MR B P HART v BOLTON HOSPITALS NHS TRUST [2005] UKEAT 0909_04_0903

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0909_04_0903

Case No Appeal No. UKEAT/0909/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B P HARTAPPELLANT

BOLTON HOSPITALS NHS TRUSTRESPONDENT

Before

Her Honour Judge Wakefield

Date 9 March 2005

[1]APPEARANCES For the Appellant MR B HART (the Appellant in Person) For the Respondent MR SEAN E REYNOLDS (Solicitor) Messrs Hempsons Solicitors Portland Tower Portland Street Manchester M1 3LF SUMMARY Practice and Procedure Refusal of Employment Tribunal to accept the claim. Appellant asserted disability discrimination but denied he was a disabled person. His complaint was that he was unfairly treated in that the potential employer denied him a job on the mistaken basis that he was disabled. HER HONOUR JUDGE WAKEFIELD This is an appeal by Mr Brian Philip Hart against the refusal of an Employment Tribunal Chairman sitting in Manchester to accept his claim. The background facts, in brief, are the following.

[2]On 20 October 2004, the App ellant presented an Originating Application to the Tribunal. He had completed the standard form and, from the information given, appeared to be alleging that he had been discriminated against on grounds of disability by Bolton Hospital NHS Trust who, in November 2002, had offered him a job subject to medical clearance and had then withdrawn the offer following a medical assessment made on the basis of previous knowledge of the Appellant and without a medical examination.

[3]By a letter to the Appellant dated 21 October 2004, the Employment Tribunal acknowledged receipt of the claim form and continued:- "Your claim form has been referred to a chairman Miss A Woolley who has decided that your claim cannot be accepted for the following reason(s) Discrimination in 2003 was only unlawful if it was on the grounds of sex, race, married status or where the Claimant was a disabled person on certain grounds relating to his or her disability. You do not appear to be alleging any such grounds. I am therefore returning your claim form to you."

[4]By Rule 3(2)(b), 3(3) and 3(5), of the Employment Tribunal Rules of Procedure under the 2004 Regulations it is provided as follows:- (2) The Secretary shall not accept the claim (or a relevant part of one) if it is clear to him that one or more of the following circumstances applies - … b) the tribunal does not have power to consider the claim (or that relevant part of it). (3) If the Secretary decides not to accept a claim or part of one for any of the reasons in paragraph (2), he shall refer the claim together with a statement of his reasons for not accepting it to a chairman. The chairman shall decide in accordance with the criteria in paragraph (2) whether the claim or part of it should be accepted and allowed to proceed. … (5) If the chairman decides that the claim or part of it should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall as soon as is reasonably practicable inform the claimant of that decision and the reasons for it in writing together with information on how that decision may be reviewed or appealed.

[5]This is the power which clearly was exercised in the present case. The Appellant did not apply for a review of that decision, as he was entitled to do by rule 3(8). Instead he appealed the decision not to accept the claim. Having read the copious details on the original form making the complaint, including the six continuation sheets, it is clear to me that nowhere does the Appellant assert that at the relevant time he was a disabled person within the meaning of the Disability Discrimination Act 1995 . On the contrary, his complaint is in essence that he was rejected for the post on the basis he was suffering from asthma, when in fact following surgery in November 1999, he has been in excellent health.

[6]By an order of this Employment Appeal Tribunal made by the President, Mr Justice Burton, in chambers, the Appellant was ordered to serve on the Respondent and to lodge on the Tribunal by 10.30am this morning, the following information:

"Whether he alleges that at any time between 1st November 2002 and 31st May 2003 he was suffering from a disability, namely physical or mental impairment which had a substantial and long term adverse affect on his ability to carry out normal day to day activities, and if so what that disability was."

[7]Today, the Appellant has put in that further information. Most relevantly he says the following:- "I have never stated at any time that between 1 November 2002 and 31 May 2003 that I was suffering from a disability namely physical or mental impairment which had a substantial and long term adverse effect on my ability to carry out normal day to day activities. This has never been stated by me in my original bundles, and also my skeleton argument, which the Respondent is well aware of."

[8]The Appellant, who has acted throughout in person, clearly feels extremely aggrieved that he has been denied a job, on what he believes to be spurious grounds. Unfortunately, he has not put his grievance into any form which can amount to a complaint over which an Employment Tribunal has jurisdiction. Being adamant that he is not, and was not at any relevant time, a disabled person he is unable to claim disability discrimination.

[9]In these circumstances and without it being in any way appropriate today to consider the merits of the manner in which the Respondent treated the Appellant, the only possible conclusion on this appeal is that the Employment Tribunal was correct in refusing to accept the claim as put forward. The appeal is therefore dismissed.