MR V M S BRUCE v 1) MR S CAVALIER 2) THOMPSONS SOLICITORS [2002] UKEAT 1283_00_1106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1283_00_1106Case No Appeal No. EAT/1283/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR V M S BRUCEAPPELLANT1) MR S CAVALIER 2) THOMPSONS SOLICITORSRESPONDENT
Before
His Honour Judge D M LevySir Gavin LairdDate 11 June 2002
[1]APPEARANCES For the Appellant THE APPELLANT In Person For the Respondent MS SANDHYA DREW (Of Counsel) Instructed by: A J Hows & Associates Heathrow Office 81 New Road Harlington Middlesex UB3 5BG JUDGE LEVY QC By application received by an Employment Tribunal on 14 January 2000, Mr V M C Bruce ("the Appellant") claimed that he had been subject to discrimination contrary to the Disability Discrimination Act 1995 ("The Act") in respect to an application which he had made for employment. He named as Respondents Mr S Cavalier, a partner in the firm of Thompsons Solicitors, and Messrs Thompson, together "the Respondents". The Respondents' Notice of Appearance was dated 25 July 2000.[2]There was a hearing of the Appellant's application on 27-28 July 2000 before an Employment Tribunal sitting in London Central on 27-28 July 2000 and 25 August in Chambers. At that hearing the Appellant appeared in person and Ms Drew of Counsel appeared for the Respondents, as she has today.[3]The unanimous decision of the Employment Tribunal was that the Respondents did not discriminate against the Appellant on the grounds of his disability; his application was dismissed. By Notice of Appeal dated 9 October 2000 the Appellant appealed against that decision. There was a preliminary hearing of the appeal before an Employment Appeal Tribunal headed by H.H. Judge Wakefield in which the Tribunal made this[4]For the purpose of the hearing we have had several additional bundles to that is in the Court file which has the judgment at the Appeal Hearing at A that runs from pages 1-39. We have had the Appellant's written argument prepared for the preliminary hearing which runs to some 21 pages. We have had the skeleton argument of the Respondent for today. We have had the Respondents' written closing submissions given to the Employment Tribunal. We have had a helpful reply by the Appellant to the Respondents' skeleton submissions. We have had a document showing certain parts of the different forms filled in by those who were competing for the same job as was the Appellant to which we will refer in due course. We have had the application form for the employment which the Appellant sought but was unsuccessful in obtaining from the Respondent.[5]The Appellant addressed us for some 2 hours in presenting his case. Some part of those 2 hours consisted of our obtaining the extra bundles and being taken to the pages to which he referred. We were also asked to consider to a number of authorities. In the course of his submissions he tended to go into points which, on the limited point on which this appeal was allowed, to come to a full appeal, were not relevant. He also quite often strayed into giving evidence to us, which was not material to the appeal. Among the cases to which he referred us were Kent County Council v Mingo [2000] IRLR 90 , Clark v TDG Ltd t/a Novacold [1999] IRLR 318 and Edwards v Mid Suffolk District Council [2000] IRLR 190. Each of these cases considered quite separate fact and different issues of law to those which we had to consider in the circumstances. We did not find those authorities helpful to us in considering the live issues in this appeal[6]Findings of fact properly made by the Employment Tribunal are binding on us. No leave was given to appeal against those findings. As we have said the appeal was limited to whether the Tribunal had properly exercised its jurisdiction in applying Section 6 of the Act to the appeal.[7]Before we examine in a little detail factual background, we will set out the material sections of the Act. "5. ... (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" "(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." 6.-(1) Where- (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, place (and we stress that word) the disabled person concerned at a substantial disadvantage in comparison (and I emphasise those words) with persons who are not disabled, it is the duty of the employer (and we stress that word) to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect. (2) Subsection (1)(a) applies only in relation to- (a) arrangements for determining to whom employment should be offered; (b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded. (3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)-" ... "(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to- (a) the extent to which taking the step would prevent the effect in question; (b) the extent to which it is practicable for the employer to take the step;"[8]The factual background to the application to the Employment Tribunal and the appeal is this. Messrs Thompsons; ('the Second Respondent'), is a well known firm of solicitors. It acts largely for Unions and their members. By Clause 2 of the Deed of Partnership, which was before the Tribunal, the principal object of the partnership is to assist Trade Unions and their members. It was not the object of the partnership to maximise the income for its partners. That is referred to in the Employment Tribunal decision. The firm has a number of recruitment policies and good practice guides. The Appellant had qualified in 1997 and had worked for a law Centre and a large Manchester Law Firm. He is physically disabled and if we may respectfully do so, we pay tribute to the manner which, despite his disabilities, he presented his appeal to us.[9]A vacancy arose when a Solicitor left the employ of a Second Respondent. That solicitor specialised in discrimination law. He was responsible for dealing with difficult and complex discrimination cases. The firm decided to replace her with someone who, if possible, had a similar amount of experience and would be able to deal with discrimination cases with minimal supervision. The firm considered that it was essential that the person appointed should have experience of discrimination cases, as he or she would be expected to take on a large number of what were described as difficult cases immediately.[10]The Firm placed this advertisement in the Guardian on 8 September 1999. " Discrimination Lawyer To £29,800 pa plus car You will conduct sex, race and disability discrimination cases for applicants and advise on a range of employment law issues. You will need to show experience of conducting similar cases and will either be a solicitor with at least 2 years' post qualification experience or a lawyer with equivalent experience."[11]What happened thereafter was set out thus in the Extented Reasons:
"Mr Bruce did not see the advertisement but was informed of the vacancy by the Mark Fussell employment agency he was employing to find him employment. The agency sent curriculum vitae to the Second Respondent which sent him an application form which included a 'person specification'. This contained nine essential requirements and four desirable requirements. The essential requirements were as follows: 1 Qualified solicitor with post qualification experience or barrister with post qualification experience or experienced legal executive. 2 Experience of conducting Employment Tribunal litigation particularly sex, race and disability discrimination cases. 3 Experience of understanding of issues in sex, race and disability discrimination cases. 4 Understanding a trade union client priorities and industrial context. 5 Knowledge and experience of employment law. 6 Ability to relate well to clients. 7 Good written and oral communications skills. 8 Ability to litigate quickly and effectively in order to bring cases to conclusion within an appropriate timescale on a cost effective basis. 9 Ability to work as part of the Employment Rights Unit ("
ERU") a team in London and nationally. Mr Bruce submitted his application within the deadline. His application form, which was sent on the Respondent's standard application form but was accepted nonetheless, was considered along with other candidates by Mr Cavalier and Ms Dandridge. The initial process involved them considering the application forms separately. Once they had done that they met and automatically discarded all application forms which they both considered had failed to meet all the criteria. This resulted in Mr Bruce's application form being excluded without any further consideration. The reason was that as far as Ms Dandridge was concerned he had only met or partially met seven of the nine essential criteria whereas Mr Cavalier's view was that Mr Bruce had only met five of the essential criteria. Ms Dandridge considered both wheel chair access for Mr Bruce and also whether the two criteria which Mr Bruce had not met on her view should be adjusted to take account of his disability but she concluded that there was no reason to do so. Mr Cavalier also considered the issues of arrangements and adjustments but concluded that no adjustments needed to be made. Ms Dandridge and Mr Cavalier both agreed that Mr Bruce had met criteria 6-9. So far as the remaining criteria were concerned the position was as follows (the '?' sign meaning partially met): Criteria Ms Dandrige Mr Cavalier 1 met ? 2 did not meet ? 3 ? met 4 did not meet did not meet 5 ? ? 12 Mr Cavalier was aware of the 1998 proceedings as he had dealt with them in the absence of the partner concerned for a while. However at the time that the settlement was reached the matter was no longer being dealt with by Mr Cavalier but by his partner. Ms Dandridge was not aware of these proceedings or the settlement which compromised them. At the time she had been based in Scotland. Mr Cavalier decided not to inform her of those proceedings during the selection process. 13 Mr Cavalier and Ms Dandridge discussed the application forms of those in respect of whom either one of them had considered that a particular candidate was suitable to be shortlisted. They did not agree entirely with each other's marking but compromised as a result of which six candidates were shortlisted for interview. Candidates who had satisfied eight criteria and not satisfied one criterion were not short listed. Mr Bruce conceded during the course of his evidence that the shortlisted candidates were "much better than I" and "satisfied the criteria better than I". 14. Mr Bruce was dissatisfied with the fact that he had not been shortlisted for interview and therefore issued these proceedings and served a Questionnaire under the 1995 Act on the Second Respondent. In one reply the Respondent informed Mr Bruce that his had been the only application form received through the Mark Fussell agency. The Respondent also declined to send documentation which was confidential and which it did not consider was relevant to these matters."[12]Paragraphs 15 to 24 of the Extended Reasons summarised at some length the submission received and considered by the Tribunal. It is apparent from reading the decision that the Tribunal had in mind the decision in Morse v Wiltshire County Council [1998] IRLR 352 . It is referred to by the Tribunal within paragraph 22 of the Extended Reasons. "In Morse the Appeal Tribunal found that an Employment Tribunal is required to go through a number of steps when considering an allegation of failure to comply with the duty under section 6. First whether the provisions of section 6(1) and (2) impose a duty on the employer, and, if so, whether the employer had taken such steps as were reasonable to prevent disabled person being placed at a substantial disadvantage having regard to whether they could reasonably have taken any of the steps set out in section 6(3) and also having regard to the factors in section 6(4). Only if the employer had failed to comply with section 6 duty should the Tribunal then decide whether the employer had shown that its failure to comply was objectively justified within the meaning of section 5(4)."[13]Further in the decision the Tribunal went on to consider each of those questions. Those considerations are found in paragraphs 30-34 of the Extended Reasons. On each issue the Tribunal, unfortunately for him, reached a conclusion adverse to the Appellant. On appeal the Appellant contended that the Tribunal erred in law. He suggested that all that was required for a duty to arise under section 6(1) is the disability as in (a) and (b) which puts a disabled person at a disadvantage. If this was right, in considering whether to short list him, the Respondent should have amended some of the criteria required of the appointer to the employment selection so as to short list the Appellant.[14]Miss Drew submitted that the purpose of the section 1 duty (ie a duty to make a reasonable adjustment otherwise known as a reasonable accommodation for a disabled person) is to adjust to take into account for obstacles which such a person faces only to that extent. The overall requirement of equality remains. The duty to make a reasonable adjustment is part of ensuring that such equality is achieved. She submitted that is why section 6(1) requires comparison with persons who are not disabled.[15]In the circumstances of this case, the Tribunal had found that none of the three essential criteria constituted such an obstacle for the Appellant. The employment's clear finding was that the Applicant's lack of understanding of Trade Union priorities and industrial context, which was criterion 4, was not a disadvantage which he, as a disabled person, in comparison with a non disabled person's faced. In the Extended Reason they referred to a short listed candidate who had achieved that understanding through academic study. As to the Appellant's lack of experience in Employment Sex and Race Discrimination law, the Employment Tribunal found as a fact that his lack of experience in this particular field was not because of an obstacle which he as a disabled person face. He had in fact worked in both the Law Centre in a large Manchester firm. Their approach was confirmed by reading the Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who had such a disability and they took those into account as necessary.[16]In the course of his address, the Appellant had submitted that the Tribunal had ignored on that part of the code which related to recruitment. Code 5.6 reads:
"Can employers simply prefer a certain type of person? Stating that a certain person, medical or health related characteristic is desirable may also lead to discrimination if the characteristic is not necessary for the performance of the job. Like a requirement, a preference may be decisive against an otherwise well qualified disabled candidate and may have to be justified in an individual case."
An example is then given:
"An employer prefers all employees to have a certain level of educational qualification. A woman with a learning disability, which has prevented her from obtaining the preferred qualification, is turned for a job if she does not have that qualification. If the qualification is not necessary in order to do the job and she is otherwise the best candidate, then the employer would have discriminated unlawfully against her."
[17]It is apparent from paragraphs 19 of the Extended Reasons that the Tribunal were invited by the Appellant to consider various paragraph of the Code, which they did. We consider that on the facts found, any consideration of these additional paragraphs would not have led to a conclusion other than that reached by the Tribunal on the facts which they found. The Respondent was not preferring for its shortlisting a certain type of person or persons with particularly educational qualifications. This is evident by the criteria for shortlisting set out in paragraph 11 above.[18]The Appellant submitted that the Employment Tribunal took insufficient account of his ability and experience to work in the voluntary sector. We were to take the evidence on these points, particularly the Appellant's cross examination on this. Ms Drew submitted, we think quite rightly that the Tribunal clearly concluded that they were unconvinced by his evidence. The Tribunal considered at paragraph 33 the question of reasonable adjustments. They identified steps where could have been taken by the Respondent as allocating some of the duties to another member of staff until the Appellant had the necessary experience. Similarly he could have received training in the various discrimination employment matters with which he would be concerned and also in respect of understanding trade union client priorities in industrial context.[19]The Tribunal then asked themselves whether it would have been reasonable in accordance with section 6(4) to require the firm to take such steps The Tribunal concluded:
"The firm were looking for an experienced lawyer to start acting straight away in complicated matters in the context of the firm's clientele objects. In those circumstances the Tribunal concluded that it would not have been practical for the Respondents to take such steps."
[20]Miss Drew submitted in our judgment correctly that the Tribunal directed itself in accordance with the statutory steps as elucidated by Bell J in Morse and specifically found this step was not one which it was practical for the employer to take.[21]The Appellant had also contended that Ms Dandridge and Mr Cavalier should have conferred together on reasonable adjustments. He put it thus in written submissions:
"I submitted the Respondent should establish to demonstrate that they actually considered the issue of which selection arrangements which would result in the Applicant being rejected and what steps should be possible and then whether it would be unreasonable."
[22]Ms Drew submitted that this was a submission which was misconceived. The Tribunal made clear and unchallenged finding of fact that both Mr Cavalier and Ms Dandridge separately considered the possibility of making of an adjustment for the Appellant and rejected the submission they should have done more in the circumstances; further that the failure to find for of the adjustment contended by the Appellant there was not an error of law. She submitted that the Tribunal had clearly asked all the right questions and on the findings of fact asked the correct questions and came to answers with which this Court could not interfere.[23]Ms Drew also reminded us of the Tribunal's findings in relation to section 5(2) and (4) of whether she pointed to the fact that the Tribunal considered that any failure to make a reasonable adjustment would in any event have been justified. Miss Drew submitted that this conclusion was not only one which was fully open to the Tribunal to reach on the evidence before it and but on its findings of fact on the nature of the post to be filled that conclusion was undoubtedly right. We respectfully agree with her submission and with the Tribunal's finding.[24]We have taken account of all the submissions, both written and or which the Appellant has made today. Contrary to those submissions, in our judgment no point of law arises which lead us to disagree with the decision reached by the Employment Tribunal. We appreciate how much work the Appellant has put into preparing for this appeal and that he feels strongly that the Respondent should have done more to cater for his undoubted disability. However, as we have concluded that there was no error of law in the judgment given by the Employment Tribunal, we dismiss this appeal.

order

"THE TRIBUNAL ORDERS that the Appeal be allowed to proceed to a full hearing only on the issue as to whether the Employment Tribunal correctly applied Section 6 of the Disability Discrimination Act 1995. THE TRIBUNAL FURTHER ORDERS that skeleton arguments to be exchanged between the parties and lodged with the Employment Appeal Tribunal not less than 14 days before the date of the full hearing." We shall refer to the Disability Discrimination Act 1995 as ("the Act").