MS M SHAH v LONDON BOROUGH OF BRENT [1999] UKEAT 1451_98_0812
[1]APPEARANCES For the Appellant MR S BARBER (Representative) Regional Officer UNISON 1st Floor, Congress House Great Russell Street London WC1B 3LS For the Respondent MISS L CHUDLEIGH (of Counsel) Instructed by: Ms M Thompson Legal Personnel & Recruitment Services London Borough of Brent Chesterfield House 9 Park Lane Wembley, Middx HA9 7RW HIS HONOUR JUDGE D PUGSLEY This is a case in which the Appellant seeks to appeal the decision of the Industrial Tribunal. We want to say right away that we have already dealt with the issues as far as the question of the claim under the Disability Act and we acknowledge that there are concerns about the fact that this is now academic in the sense that the Appellant was not working in another area. But we were concerned that Miss Shah, who obviously suffers from a disability had not had her position fully dealt with. On the other hand we were equally concerned about the emotional trauma of the Tribunal proceeding and that we make no secret of the consequences, also to the public funds, to litigate a matter which was now academic. Therefore, there was an agreement between the parties, that Miss Shah agreed to withdraw her complaint under the Disability Discrimination Act on the Respondents' undertaking to use their best endeavours to provide her with an explanation by 26 th January 2000, as to why there was no review of the parking arrangements before she left that particular site on March 1998 and if appropriate to tender an apology. That was agreed by both parties.[2]We now deal with the second matter which concerns the issue as to pay protection. We say at the outset that we should be very brief, because Mr Barber, if we may say so correctly and his client correctly and wisely have withdrawn this part of the appeal. It focused on the fact that in paragraph 28 of their extended reasons the Tribunal made a comparison with three team managers, none of whom were the alleged comparators of Evans & Clark. Mr Barber's closing submissions before the Employment Tribunal did put Messrs Evans & Clark white females as people who were given permanent protection on higher grade F, and those are referenced to the Appellant's witness statement at paragraph 58, where this adaptation is set out. Mr Barber's point, before the preliminary hearing, was quite simply that the Tribunal had failed to address a material aspect to the complaint that is a comparison to the Appellant and Evans & Clark. I have the advantage of sitting with members who have had experience of these matters, and I hope, politely but forcibly, they have put to Mr Barber that these are very different issues, referenced to the grade 5, having permanent protection is really a description of what was the reality. The reality was that these two were promoted to different jobs. Incidently, that gave them the contractual right to a higher salary than they had in their old jobs, but that is a very different basis of comparison than permanent or temporary job salary protection. Discrimination is the application of different rules to comparable situations or the application of the same rules to different situations and in our view it is a different situation where you are promoted then that which exists in salary protection and to his credit Mr Barber and his client accept that that really is not sustainable. What we did not want to happen is this matter to be remitted to a Tribunal at great cost and for it he found that in fact there was no basis of comparison between the Applicant and these two other employees. In the light of his considerations this matter has been withdrawn.[3]This reflects well on the good sense of both the Appellant and her adviser. We are grateful that Ms Chudleigh has exercised what we consider the wholly proper self denying ordinance not to apply for costs. Possibly she will be within the ambit of the rule, but it would have been an inappropriate application and we hope that it can now be built a working relationship between the Appellant and the local authority. We have recognised that Ms Shah had real reasons for feeling hurt and humiliated on the parking issue. We have not made any finding about it and it would be inappropriate for us to do so, but we do say very clearly that we can understand her position as far as the parking is concerned. By consent we dismiss this appeal on the withdrawal by the Appellant.