Appeal No.	 EAT/640/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 September 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MR S M SPRINGER MBE

DR R.E.J. RUDZKI	APPELLANT

MANCHESTER METROPOLITAN UNIVERSITY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR GEORGE
(of Counsel)
ELAAS	

	JUDGE PETER CLARK:	

1.	The appellant brought a complaint of disability discrimination against the respondent, The Manchester Metropolitan University after he was not short-listed for interview for the post of Lecturer/Senior Lecturer in Human Resources Management for which he had applied. That complaint was dismissed by an Employment Tribunal sitting at Manchester on 15th to 17th March 1999. His application for a review of that decision, promulgated with extended reasons on 12th April 1999, was dismissed by the Chairman under Rule 11(5) of the Employment Tribunal Rules of Procedure by a review decision promulgated with reasons on 11th May 1999. Against the original substantive decision he now appeals.

2.	It was common ground before the Employment Tribunal that he was disabled within the meaning of s.1 of the Disability Discrimination Act 1995. He had sustained injuries in a road traffic accident some years ago which resulted in his having significant difficulty in reading written or computer material.

3.	In his job application he stated that he was Registered Disabled, without explaining the precise nature of his disability. No enquiries were made by the respondent as to what was the extent of his disability.

4.	The respondent received 33 applications for the post advertised. A short-listing panel of three was convened consisting of Professor Pendleton, the Head of Department of Management; Susan Shaw, Acting Head of the Department of Management and Professor Healey, Head of the Department of Business Studies. That panel carried out its work objectively and professionally, so the Employment Tribunal found.

5.	The tribunal accepted evidence called by the respondent from the panel members to the effect that the panel genuinely concluded that the appellant had been less than forthcoming in providing details of his academic and professional history and indeed that he was “economical with the truth” with regard to the relevance of his qualifications, experience and in particular his publications. These conclusions, the tribunal found, were in no way connected with his disability.

6.	The tribunal found that there was here no less favourable treatment of the appellant for a reason which related to his disability. The panel simply short-listed those best qualified for the job. They legitimately excluded the appellant at the short-listing stage by reason of his lack of suitability for the post, not his disability.

7.	In this appeal Mr George takes three points on behalf of the appellant. The first two relate to a claim of disability discrimination under s.5 (1) of the Act which provides:

“(1) For the purpose 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.”

8.	Mr George first submits that the tribunal’s reasoning in paragraph 14 of the original decision reasons was unsatisfactory. He draws attention to the tribunal’s reference to a lack of motivation on the part of the members of the short-listing panel to discriminate against the appellant on the grounds of his disability. We accept, by analogy with the law relating to race and sex discrimination, that motive as such is not the key question. But in paragraph 14 the tribunal go on to make this, we think, critical finding:

“14. …None of the actions by the selection panel can give rise to an inference that the disability of the applicant formed any part in their deliberations.”

9.	The essential findings of fact on which that conclusion is based are contained in paragraph 11 of the reasons, where the tribunal say this:

“11.	The Tribunal also felt that the selection panel and in particular Professor Pendleton, when considering the applicant’s case, formed the view that the applicant had been less than forthcoming in providing details of his academic and professional history and may even have come to the conclusion that the applicant was being “economical with the truth” with regard to the relevance of his qualifications, his experience and, in particular, his publications. Nevertheless, the Tribunal formed the view that such inferences as the panel drew from the applicant’s application form were genuine and in no way connected to his disability.”

10.	Again, Mr George challenges the findings made in paragraph 11. He submits that the reasons are so brief as to be inadequate to fully explain why they accepted the explanation given on behalf of the respondent for their refusing to short-list the appellant in circumstances where he was disabled within the meaning of the Act.

11.	We have considered those submissions with care, but we have reached the conclusion that the tribunal has given sufficient reasons to explain why they accepted the explanation given by the respondent and why they found that explanation satisfactory and, in these circumstances, we can see no grounds for interfering with their finding that the appellant failed to make out his case under s.5(1) of the Act.

12.	However, the final point taken by Mr George, we think, has substance to it. In the original reasons the tribunal make no mention of any question of a failure on the part of the respondent to comply with a duty under s.6 of the Act to make reasonable adjustments in the way in which they conducted this recruitment exercise. That point was specifically raised by the appellant in his letter of 24th April 1999 in which he applied for a review of the original decision. The Chairman deals with that at paragraph 7 of his review decision reasons:

“7.	In the third paragraph of the letter of 24 April 1999, the applicant states that the respondents admitted that no attempt was made to make any reasonable adjustment. However the Tribunal was satisfied, as confirmed in the extended reasons given, that the decision of the selection panel not to shortlist the applicant was based upon their assessment of his suitability for the positions having regard to the contents of his application form, irrespective of the fact that he had identified that he was disabled. In those circumstances, any question relating to the duty of the respondents to make a reasonable adjustment within the meaning of the provisions of Section 6(1) of the Disability Discrimination Act 1995 does not arise.”

13.	We think that an arguable point of law arises for consideration at a full appeal hearing, bearing in mind the approach of the Court of Appeal in Clark v Novacold [1999] IRLR 318, judgment having been given in that case on 25th March 1999 but not fully reported at the time that the Chairman gave his review decision. In the course of his judgment in that case Mummery LJ made it clear that there the Employment Tribunal had incorrectly appeared to consider that a claim under s.5(2) of the Act only fell for consideration if the tribunal found in favour of the applicant under s.5(1). His Lordship made it clear that a s.5(2) claim for a breach of a s.6 duty is not dependent on successfully establishing a claim under s.5(1). They are different causes of action even though, as recognised by s.5(3), they may overlap.

14.	It is, we think, not insignificant that the appellant’s case on reasonable adjustments for the purpose of the recruitment exercise, is not touched on at all in the original decision reasons and that in the review decision reasons the Chairman appears to be saying that having failed on his claim under s.5(1) the question of reasonable adjustment simply do not arise. We say no more than we think that that point is arguable. Accordingly the matter will proceed to a full hearing limited to that point only. The case will be listed for two hours, Category B. There will be exchange of skeleton arguments 14 days before the full appeal hearing. Copies to be lodged here timeously.