United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


SIR CHRISTOPHER BELLAMY QC

1. Miss T Woollam appeals again the decision of the Employment Tribunal sitting at Manchester, the Extended Reasons for which were sent to the parties on 4 January 2001. In that decision the Tribunal dismissed the Appellant's complaint that she is being or has been discriminated against by the Respondents within the meaning of the provisions of The Disability Discrimination Act 1995. The matter comes before us to day by way of an Ex Parte Preliminary Hearing to determine whether there is an arguable point of law in this appeal. It is only if the Appellant can establish that there is an arguable error of law on the part of the Employment Tribunal that we have any jurisdiction to proceed further with this case.
2. Neither the Appellant nor her representative has in fact appeared today to prosecute the appeal. We have carefully read the papers, in particular the Notice of Appeal that was received by the Employment Appeal Tribunal on 15 February 2001, the skeleton argument that was subsequently lodged on behalf of Miss Woollam and the documents that have also been lodged. The matter has an extensive history as appears from the decision of the Employment Tribunal. As part of the background we note that in 1997 the Applicant presented an earlier complaint to an Employment Tribunal which was heard in September 1998 and subsequently dismissed.
3. It appears that the Applicant suffers from dyslexia and in particular a specific type of dyslexia known as discalcula. In the earlier proceedings in 1998 she had applied for the vacant position of temporary supervisor and had been rejected. The Tribunal dealing with that matter gave its Extended Reasons on 8 October 1998 and held that the Applicant had not been discriminated against in contravention of The Disability Discrimination Act 1995.
4. In relation to the present appeal it appears from paragraph 12 of the Tribunal's decision that the essential issues amounted to two issues as follows. The first issue was that in December 1998 the Appellant had applied for the post of supervisor, such having become available when the post of temporary supervisor had been converted to a full time position. She was not short listed for interview and contended that the reason she was not short listed was because of her disability and that that amounted to discrimination within the meaning of the Act. The second issue before the Employment Tribunal with which this appeal is concerned was that the Applicant had been victimised by the Respondents contrary to Section 55 of the 1995 Act and five particular occurrences of victimisation are particularised in paragraph 15 of the Tribunal's decision.
5. What the Tribunal said in this case as regards the first complaint, that is to say the rejection of the Applicant for the post of supervisor to which she had applied in December 1998, was that the reason for not short listing the Applicant for that job was identical to the reasons that had been accepted by the previous Tribunal as justifiable, that is in paragraph 13 of the Tribunal's decision. What the Tribunal said in relation to the complaint of victimisation is effectively at paragraphs 17-20 of the decision. In those paragraphs, having listened to all the evidence, the Tribunal comes to the view that the Respondents were taking such steps as they considered appropriate in the circumstances to maintain proper discipline and order within the organisation and that having regard to the evidence and the burden of proof the Tribunal is not satisfied that the Respondent victimised the Applicant within the meaning of the provisions of Section 55 of the Act. At paragraphs 21 and 22 of the decision the Tribunal concludes with the following observations:

"21 The Tribunal had regard to the findings of the earlier Tribunal and in particular the comments made in the final paragraph of its reasons, with which this Tribunal concurred. [That was to express the hope that further discussion could take place between the Respondent and the Applicant as to whether a position could be identified for her within the Respondents organisation which would enable her to fully utilise her undoubted abilities whilst taking into account her disability]. There is no doubt that this Applicant has qualities and intellectual abilities which justify her belief that she should have moved forward from the position of Lifeguard which she currently occupies. The real problem in the Tribunal's unanimous view, was that the Applicant, her mother and other people assisting and advising her, were pre-occupied with the belief that she should have been appointed as a supervisor. The previous decision of the Tribunal suggested that the Respondent should look at ways of maximising the Applicant's potential but this Tribunal does not believe that such suggestion related to the position of supervisor. The Applicant contends that the Respondents went through "brainstorming" exercises looking at potential jobs for the Applicant which in many cases were, in her view, "demeaning". This Tribunal does not consider that that was the attitude of the Respondents at all. They were looking at ways in which the Applicant could achiever her maximum potential, either within or without the Respondents organisation (probably and perhaps importantly involving education courses). There were no adjustments the Respondents could make within the meaning of Section 6 of the Act which would have enabled the Applicant to become a supervisor.

22 This Tribunal considers that the Applicant and those advising her have, albeit with the best of motives, allowed a situation to occur in which the Applicant's disability has become of more importance than her abilities. This Tribunal believes that the Respondents did their best to assist the Applicant in fulfilling her potential. Within the band of reasonable expectations from an employer, this Tribunal considers the Respondents cannot be criticised for their actions. This Tribunal is hopeful that the Applicant can achieve her potential within or without the Respondents organisation."

6. The main thrust of the appeal, as far as we can determine it from the papers, is that the Applicant does not consider that the Respondents had made sufficient efforts to help her overcome her disability. It said, they knew that she was at a substantial disadvantage for the supervisors post but did nothing to address the issue. The Appellant alleges that no effective training has been made available and that the Respondents have failed in their duty to make reasonable adjustments and to incorporate a training that would have helped the Applicant when she applied for the supervisor's post in December 1998.
7. That is the main thrust of the appeal which I have necessarily summarised rather briefly. In our view the obstacle the Applicant faces is that there are very specific findings by the Tribunal both in the decision appealed against and in the earlier decision to the effect that the actions of the Respondents did not amount to discrimination within the meaning of the Act. In particular the Tribunal has found as a fact that there were no adjustments the Respondents could make within the meaning of Section 6 that would have enabled the Applicant to become a supervisor. Since this Appeal Tribunal has jurisdiction only to entertain appeals for errors of law the Appellants contention that the Tribunal has come to erroneous conclusions on matters of fact can only succeed if the Appellant demonstrates to us that the conclusions reached by the Tribunal were such that no reasonable Tribunal could have come to the conclusion that it did. We note in particular that at paragraph 20 of the decision under appeal the Tribunal says this:

"There is no doubt that the Applicant was less favourably treated by the Respondents than other persons by reason of the fact that she was not short-listed for interview for the position of supervisor and that she suffered from a disability within the meaning of the Act. It is therefore incumbent upon the Respondents to provide an explanation for such less favourable treatment. The Tribunal is unanimously satisfied that the Respondents have provided a genuine, truthful, and satisfactory explanation for such less favourable treatment."

That is a finding that this Appeal Tribunal is unable to go behind. We are unable to detect any error of law that would enable this appeal to go forward on the question whether the Tribunal erred in law as regards its decision in relation to the Applicants application to become a supervisor.

8. As regards the victimisation complaint that is also dealt with in the decision as a matter of fact and the Tribunal has come to the conclusion as a matter of fact that that complaint is not made out. Again we are unable to detect any error of law in this case. Having carefully considered the papers in this matter and notwithstanding our sympathy for the Applicant with regard to her disability we are limited by our jurisdiction to errors of law. Having been unable to find any error of law in this case the result is that this appeal must be dismissed.