United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DERMOT HUGHES (of Counsel) Instructed by: South Yorkshire Pensions Authority 18 Regent Street Barnsley S70 2HG
For the Respondent	MR A R BURNS (Acting in Person)


 
SUMMARY

Disability Discrimination

The Employment Tribunal misdirected itself in inferring disability discrimination when the employer, after short listing, had an opportunity to clarify his application form and then add him to the short list.


 


HIS HONOUR JUDGE BIRTLES

1. This is an appeal from the Decision of an Employment Tribunal sitting in Sheffield on 27 September 2004. The Decision was sent to the parties and entered in the Register on 13 October 2004. The Chairman was Mr D P Burton and the members were Mrs C M Walker and Mrs C Popplewell.
2. The unanimous decision of the Employment Tribunal was that Mr Burns's complaint of disability discrimination was well-founded and that the application be re-listed for a remedies hearing on 1 November 2004. There was a subsequent remedies hearing, but we are not concerned with that today.
3. The Decision of the Employment Tribunal is in conventional form. It makes findings of fact in paragraphs 2 through to paragraph 12 and sets out the relevant law in paragraphs 13-14. It then proceeds to apply the law to the facts of the case starting at paragraph 15 and running through to paragraph 28. There is no criticism by the Appellant against the approach adopted by the Tribunal in the first stage of the inquiry applying the well-known guidelines in King v The Great Britain China Centre [1991] IRLR 513. Those guidelines have been refined by later cases including the recent Court of Appeal decision in Igen Limited v Wong [2005] EWCA Civ 142, that does not affect the validity of the approach of the Employment Tribunal.
4. The Employment Tribunal found that there were facts from which it could infer that disability discrimination had taken place. No criticism is made of that by the Appellant. The Employment Tribunal then looked to the Appellant for an explanation and it found in paragraphs 25-26 of its Decision facts from which it inferred that discrimination on the grounds of disability had taken place.
5. Before turning to those paragraphs, it is useful to summarise the facts. Mr Burns is a disabled person having previously served with the Lancashire Constabulary for a period of five years until, unfortunately, in 1984, he had a very serious road traffic accident which led him to suffer from a condition called ataxia. On his discharge from hospital Mr Burns tried very hard to find further employment and made some 400 applications, almost all of them without any success. He has had a number of short terms jobs, but nothing of a permanent nature. Mr Burns has a number of educational qualifications including a BA Honours degree in Economics with an upper second class degree. He applied for the position of settlements assistant with the South Yorkshire Pensions Authority. That post was advertised in a newspaper on 25 February 2004. Mr Burns filled out an application form and along with a number of other application forms, they were looked at by two employees of the South Yorkshire Pensions Authority, Mrs Beverley Clarkson, the operations manager, and a Mrs Susan Warren, the assistant operations manager.
6. The Tribunal set out in its Decision that there were some 16 candidates and there were six essential criteria. Mr Burns was found by them not to satisfy all of those six criteria and, as a result, was not short-listed. The interviews were to take place on 30 March 2004. On 29 March, Mr Burns who had not been informed of the outcome of this sifting exercise, called in at the office of the South Yorkshire Pensions Authority to find out what was going on. The Tribunal make its findings of fact about what happened in paragraph 12 of its Decision when they say this:

"She had a discussion…."

that is Mrs Clarkson

"…which she thought lasted over an hour when she endeavoured to explain to Mr Burns why he had been unsuccessful. She told him that there was insufficient evidence to show that he met the essential criteria relating to communicating with senior officers or the criteria for working accurately with figures. Mr Burns endeavoured to challenge those conclusions by making reference to his previous work experience, but as far as Mrs Clarkson was concerned, the short list had been drawn up, part of the process had been concluded and there was nothing else to be done. Accordingly, Mr Burns was not called for interview and this application was subsequently lodged on 28 April 2004".

7. The Appellant's challenge is to one of the two reasons why the Employment Tribunal inferred that there had been discrimination of the grounds of disability in this case. That is contained in paragraph 25. Before turning to that, we should just refer to paragraph 26 of the Decision which set out the second reason why the Employment Tribunal inferred disability discrimination in this case, which was that it related to the inherent probability of the evidence that both Mrs Warren and Mrs Clarkson had given to the Tribunal as to why they did not believe that the applicant had the ability to communicate clearly and effectively, bearing in mind his work record and his recent degree. There is no challenge to that reasoning of the Employment Tribunal and Mr Hughes, who appears for the Appellant, frankly concedes that if that had been the sole ground on which the Employment Tribunal had made its finding of disability discrimination, he would not be here today.
8. The challenge is to paragraph 25 of the Decision which says this:

"We have considered the circumstances that arose on 29 March. Although we accept that there was merit in the argument advanced on behalf of the Respondents, where there was uncertainty on the face of an application form, it was not practicable for the Respondents to telephone each of those candidates to clarify the issue because, in effect to do so, would lead to those candidates being given benefit of a pre-interview which may be seen to disadvantage candidates who had completed the application form clearly. However, on 29 March, Mr Burns took the trouble to go to the Respondents to find out what was happening. Mrs Clarkson spent a significant amount of time talking to him about his application. It would have been the easiest thing in the world for Mrs Clarkson to have taken that opportunity to clarify with Mr Burns whether he did or did not meet those essential criteria. She had been told that if he did meet those criteria, he was entitled as of right to an interview and we do not understand why she did not take advantage of that opportunity. If she had done so, and if Mr Burns had been able to satisfy her, he could have been fitted in for an interview the next day. We also have in mind the obvious fact that when meeting Mr Burns, the extent and impact of his disability would have been apparent to Mrs Clarkson".

9. Mr Hughes makes two criticisms in his Notice of Appeal of that reasoning of the Employment Tribunal in paragraph 25. The first is that there is an internal inconsistency in the argument of the Employment Tribunal. They first say that they accept there was merit in Mr Hughes's argument before them that where there is uncertainty on the face of an application form, it was not practicable for the Appellants to telephone each of those candidates to clarify any issues which arose from a defective or unclear application form. However, they then go on to say that in this case because Mr Burns came into the office on 29 March 2004 to find out what happened to his application form, the Appellant should have taken the opportunity to clarify any deficiencies or omissions in his application form and if Mrs Clarkson had done so, he would have clarified any omissions and she would have accordingly have arranged for him to be added to the short list and interviewed on the following day, 30 March 2004.
10. It seems to us that the Employment Tribunal was in error. To have done what the Employment Tribunal suggest would have been to give Mr Burns an advantage over any of the other candidates who were also not short listed and singled him out for preferential treatment which would not have been available to any one who had not come into the office and, indeed, as we understand it, Mr Burns was the only disabled candidate and that would have given him preferential treatment over all of those other candidates who were not on the short list. In our judgement, the Employment Tribunal was in error on this ground and therefore, the appeal is allowed in respect of paragraph 6.2 of the Notice of Appeal.
11. The second ground in the Notice of Appeal is at paragraph 6.3 of the Notice of Appeal and it is that the Employment Tribunal failed to have adequate regard to the Decision of a Sheffield Employment Tribunal in case number 2802316/03 involving Mr Burns and Barnsley Metropolitan Borough Council. A copy of that Decision has been provided in the papers before us and was provided to the Employment Tribunal in this case. Albeit it has some similarities on the facts, we cannot see how the Employment Tribunal in this case was in error in not referring to the Decision of that case involving Barnsley Metropolitan Borough Council or in not following it. The Decision of one Employment Tribunal is not binding on another Employment Tribunal; it may be of persuasive value but there is no principle of law which requires an Employment Tribunal to cite the Decision of another Employment Tribunal because it has been referred to it by one or both parties. We can see no error of law here. It follows that we allow the appeal on paragraph 6.2 of the Notice of Appeal. We have considered the question of disposal. It is quite inappropriate for us to make a decision. We have not heard the evidence. It would be wrong in our view, given the conclusion that the Employment Tribunal in this case reached below, to remit the case to the same Tribunal and it follows therefore that the only proper disposal of this case is to remit it to a fresh Employment Tribunal for a re-hearing.