MS P A WALLWORK v HM LAND REGISTRY [2001] UKEAT 138_01_1506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 138_01_1506Case No Appeal No. EAT/138/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS P A WALLWORKAPPELLANTHM LAND REGISTRYRESPONDENT
Before
His Honour Judge Peter Clark Mrs A Gallico Mr N D WillisDate 15 June 2001
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK The Appellant, Ms Wallwork, has sole responsibility for the care of her terminally ill father. In these circumstances she applied for an adjournment of this Preliminary Hearing fixed for today. That application was refused by the Registrar. By letter dated 12 June she has renewed her application for an adjournment and has sent written submissions in the event that her application fails.[2]We also refuse the application. Whilst we have considerable sympathy for the position in which the Appellant finds herself, it is not in the interest of justice generally for this Appeal to be adjourned on a open ended basis, nor is it fair to the Respondent, who wishes to know whether this litigation is at an end or whether they must prepare for a full appeal hearing.[3]The relevant facts found by the Liverpool Employment Tribunal, sitting on 22 September 2000 to hear the Appellant's complaint of unlawful disability discrimination, contained in their decision promulgated with Extended Reasons on 29 November 2000 dismissing that complaint, are as follows.[4]The Appellant is a disabled person. She suffers from long-standing osteo arthritis and related conditions.[5]In October 1999 the Respondent began the process of recruiting 16 Registration Officers to work at their offices in Birkenhead.[6]The Appellant was one of 740 candidates for the posts. She completed the standard application form.[7]The recruitment process operated by the Respondent involved the following stages. Stage 1; the posts are advertized and those expressing interest are sent an application from which, in addition to asking for the candidate's general experience and qualifications, asked 2 questions, which are set out in the Appellant's written submissions. They were:
"4(e) Think of a time when you worked as part of a team to achieve a common goal. Describe the situation, say what action you took, and state the outcome. 4(f) Think if (of and) a time when you had to deal with conflict (for example, a time when someone had different views to your own). Describe the situation, say what action you took, and state the outcome."
[8]The Tribunal found as a fact (reasons Paragraph 8(v)) that those questions were specifically designed to identify the competencies required for the appointment (including teamwork and flexibility in conflict resolution) without reference to previous experience or formal qualifications. The Appellant was, the Employment Tribunal found, if anything over-qualified and certainly sufficiently qualified for the job.[9]At this first stage each application form was marked by a trained examiner who had no other knowledge of or information about the candidate.[10]The Appellant was one of 622 candidates who failed to pass this first stage sift.[11]Stage 2 involved a number of written tests from which disabled candidates were exempted from passing in the sense that they were guaranteed a third stage interview if they passed the first stage.[12]In the event 54 candidates, including 8 disabled people were invited for 3 rd stage interview. Ultimately 23, including 1 disabled candidate were offered employment.[13]The Appellant presented her Originating Application to the Employment Tribunal on 28 February 2000. She alleged that the selection procedure was faulty and discriminated against disabled people. The claim was put under Section 5(2) of the Disability Discrimination Act 1995.[14]The Employment Tribunal found that the procedure used, in particular the 2 questions posed at the first stage sift did not discriminate against disabled people. No adjustments were necessary to allow the Appellant to answer those questions.[15]Far from being at a disadvantage, any disabled candidate who passed the first stage had an advantage over other candidates. He or she went straight to a stage 3 interview.[16]In these circumstances the Employment Tribunal found that the Appellant's complaint was not well-founded.[17]In this appeal the Appellant submits first that the Employment Tribunal erred in law in failing to consider the relevance of the 2 questions in the application form to the advertized job. She refers to paragraph 5.21 of the Code of Practice.[18]We cannot accept that submission. The Employment Tribunal found as a fact that the questions were specifically designed to identify the competencies needed for the post (reasons. Paragraph 8(5)).[19]Secondly, she contends that the Employment Tribunal having found that she was qualified for the post, it must follow (resipsa loquitur) that she ought to have been offered an interview. The fact that she was not demonstrates that she was unfairly disadvantaged.[20]Again we cannot accept that submission. The Employment Tribunal found that her disability did not disadvantage her in answering the 2 questions. She failed the test and that is why she did not progress to stage 3. Her disability was irrelevant to that failure.[21]Finally, she has referred us to the purposive construction to be applied to the provisions of the 1995 Act, based on observations made in the Court of Appeal in Clark v Novacold [1999] ICR 951 and by Judge Wilkie QC in Murray v Newham CAB (EAT 1096/99). We accept that approach, but we do not think that it assists the Appellant in this case. Put simply, she lost on the facts. The Employment Tribunal found that the Respondent's recruitment procedure did not place the Appellant at a disadvantage in comparison with persons who were not disabled.[22]In these circumstances we shall dismiss this appeal.