MR G F SMITH v SABRE CLEANING SERVICES LTD MRS J BRUCE [2002] UKEAT 1190_00_2204

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1190_00_2204Case No Appeal No. EAT/1190/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G F SMITHAPPELLANTSABRE CLEANING SERVICES LTD MRS J BRUCERESPONDENT
Before
Her Honour Judge A Wakefield Miss D Whittingham Mr G H WrightDate 22 April 2002
[1]APPEARANCES For the Appellant MR N FAIRWEATHER (Solicitor) Messrs Harman & Harman Solicitors 10 Station Road West Canterbury CT2 8AN For the Respondents MISS N ANDERSON (Consultant) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5BP JUDGE A WAKEFIELD: This is an appeal by Mr George Smith against the dismissal by an Employment Tribunal sitting at Ashford in Kent of his application based on discrimination on grounds of disability. The grounds of the appeal are three-fold. Firstly it is argued that the Employment Tribunal was wrong to find that no discrimination was suffered by the Appellant by reason of the failure of the Respondent to process his job application in the same way as other Applicants for jobs at the same time who had no disabilities. Secondly it is said that the Employment Tribunal misdirected itself in the approach to and the use of evidence as to the employment of other people with similar disabilities to that of the Appellant and thirdly that the Employment Tribunal failed properly to apply the Disability Discrimination Act 1995 to the complaint of the Appellant as to the manner in which the Appellant, through the medium of his wife, was treated in two telephone calls on 23 June 1999 with the Second Respondent.[2]The brief background facts to the Application were that the Appellant, a full time panel beater and a man profoundly deaf from birth, applied to the First Respondent for a job as a cleaner. He filled in an application form which was, on an unknown date, taken to the First Respondent's premises by the Appellant's son, who already worked there as a cleaner. The form was not processed in the formal way. As to that, the Employment Tribunal said in its decision, which was promulgated on 10 August 2000, at paragraph 11:
"We looked firstly at the fact that Mr Smith's application form had not been processed as it should have been. The Respondent could offer no explanation for that other than that at the time that it was submitted, a new and inexperienced employee was dealing with such application forms. There was no evidence before us either of non-disabled applicants who were offered interviews without having to ring in and remind the company of their existence or of non-disabled applicants who did have to ring in for that purpose. We are not prepared to draw an inference on the evidence before us, either that the Applicant was less favourably treated than others, or that if he was so treated, it was for a reason which related to his disability."
The reference there to having to "ring in" was to the fact that Mrs Smith, on behalf of the Appellant, had chased the application through making telephone calls and leaving messages. These findings of the Tribunal in paragraph 11 are criticised in the appeal as being perverse or based on no evidence. Having been taken at length to the evidence which was before the Employment Tribunal, we can find no substance in those criticisms. The findings are in accordance with the evidence and the Employment Tribunal decision not to draw an inference of less favourable treatment on the basis of those findings cannot be said to be perverse. The first ground of appeal therefore fails.[3]The second ground arises from what the Employment Tribunal express as their findings as to the content of the disputed telephone conversation on 23 June between the Appellant's wife and the Second Respondent, who was the First Respondents' contracts manager. In Paragraph 7 of the decision the Employment Tribunal said this:
"We have preferred the evidence of Mrs Bruce about what was said during the course of these conversations for two reasons:- (a) Mrs Smith's account does not appear convincing in some places, for example Mrs Smith gave evidence that when offered an interview by Mrs Bruce she said "
What's the point of giving him an interview when you've told me that the policy is that you don't take deaf people on?" and that Mrs Bruce replied "That's right, but you can still come along." (b) The evidence of Mrs Bruce is corroborated, we found convincingly, by Mrs Dougal who heard Mrs Bruce's side of the conversation and was adamant in giving evidence that on several occasions Mrs Bruce said to Mrs Smith "Unless he comes for an interview, we cannot decide whether he would be suitable for a job" or words to that effect. (c) Since Mrs Smith concedes that at the end of the conversation an interview was offered to her husband by Mrs Bruce, it is inconceivable that Mrs Bruce would have done that whilst in the same conversation stating that the company did not employ deaf people. (d) The company actually employs some people with hearing difficulties, although none who is profoundly deaf." It is argued on behalf of the Appellant that this last finding, in sub-paragraph (d), is a use of statistical evidence going beyond the resolution of the credibility of Mrs Bruce and Mrs Smith as to the conversation on 23 June 1999 and is placed in the Tribunal decision as a plank in their findings as a whole in favour of the Respondent's case. We found no basis whatsoever for such a wider interpretation of what is clearly a reason, albeit one of four rather than the two specified in the introduction to paragraph 7, relating only to the factual findings as to what truly happened on 23 June.[4]Finally the decision is criticised as failing properly to recognise that disability discrimination can occur at the earliest stage of a job application when the first tentative steps are made by a perspective employee with a disability. It is quite clear that sections 4 to 6 of the Act and the Code of Practice made pursuant to it recognise and provide for the outlawing of such discrimination. The Employment Tribunal found in paragraph 12 of the decision that in the telephone call on 23 June Mrs Bruce was abrupt on the telephone with Mrs Smith and they then went on as follows:
"Although offering Mr Smith an interview, Mrs Bruce pointed out the difficulties that his disabilities might pose were he to be taken into employment. We find that Mrs Bruce would have adopted the same manner with anybody who had been put through to her seeking employment. She was not the person responsible for arranging interviews: she told Mrs Smith that early on in the first conversation, and she clearly considered that another employee should be dealing with the call. In pointing out the difficulties which could arise from the employment of a profoundly deaf person, it cannot be said that Mrs Bruce would have said anything similar to a non-disabled applicant. These comments did not, however, amount to less favourable treatment because they did not deter the Respondent from inviting the Applicant to an interview."
We are satisfied that the Employment Tribunal was there referring to a genuine offer of an interview at which any difficulties presented by the Appellant's disability could be discussed and any necessary adjustments considered. Had the Employment Tribunal taken the view that the offer of an interview was spurious or a mere sham, to go through the motions before rejecting the Appellant as an employee, we have no doubt that the Employment Tribunal would not have concluded as they did in that paragraph. The finding was one they were entitled to make on the evidence and it cannot be said to be perverse.[5]We therefore find that there is no error of law in the conclusions of the Employment Tribunal and the appeal is dismissed.