United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TOM BROWN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


HIS HONOUR JUDGE ANSELL

1. In this preliminary hearing, which was set down pursuant to an order of Judge Peter Clark, Mr Sahota seeks leave to proceed to a full hearing in respect of an Appeal against a decision of Employment Tribunal in Bury on 27 March 2003.
2. He has, today, been ably represented by Mr Brown of ELAAS, in respect of one discreet issue to which we shall make reference in a moment.
3. The background to the case was that the issues of whether or not he had been discriminated on the grounds of race or disability, on the grounds that he was not short listed for the post of Corporate Information Security Manager within the Finance and Information Technology Department of the Respondent Council.
4. He applied for a position which was advertised and included criteria in relation to 5 years responsibility for data protection issues in a large public facing organisation and experience in responsibility for data protection in a large public facing organisation over the last 5 years. Five candidates applied, four of them were shortlisted and were adjudged to meet the central criteria in respect of experience. The process was dealt with by Messrs Cordle and Burr and the whole process was quite minutely examined by the Tribunal in relation to how the process was carried out. They went into the criteria of the four other candidates and, it is right to say, that they particularly highlighted the fact that one of the candidates, described as candidate A, was allowed through although not having met the precise criteria. That was dealt with in the conclusions of the Tribunal and they found that Candidate A did not meet the essential criteria since he only refers to four years experience within data protection.
5. The Tribunal therefore took the view that, potentially, there was a different treatment as between Mr Sahota and candidate A, but accepted, in paragraph 13, the explanation for the difference in treatment and how Messrs Cordle and Burr approached that. They also went into the Council's policy with regard to appointment of staff from ethnic minority backgrounds and the fact that Mr Burr and Mr Cordle had been trained in recruitment and selection, and in their conclusions in paragraph 16, they take the view that they were satisfied that the reason for his rejection on the short list was his "complete inability to prove any evidence that would allow the Respondent to the conclusion that he came close to matching experience criteria".
6. They then moved on to dealing with the claim under disability discrimination and accepted that Mr Sahota did indeed have a disability, particularly, an eyesight problem, but also, asthma, although in this hearing it was only the eyesight problem that was referred to, they asked themselves the correct question in paragraph 19, as to what reasons were advanced for the difference in treatment. They accepted that the difference in treatment was to do with experience rather than to do with disability and, in particular, they reminded themselves that the successful candidate was indeed disabled. In paragraph 20, one comes to the section about which Mr Brown has complaint and they said this

"During the course of this Hearing, Mr Sahota sought to advance an argument on the grounds of the Respondent's failure to make a reasonable adjustment. This was on the basis that the criteria selected for the person specification in respect of responsibility for Data Protection in large public body was harder for a person with a disability to meet. This amounted to an argument that there was a section 6 duty to make adjustments because an arrangement made by or on behalf of the employer had placed Mr Sahota at a substantial disadvantage. In April of 2002 Mr Sahota consented to an order which described his complaint under the Disability Discrimination Act as arising under sections 4 and 5(1) and (2). No mention was made of section 6. There was nothing in Mr Sahota's witness statement which amounted to evidence that this arrangement placed disabled people at a substantial disadvantage and, ultimately, Mr Sahota agreed to proceed on the basis that his case was that he had been treated differently by others in that he was not selected because of his race and/or disability. Despite this, in his closing submission, Mr Sahota again made reference to a failure to make reasonable adjustments. On this occasion he said that he was placed at a substantial disadvantage by the respondent's approach to short listing. Mr Sahota was reminded that he was not bringing his case on the basis of a failure to make reasonable adjustments and the Tribunal were not prepared to consider a case being adduced in that matter at a late stage."

7. The complaint made is that, at the outset in April when the issues had been determined, section 6 issues had been included. This is because section 5(2) is the section which, as it were, brings in section 6. Section 5(2) provides an employer also discriminates against a disabled person if he fails to comply with a section 6 duty imposed on him, and therefore the reference to section 5(2), Mr Brown argues, by implication, includes section 6. We can see the strength of that particular argument. We do not, of course, have any evidence as to what passed between Mr Sahota and the Chairman in relation to that issue, other than we are told today that Mr Sahota, as it were under instructions, decided not to pursue that particular matter. Whilst technically there is a complaint to be raised in relation to what the Tribunal have said in that paragraph about the inter relation between section 5 and section 6, the fact remains that that complaint to us is of a very technical nature and there does not appear to us to be any evidence to support such a claim and indeed no prospect of any success at all in advancing a case under section 6. It would require Mr Sahota to be able to show that the selection criteria, particularly the data protection criteria, put him, with his particular disability, at a disadvantage, in other words presumably because of his disability he had not been able to build up that particular experience that those without a disability were able so to do.
8. We remind ourselves that it was a disabled person who actually achieved success in the post, although that was candidate A who, in fact, only had four years relevant experience. Further, as the Chairman had pointed out, his witness statement did not set out any evidence as to how he was placed at that disadvantage. We are told today by Counsel that Mr Sahota hoped by skilful cross examination to be able to advance a case that he was to be placed under that disadvantage. But, for our part, we cannot see that there was any chance of success as far as that part of the case was concerned, and it seems to us that the Chairman was perfectly right to exercise such discretion as he did to exclude that particular part of the case from consideration.
9. Accordingly, we would not allow any Appeal to proceed on that basis or, indeed, on the wider basis which Mr Sahota has argued before us there was a failure on the part of the Tribunal to take into consideration all the evidence that was placed before them. We are quite satisfied, having considered his Notice of Appeal and the oral submissions he makes before us that all of the issues with regard to how the criteria were investigated by the selection committee were fully investigated by the Tribunal and they came to a very careful and reasoned decision and we have no reason to seek to interfere with that and accordingly we would refuse leave for this matter to proceed to a full hearing.