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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Greig v. DTZ Management Services [2004] UKEAT 0033_04_2707 (27 July 2004) URL: https://www.bailii.org/uk/cases/UKEAT/2004/0033_04_2707.html Cite as: [2004] UKEAT 33_4_2707, [2004] UKEAT 0033_04_2707 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN Q.C.
MR A J RAMSDEN
MR M G SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | Mr James Greig, In Person 13 Broom Gardens KIRKCALDY KY2 6YZ |
For the Respondents |
Miss M Kerr, Solicitor Of- Messrs Harper Macleod Solicitors 8 Melville Street EDINBURGH EH3 7NS |
ET's finding that a vacancy had been filled by the time the Applicant applied for it would not be overturned and so there was no evidence of less favourable treatment related to the Applicant's disability.
HIS HONOUR JUDGE McMULLEN QC:
Introduction
The Issue
"In his originating application the applicant complained that the Respondent had treated him less favourably than another for a reason related to disability in connection with recruitment to the post of security guard, contrary to the provisions of Section 5(1) of the Disability Discrimination Act 1995 (DDA). It was conceded by the Respondent in this case that the applicant was a disabled person for the purposes of the DDA 1995."
"The applicant's complaint was received at the Central Office of Employment Tribunals on 10 December 2002. In his originating application he made reference to an application for a post with the Respondent as a security officer which he had applied for on 17 September 2002. He complained of discrimination occurring between 17 September and 21 November 2002 with regard to this application. However he also referred in his originating application to making earlier applications for employment with the Respondent on 21 December 2001 and 22 July 2002. During the hearing the Chairman sought clarification of whether the applicant sought to bring a complaint in relation to either of these applications, giving rise to the issue of time bar requiring to be explored or whether his complaint was focussed on his application of 17 September, reference being made to earlier applications simply as part of the history of events which the applicant believed supported his contention of discriminatory treatment in respect of the September application. The applicant confirmed that he was not relying upon the applications made in December 2001 and July 2002 as giving rise to separate acts of discrimination in respect of which he sought compensation."
The Legislation
"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."
5 Meaning of 'discrimination'
(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
(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(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.
(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."
The Tribunal directed itself by reference to those section and to one authority which was put before it, Jones v Post Office [2001] IRLR 384.
The Facts
"The Respondent is a company which manages shopping centres. It provides centre management, security, cleaning and maintenance services at centres across the country. Mr Mckay has been in the employment of the Respondent for around 17 years and has managed the Kingdom Shopping Centre in Fife on behalf of the Respondent since 1986. Mr Forrester is the operations manager at the kingdom Centre, having previously been employed for around 7 years as the security supervisor at that site.
Both Mr Mckay and Mr Forrester have received disability awareness training. Mr Mckay has been involved with a charitable company for about 10 years which is called Fife Shop Mobility.
Staff turnover levels at the Centre fluctuate. The Respondent uses the Job Centre network to fill posts. It notifies the Job Centre of vacancies which they advertise."
"The applicant reapplied for the post of security guard with the Respondent in September. It was the same vacancy in respect of which he had made the application in July. His application form was in exactly the same terms as the form he submitted in July. This form is dated 17 September by the applicant and was received on 19 September. By that time both vacancies (i.e. the one actually advertised and the other one which had arisen) had been filled. For that reason neither Mr Forrester nor Mr Mckay considered the terms of this form. This is supported by the fact that the form bears no markings on it which would normally be present if it had been considered for shortlisting. In accordance with normal practice the applicant was not notified that his application had been unsuccessful."
"The first matter which the tribunal considered was whether the applicant had been less favourably treated than others for a reason connected to his disability. In making that comparison the comparator is, in essence, someone who is not disabled. The tribunal is concluded that the applicant had not been less favourably treated than another for a reason connected to his disability. It was satisfied that someone who was not disabled would have been treated in exactly the same way as the applicant. The reason the applicant was not considered for the post he applied for in September 2002 was because it had already been filled by the time he applied. On one view of it the matter might rest there."
The Applicant's case
13. The Tribunal erred in failing to draw inferences pursuant to the guidelines given in Anya v University of Oxford [2001] ICR 847 at paragraphs 7, 8 and 9 which contain the extract of the judgment of the EAT in Qureshi v Victoria University of Manchester [2001] ICR 863.
The Respondent's case
The legal principles
Conclusions
Delay
"I am of course entitled to an impartial hearing as per Article 6 of the Convention. I am also minded of the delay in producing Extended Reasons and the Tribunal's setting aside its own adopted standard. I ask the Tribunal to send the case back to a freshly constituted, impartial, reasonable Tribunal to be determined upon the merits: in accordance solely with the guidelines in Zafar/King as per my pleading in IT1."
What he is referring to is the judgment of the EAT, Mr President Burton and Members, in a series of cases known as Mtize and Kwamin [2004] IRLR 516.
"We do not consider this appeal has any substance. The appeal is dismissed."
We would like to thank both the Applicant and Miss Kerr for the measured way in which they have put the points to us today.