look solely to the credibility of the respondent’s main witness, Mr Layer, in deciding whether there had been less favourable treatment of the appellant by reason of his disability?

 

19. The tribunal was obliged to look at all of the evidence in reaching their decision. In our judgment they did so. It was open to them to find that, consciously or subconsciously, the appellant’s disability was a significant factor in the decision not to offer him the job. They declined to make that finding. That was a matter for them. We can see no evidence in the tribunal’s reasoning that they failed to ask themselves and answer the correct causation question.

 

20. (3) Ought the tribunal to have gone on to to consider the question of justification?

 

21. In our view that step was not necessary after the tribunal found, we think permissibly, that the appellant had not established the necessary causative link between his disability and the decision not to offer him the job for the purposes of s.5(1)(a).

 

23. (4) Did the tribunal fall into error by not expressly referring to the Code of Practice. Miss Krause relies on the judgment of Morison J in Goodwin v The Patent Office [1999] IRLR 4?

 

24. It is correct to say that no mention is made of the Code by the tribunal in their reasons. However, on the submissions before us the only provision referred to has been paragraph 2.2, which states that the Act does not prohibit an employer from appointing the best person for the job. That is reflected in this tribunal’s findings here.

 

25. In short, we accept Mr Galbraith-Marten’s submission that this tribunal reached a permissible conclusion, adequately expressed, on the facts as found. The appellant failed to establish that his disability in fact played any part in his failure to be selected for the job. It was not an effective cause of the less favourable treatment. Hence his complaint in this respect failed. So too must this appeal. It is dismissed.