PRELIMINARY HEARING - ONLY - TELEPHONE HEARING v (1) MR A M J CHAMBERLAIN [2003] UKEAT 0404_03_1911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0404_03_1911Case No Appeal No. EAT/0404/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PRELIMINARY HEARING - ONLY - TELEPHONE HEARINGAPPELLANT(1) MR A M J CHAMBERLAINRESPONDENT
Before
His Honour Judge J McMullenDate 19 November 2003
[1]APPEARANCES For the Appellant MR VMS BRUCE (the Appellant in Person) For the Respondent Written submissions HIS HONOUR JUDGE J McMULLEN QC These cases involve the scope of the Disability Discrimination Act 1995 , and a Chairman's power of strike-out. I will continue to refer to the parties as Applicant and Respondent. Introduction[2]The Applicant appeals against a decision of Mr B J Doyle Chairman of Employment Tribunal sitting at Manchester in chambers on 7 February 2003. The hearing was conducted bilaterally on written submissions. They were described as combined proceedings based on two Originating Applications. The decision was entered in the register on 6 March 2003.[3]By a letter of 18 March 2003, the Secretary of the Tribunals on behalf of the Chairman said as follows:
"…it is not appropriate for a Chairman to add to a perfected decision."
[4]This was in response to an application by the Applicant as follows: 1 "It will assist me to evaluate the decision and consider applying for a Review if the Chairman will state on the basis of which documents submitted by me he was entitled to state within the decision at paragraph 5 that my claim was linked to only ".the selection criteria (to overcome his lack of relevant knowledge or experience)." Please will the Chairman identify the material on which he relied?"[5]The Chairman decided that the first Originating Application should be struck out pursuant to Rule 15 (2) (c) to the extent that it relied on matters that are broadly described as the duty to make reasonable adjustments. Otherwise the case was to proceed on the basis of disability discrimination and victimisation. The Chairman struck out the second Originating Application. The Applicant appeals. Procedure[6]Directions in this case were given by Judge Birtles in chambers for a Preliminary Hearing. The Applicant is disabled within the meaning of the Disability Discrimination Act 1995 and has been a wheelchair user since childhood.[7]In response to an application by him for the Preliminary Hearing proceedings to be conducted by telephone the President directed me to consider such matters and the practical application of the request. I ordered by analogy with the CPR that the hearing should take place on the telephone and that was done. The CPR would not apply directly if this case were regulated by it as the Applicant is a litigant in person and the hearing is capable of determining finally the appeal. I exercised my discretion, without objection from the Respondent, and made what I consider to be reasonable adjustments in the light of the Applicant's requests and his disability. Although he objected to some directions, none survived to the hearing. Technically it was a public hearing since the public could be admitted to the room, although only my associate was present. The Applicant and I agreed at the end that this procedure worked well. Before completing this judgment the Applicant sent me further submissions and authorities on 15 October 2003 which I have considered without finding it necessary to seek the Respondent's further submissions. The Background[8]The Applicant is a Solicitor, admitted in 1997. He made a number of unsuccessful applications for employment as a solicitor. Relevant to these proceedings is his unsuccessful application to Thompsons Solicitors, embodied in a judgment of the EAT His Honour Judge Levy QC in EAT/1283/00 on 11 June 2002: Bruce v Cavalier and Thompsons Solicitors . His application to those solicitors was rejected for it was held that the firm considered it essential that the person appointed to the vacancy which it advertised should have experience of discrimination cases, and it was not required to make a reasonable adjustment to its criteria.[9]The Applicant had worked for a law centre and a large Manchester law firm. He argued that the firm should have made reasonable adjustments to the selection criteria so as to avoid putting him at a disadvantage as a disabled person. It was held that the criteria were not those which the Applicant as a disabled person would be at a disadvantage in satisfying as compared with a non-disabled person.[10]In his Originating Application against the current Respondents the Applicant noted that he had previously brought proceedings against Addleshaws. Because of that Addleshaws agreed to notify him of vacancies and on 24 September 1999 he was informed that a vacancy existed in the range of 0-2 years post qualification.[11]When requested by the Applicant to supply a job or personal specification the firm said:
"It is not our practice to draw up a detailed job/person specification. We are looking to recruit an individual who is 0-1 years qualified and who has specialised in employment law since qualification, or who has a desire to specialise if he/she is a newly-qualified solicitor."
In answer to a statutory questionnaire the firm asserted that it did not have person and job specifications for all vacancies: "whether the specifications differentiate between essential and desirable depends on the individual vacancy".[12]When taking into account matters for shortlisting a range of skills was specified. The Applicant was interviewed but was rejected by a letter of 24 November 1999. Its pleaded case, and its written submission to the Employment Tribunal, is that he was rejected because he did not have experience and expertise of corporate employment support work, TUPE ( Transfer of Undertaking (Protection of Employment) Regulations 1981 ) and of other areas of employment law. He did not answer technical questions correctly. The successful candidate had significant experience of this type of work. It is the Applicant's case that an adjustment should have been made in his favour to overcome his lack of such experience because the Respondent is a substantial employer and was able to implement various adjustments. It is contended by the Respondent that at interview the Applicant accepted he did not have knowledge of TUPE. Although the Applicant filed a Reply to the Respondent's Notice of Appearance to the second Originating Application (victimisation) none was filed in the first case. It is implicit in the claim the Applicant makes that he did not meet the criteria, for he asserts they disadvantaged him.[13]In his second Originating Application, this time against the firm only, he contended that it had victimised him for having made claims of disability discrimination. The victimisation took the form of writing to third parties and solicitors to seek information about other claims, writing to the Attorney-General to ask him to institute vexatious litigant proceedings and "to put about that I am trouble by engaging in this liaison."[14]The firm responded that proceedings had been initiated by the Applicant against it on three previous occasions and admitted that it had taken steps pursuant to section 33 of the Employment Tribunals Act 1996 on the grounds that the Applicant had issued at least 66 claims in Employment Tribunals since 1995 against a number of Respondents. It denied having "put about" that he was "trouble". It asserted that it is not victimisation to seek to have the Applicant declared vexatious. The Legislation[15]The power to strike out an Originating Application or part of one is contained in Rule 15 (2) (c) of the 2001 Rules on the grounds "that it is scandalous, misconceived or vexatious". By Regulation 2 "misconceived" "includes having no reasonable prospect of success". Regulation 10 contains the overriding objective to deal with cases justly.[16]The Disability Discrimination Act 1995 defines a disabled person as a person who has a physical or mental impairment and some further conditions are found within Schedule 1. Part II defines discrimination against applicants and employees and section 4 (1) provides as follows: 4 (1) "It is unlawful for an employer to discriminate against a disabled person – (a) in the arrangements which he makes for the purpose of determining to whom he should offer employment; (b) in the terms on which he offers that person employment; or (c) by refusing to offer, or deliberately not offering, him employment."[17]Discrimination is defined by section 5: 5(1) "For the purposes of this Part, an employer discriminates against a disabled person if— (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.(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."[18]The reference above to a section 6 duty is described in the heading as a duty to make adjustments. In fact, adjustments appears as just one of the "steps" which are reasonably to be taken in circumstances provided by section 6(1) which provides as follows: 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 the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer 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." Examples are given of steps reasonably to be taken in section 6(3) and reasonableness is determined by section 6 (4).[19]Protection against victimisation is provided by section 55, which says, so far as is relevant: 55 (1) "For the purposes of Part II or Part III, a person ("A") discriminates against another person ("B") if – (a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's; and (b) he does so for a reason mentioned in subsection (2).

(a) "

[20]Vexatious litigants are the subject of the Employment Tribunals Act 1996 , section 33, which provides as follows: 33 (1) "If, on an application made by the Attorney General or the Lord Advocate under this section, the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground – (a) instituted vexatious proceedings, whether in an Employment Tribunal or before the Appeal Tribunal, and whether against the same person or against different persons; or (b) made vexatious applications in any proceedings, whether in an Employment Tribunal or before the Appeal Tribunal, the Appeal Tribunal may, after hearing the person or giving him an opportunity of being heard, make a restriction of proceedings order."[21]The effect of such an order is to preclude applications being made to an Employment Tribunal in accordance with section 33 (2). Consideration[22]I will deal with the applications slightly out of turn by looking at the appeal against the decision in the second Originating Application. This is the one the Tribunal Chairman struck out entirely.[23]I have been referred to the judgment of the House of Lords in Rhys-Harper v Relaxion Group Plc [2003] IRLR 484 . I agree that the Applicant puts forward a case that there is a reasonably arguable proposition to be made. The Chairman decided that section 55 "creates no cause of action. It is not a free-standing provision"; whereas Lord Nicholls in Rhys-Harper said at paragraph 147: 147 "Victimisation is in principle a free-standing unlawful wrong. It is ancillary to the main provisions of the relevant act."[24]This case was decided after the Chairman gave his decision and after written submissions for the Preliminary Hearing were made by the Respondents. The appeal against the striking out in whole of the second Originating Application will go to a full hearing.[25]I then turn to the complaint about the Tribunal Chairman's refusal on 18 March 2003 to state the basis on which he had made his decision.[26]The Respondent has indicated it knows nothing about this decision. In my judgment the Chairman was perfectly correct to cause the reply to be written in those terms for, as May LJ said in Leverton v Clwyd Council [1989] ICR 33, at 46:
"In my respectful opinion an appeal to the Appeal Tribunal should be decided upon the Industrial Tribunal's reasons as originally drafted, and I deprecate any procedure whereby these may be supported or enlarged by any direct communication between the Industrial Tribunal on the one hand and the Appeal Tribunal on the other."
[27]That must apply with more force as it relates to communications between a party and the Chairman. It does not fall within the scope of cases sent back by the EAT to the Employment Tribunal to give a decision or reasons for a decision on a point in issue. It is probably wrong to regard this as a separate appeal and so I will instead treat the first appeal as including a claim that insufficient reasons were given.[28]As I have said, the Chairman allowed the claim based on section 5 (1) of the Act to proceed. In addition, the Applicant is entitled to raise issues under section 55 dealing with victimisation. However, his claim of discrimination by way of a failure to make what are known as reasonable adjustments was struck out. The basis for the Chairman's decision is that the case appears to be on all fours with the Thompsons case (above).[29]In my judgment that is correct. The distinction which the Applicant argues for is based upon there being in Thompsons specified criteria made known in advance, whereas in the instant case this was the subject of application at interview. I agree that that makes factual determinations rather easier but it does not destroy the principle. As a matter of law the decision in Thompsons was binding on the Chairman. I would, as a matter of practice, follow a judgment of a three-member EAT on a question of law unless I were convinced that it was wholly wrong. I consider the Thompsons case was correctly decided and so the Chairman did not err by applying it. The instant case is on all fours with the reasoning in the Thompsons case and I do not accept the submission that its application is dependent upon finding an identical set of facts. The reasons shine through and are applicable in similar but not identical subsequent cases. That is the doctrine of precedent.[30]The Chairman was at pains to point out that discrimination cases are notoriously fact-sensitive and that is why he allowed part of the case to go forward. In the light of Thompsons, it was not arguable as a matter of law that there was a breach of section 5 (2) when a person who was at a disadvantage in meeting the criteria required by the Respondent of having expertise of corporate employment support work and knowledge of TUPE was disabled.[31]In those circumstances it is not necessary for me to consider the wider aspects of the Applicant's submissions. I note that the Applicant contends in paragraph 8.8 of his submission that the Chairman did not deal with what is essentially an argument of the Respondent. It is that there must be a causal connection between the disability and the adjustment for the section 6 duty to exist. But that can only be in the Applicant's favour. If this were the Respondent's defence, the Chairman did not regard it as fatal to the Applicant's case. Nor do I consider it necessary for the Chairman to have decided that the issue in this appeal should be the subject of a full hearing. In discrimination cases, that is often useful but I do not consider the Respondent should be put to that procedure if there is a valid basis for a strike-out application. I do not find any assistance in Equitable Life Assurance v Ernst & Young LS Gaz 9 October 2003. I have, however, reread the authorities which the Applicant has put before me which are: Kirton v Tetrosyl Ltd [2003] IRLR 353 , Oxford v Department of Health and Social Security [1977] ICR 884, Anya v University of Oxford and Another [2001] IRLR 377 , Hereford and Worcester CC v Neale [1986] IRLR 168, Whittle v Boss Group Ltd EAT/995/99, Relaxion Group Plc v Rhys-Harper (above), De Keyser Ltd v Wilson [2001] IRLR 324 and Kent County Council v Mingo [2000] IRLR 90 , and Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 .[32]I will therefore dismiss the appeal against the Chairman's decision on the first Originating Application. Expenses[33]This telephone hearing was made by way of a reasonable adjustment at the Applicant's request. He considers that the expense of the telephone connection should be borne by the EAT. He argues that if he attended at the EAT in London, or I suppose even at Leeds where the EAT has in the past sat, he would not be charged by the EAT, although he would of course have normal travelling and subsistence expenses.[34]The analogue which I have used from the CPR requires the costs of a telephone hearing to be part of the costs of the case and of course there the normal rule is that costs would follow the event. That does not apply and costs are only relevant in the EAT under Rule 34 where there has been some unreasonable conduct, or an adjournment or amendment is granted, and then it is an order as between parties.[35]Mr Bruce points out that in the Employment Tribunals case management conferences are routinely conducted by telephone and the expense is borne by the Tribunal. This is wholly novel in the EAT, but he submits the same approach should apply. Although the practical outcome of this hearing is that Mr Bruce has saved considerable travel expense, there is a qualitative difference between that and the administrative cost of conducting the hearing. This is obviously a policy matter which will require some consideration but, for the mean time, in respect of this hearing only, I am prepared to make a recommendation to the Registrar that she should exercise her discretion to make an ex gratia payment of the telephone costs of this hearing and Mr Bruce should submit a bill to her. Appeal[36]The parties were invited to consider this judgment in draft and to make any applications. I refuse the Appellant's application for permission to appeal on the causal connection point (above, paragraph 31), as it has no reasonable prospect of success.