United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR G D BEALEY (Representative) Messrs Watson Esam Solicitors 16 Paradise Square Sheffield S1 1TY


 


HIS HONOUR JUDGE J R REID QC

1. This is the Preliminary Hearing Ex Parte of an appeal by Paul Gator and Wayne Seabridge against a decision by an Employment Tribunal at Shrewsbury which decided by a decision dated 7 February 2001 that the Applicants should not have leave to amend their ET1 form and that the Respondent to the appeal, Construction Projects Training Ltd, was not the employer of either of the Applicants. The points which have been taken on behalf of the Appellants were that the application to amend the ET1 by way of adding a claim under the Human Rights Act should have been allowed and that there should have been a finding that CPT would be liable for disability discrimination against the two applicants.
2. So far as the first of the points is concerned, it is conceded by the Appellants that it would only be appropriate to grant leave to amend if it can be said that the proceedings were proceedings instigated by a public body. We were referred to Section 22 of the Human Rights Act, then on to Section 7.
3. The difficulty about the submissions which were made in this case is that the claimants have to show that the proceedings that they are seeking to bring by amendment were brought at the instigation of a public authority. The argument in that regard is this; that CPT Ltd is a company wholly owned by the South Birmingham College, that South Birmingham College is a publicly funded college and that there is the funding of South Birmingham College and of CPT Ltd by the taxpayer, that the provision of education is a function of a public nature and that therefore CPT Ltd is a public authority. The argument then goes on to say that because CPT Ltd, through a Mr Bowden, who for present purposes is to be assumed to have been an employee of CPT Ltd, caused Mr Gator and Mr Seabridge not to be engaged or employed by another person, that is to say Mr Trowers, therefore CPT Ltd instigated these proceedings.
4. That reading requires a remarkably broad interpretation of the word 'instigate'. In our judgment it cannot be said that merely because a public authority does something which leads somebody else to want to sue it, that public authority can be said to have instigated the proceedings. In our judgment, put quite simply, this point is a complete non-runner. In the circumstances the Employment Tribunal were manifestly correct not to allow the amendment.
5. The second question is as to CPT's potential liability for the alleged disability discrimination against the two claimants. So far as that is concerned, the two claimants were never employed by CPT. CPT was engaged in giving them a certain amount of training one day a week. Again for these purposes, although the Tribunal's view was to the contrary, we are prepared to assume that Mr Bowden was an employee of CPT.
6. What is said is that when one looks at Section 4(1) of the Disability Discrimination Act, upon which the claimant seeks to rely, this shows that CPT were, or at least might be, liable to these two youths for discrimination because it is said Mr Bowden's recommendation, acted upon by Mr Trowers, to dismiss the boys from their training contracts, which involved four days of work a week and one day in college, was something for which CPT could be liable. The wording of Section 4(1) is:

"It is unlawful for an employer to discriminate against a disabled person –

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

(c) by refusing to offer, or deliberately not offering, him employment."

It is said that at the end of the training contracts these two youths would have been employed by Mr Trowers but for Mr Bowden's recommendation, which arose out of allegations as to their attitude and as to their timekeeping, on the merits of which nobody has as yet heard any evidence. It is submitted that because Mr Bowden was an employer and because CPT was providing some training to these boys, notwithstanding the prospective employer was Mr Trowers, there is liability on CPT under Section 4(1) of the Act.

7. We have been entirely unable to follow the logic of this argument. We invited Mr Bealey, who has represented the Applicants, to read to us Section 4(1), inserting the names of the persons to be made liable. That exercise was a complete failure. Mr Bealey refers repeatedly to Section 58 pointing out that a principal is liable for the acts of his agent, or an employer for those of his employee, but that did not seem to us to be of any assistance at all. It was never suggested that Mr Trowers was to make arrangements for the purpose of determining to whom he would offer employment, or that he discriminated against these boys in the terms in which he was offering employment, or that he discriminated against them by refusing to offer, or deliberately not offering, employment.
8. The suggestion that somehow CPT should be liable in circumstances where it was never intended that it should be the employers of these youths is in our view one which is completely unarguable. The appeal proceeds on total misunderstanding of the wording of Section 4(1). It is as hopeless an appeal as I have come across in this Tribunal. It should go no further and will be dismissed.