United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr James Greig, In Person 13 Broom Gardens KIRKCALDY KY2 6YZ
For the Respondents	Miss M Kerr, Solicitor Of- Messrs Harper Macleod Solicitors 8 Melville Street EDINBURGH EH3 7NS

SUMMARY
DISABILITY DISCRIMINATION

ET's finding that a vacancy had been filled by the time the Applicant applied for it would not be overturned and so there was no evidence of less favourable treatment related to the Applicant's disability.


 


HIS HONOUR JUDGE McMULLEN QC:

1. This case is about the application of the Disability Discrimination Act 1995 to a candidate for employment. The judgment represents the views of all three members who pre-read the relevant papers. We will refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal, sitting here in Edinburgh, Regional Chairman, Mrs S Simon, on 23 July 2003, registered with extended reasons on 19 December 2003. The Applicant represented himself as today and the Respondent was represented by Miss Kerr, solicitor.
3. The Applicant claimed that he had been discriminated against contrary to the Disability Discrimination Act 1995 by the Respondent when he applied for a position as a security guard. The Respondent denied discrimination.

The Issue

4. The essential issue was defined by the Employment Tribunal in the following terms:-

"In his originating application the applicant complained that the Respondent had treated him less favourably than another for a reason related to disability in connection with recruitment to the post of security guard, contrary to the provisions of Section 5(1) of the Disability Discrimination Act 1995 (DDA). It was conceded by the Respondent in this case that the applicant was a disabled person for the purposes of the DDA 1995."

"The applicant's complaint was received at the Central Office of Employment Tribunals on 10 December 2002. In his originating application he made reference to an application for a post with the Respondent as a security officer which he had applied for on 17 September 2002. He complained of discrimination occurring between 17 September and 21 November 2002 with regard to this application. However he also referred in his originating application to making earlier applications for employment with the Respondent on 21 December 2001 and 22 July 2002. During the hearing the Chairman sought clarification of whether the applicant sought to bring a complaint in relation to either of these applications, giving rise to the issue of time bar requiring to be explored or whether his complaint was focussed on his application of 17 September, reference being made to earlier applications simply as part of the history of events which the applicant believed supported his contention of discriminatory treatment in respect of the September application. The applicant confirmed that he was not relying upon the applications made in December 2001 and July 2002 as giving rise to separate acts of discrimination in respect of which he sought compensation."

5. It is clear the issue was narrow. The Tribunal dismissed the complaint and also a complaint of sex discrimination which the Applicant had withdrawn. The Applicant appeals. Directions sending this appeal to a full hearing were given in Chambers by the Honourable Lord Johnston.

The Legislation

6. The relevant provisions of the legislation are set out:-

"4(1) 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."

5 Meaning of 'discrimination'

(1) For the purposes of this Part, an employer discriminates against a disabled person if-

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, an employer also discriminates against a disabled person if-

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified

(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."

The Tribunal directed itself by reference to those section and to one authority which was put before it, Jones v Post Office [2001] IRLR 384.

The Facts

7. The material facts are recorded by the Tribunal as follows:-

"The Respondent is a company which manages shopping centres. It provides centre management, security, cleaning and maintenance services at centres across the country. Mr Mckay has been in the employment of the Respondent for around 17 years and has managed the Kingdom Shopping Centre in Fife on behalf of the Respondent since 1986. Mr Forrester is the operations manager at the kingdom Centre, having previously been employed for around 7 years as the security supervisor at that site.

Both Mr Mckay and Mr Forrester have received disability awareness training. Mr Mckay has been involved with a charitable company for about 10 years which is called Fife Shop Mobility.

Staff turnover levels at the Centre fluctuate. The Respondent uses the Job Centre network to fill posts. It notifies the Job Centre of vacancies which they advertise."

8. The first applied for a post in December 2001 and then in July 2002. There was a very high turnover of security guards and Mr Forrester was keen to employ someone who would remain with the Respondent for some time rather than treating the job as a stop-gap. The Applicant was not taken on.
9. Later, the Applicant submitted a further application form and the Tribunal found this:-

"The applicant reapplied for the post of security guard with the Respondent in September. It was the same vacancy in respect of which he had made the application in July. His application form was in exactly the same terms as the form he submitted in July. This form is dated 17 September by the applicant and was received on 19 September. By that time both vacancies (i.e. the one actually advertised and the other one which had arisen) had been filled. For that reason neither Mr Forrester nor Mr Mckay considered the terms of this form. This is supported by the fact that the form bears no markings on it which would normally be present if it had been considered for shortlisting. In accordance with normal practice the applicant was not notified that his application had been unsuccessful."

10. The Respondent's initial response was unhelpful and Mr McKay had apologised to the Applicant during the course of his evidence, for what was a discourtesy. The Tribunal turned to the issue which had been defined for it, and found this:-

"The first matter which the tribunal considered was whether the applicant had been less favourably treated than others for a reason connected to his disability. In making that comparison the comparator is, in essence, someone who is not disabled. The tribunal is concluded that the applicant had not been less favourably treated than another for a reason connected to his disability. It was satisfied that someone who was not disabled would have been treated in exactly the same way as the applicant. The reason the applicant was not considered for the post he applied for in September 2002 was because it had already been filled by the time he applied. On one view of it the matter might rest there."

The Applicant's case

11. The Applicant submitted a lengthy Notice of Appeal which is carefully argued and sets all of the relevant points. We are grateful to him for using that as the vehicle for his submissions since he engagingly told us that to add further oral submissions might confuse us. We have read them equally carefully.
12. The principal contention is that the issue, which the Tribunal set itself to decide, was not the relevant issue and the Tribunal's finding on the issue itself is not one which was open to it. The decision itself contained a number of factual errors and a misdirection in law relating to the judgment of the Court of Appeal in Clark v TDG t/a Novacold [1999] IRLR 313.

13. The Tribunal erred in failing to draw inferences pursuant to the guidelines given in Anya v University of Oxford [2001] ICR 847 at paragraphs 7, 8 and 9 which contain the extract of the judgment of the EAT in Qureshi v Victoria University of Manchester [2001] ICR 863.

13. The decision of the Tribunal is not Meek compliant, (Meek v City of Birmingham District Council [1987] IRLR 250 CA) for it fails to give reasons and fails to set out clearly the reasoning of the Tribunal. In the light of that, the decision of the Tribunal contains errors of law and should be set aside.

The Respondent's case

14. The Respondent, in a short skeleton argument submitted by Miss Kerr, contends that, once the Tribunal had defined the issue, all it had to do was to make findings of fact on that issue. There was no vacancy at the time the Applicant applied and so the reason for his treatment by the Respondent was that it did not have a vacancy and that it had nothing to do with his disability. If that is upheld by the Appeal Tribunal, says Miss Kerr, nothing further needs to be said about this case.
15. Nevertheless, she made a number of other points by responding to the Applicant's very detailed 16 points in his Notice of Appeal. These were that there was no issue relating to reasonable adjustments under section 6 of the Act, that the issue of the amendment of the Notice of Appearance had been determined in advance of the hearing and that the Applicant was raising challenges to findings of fact, and/or was making allegations that the Tribunal had failed to set out fully its reasons, as to which the Respondent pointed to places in the reasons of the Tribunal where it had given cogent arguments.

The legal principles

16. This case could be resolved without reference to detailed legal principles, since the essential issue was whether or not there was a vacancy, for which the Applicant applied and was disappointed. However, the Tribunal did address the legal principles under section 5 of the Act and considered the guidance in Clark v Novacold. It is the task of the Tribunal to consider whether the Applicant was treated less favourably than others for a reason relating to his disability. The comparator is a person who does not have a disability. The Tribunal must also give reasons for its decision: see Meek (above) and High Table Ltd v Horst & Others [1997] IRLR 513 CA.

Conclusions

17. We accept the submissions made to us on behalf of the Respondent and reject the Applicant's submissions in his ground of appeal and his oral argument today.
18. First, we accept as correct, the depiction by the Tribunal of the issue which it had to deal with, as we have set out above. The earlier applications made by the Applicant for employment may have been relevant to determining, in a borderline case, or where a prima facie case has been made out, whether an inference should be drawn from the treatment of his current application. The proper approach to those earlier applications was set out by the Tribunal. In this case there was no need for the Tribunal to draw inferences pursuant to the judgment in Anya and Qureshi for the Tribunal had not crossed the threshold of determining the Applicant's less favourable treatment.
19. Once the Tribunal had decided, as a matter of fact, there was no job, that in itself is a complete answer, in our judgment, to the claim that he was treated less favourably than others. All others would have been treated in the same way. Thus, we see no error of law in the Tribunal's description of the single issue it had to determine, and, in its approach to it, once it determined the relationship between the application for the vacancy and its filling.
20. The Applicant had the opportunity to make complaints about the earlier applications, in which case, he would be met by a response that the claims were out of time. But he made it clear to the Tribunal that he was concerned only with the application to employment made on 17 September 2002 as a matter of substantive complaint.
21. That, therefore, disposes of the case for we see no error in its application of Clark v Novacold to that finding of fact. Out of deference to the arguments which have been raised by the Applicant, we simply say that we accept Miss Kerr's submissions in her skeleton argument, point by point. We do not consider there was any injustice in the decision to allow the amendment to the Notice of Appearance, which had been made prior to the hearing, and we accept her contention that most of the grounds of appeal relate to findings of fact. The Tribunal is to be acquitted of the charge that it gave reasons which were not Meek compliant.
22. In addition to the 16 grounds of appeal, all of which we dismiss, the Applicant raised 7 points which he said were material omissions. In our judgment, there is no error of the Tribunal in the approach to what were essential findings of this case, and we dismiss all of the allegations relating to material omissions.

Delay

23. That leaves, finally, the criticism made by the Applicant in his epilogue, as he put it, which is as follows:-

"I am of course entitled to an impartial hearing as per Article 6 of the Convention. I am also minded of the delay in producing Extended Reasons and the Tribunal's setting aside its own adopted standard. I ask the Tribunal to send the case back to a freshly constituted, impartial, reasonable Tribunal to be determined upon the merits: in accordance solely with the guidelines in Zafar/King as per my pleading in IT1."

What he is referring to is the judgment of the EAT, Mr President Burton and Members, in a series of cases known as Mtize and Kwamin [2004] IRLR 516.

24. The impact of the decision in those cases is that an Employment Tribunal will be culpable if without explanation its reasons are not published three and a half months after the last oral hearing, or the last written submission to it. In this case, we have been told that the Tribunal sat for a day, and on the following day its decision dismissing the Originating Application, was published to the parties but the extended reasons were not published until 5 months later. We have had no explanation for that and the Applicant has told us that he did chase up the Tribunal on a number of occasions. He was entirely justified in his concern.
25. The ruling in Mtize requires something more than mere delay for the Tribunal decision to be set aside. It is what might be described as "delay-plus". It follows from our approach to the arguments in the grounds of appeal, that there is no material finding of fact which can be demonstrated to be an error, and in respect of which it might be said that the error was caused by faded memory. Thus the decision cannot be set aside simply by reason of this delay.
26. A delay of 5 months is unacceptable, and requires an explanation to be given. The EAT ruled in Chinyanga EAT/300/02 that there was no reason for excluding Employment Tribunal Chairmen from the duty to provide reasons within 3 months. Such duty, applies to all judicial office holders in England and Wales, following rulings by the Lord Chancellor and the Lord Chief Justice. The position has now been made clear in the Mtize judgment and applies to Employment Tribunals in Great Britain, allowing an extra 2 weeks for the logistics of cases to be heard and discussed by a majority part-time lay Bench.
27. As we have said, no error has been identified which makes the judgment unsafe as a result of such delay, and the delay is mitigated by the fact that the Tribunal made a decision, either on the day of the hearing, or the day after and communicated it to the parties. But the Applicant is quite correct to have raised that as a matter which might have affected his Convention right to a fair hearing within a reasonable time.
28. We echo the judgment of the EAT, Lord Johnston, Mr Ramsden and Miss Lenaghan, made on 29 June 2004 EATS/0021/04 in respect of Mr Greig's earlier complaint of discrimination by Fife Council, where Lord Johnston said this:-

"We do not consider this appeal has any substance. The appeal is dismissed."

We would like to thank both the Applicant and Miss Kerr for the measured way in which they have put the points to us today.