Appeal No. EAT/11/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 June 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
LORD DAVIES OF COITY CBE
MRS R A VICKERS

MR A H SADIQ	APPELLANT

LEEDS CITY COUNCIL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MR C HAY
(Lay Representative)
Northern Complainant Aid Fund
Midlands Unit
70 Villa Road
Handsworth
Birmingham B19 1BL	

MR JUSTICE LINDSAY (PRESIDENT)

1.	We have before us the appeal of Mr A H Sadiq in Sadiq v (1) Leeds City Council, (2) Mr M Tolladay, (3) Mrs L Duffy and (4) Mr A McIlroy.  It is a preliminary hearing and Mr Courtney Hay has appeared today for Mr Sadiq.  The history is that on 18 July 2000 Mr Sadiq presented an IT1 for disability discrimination.  He claimed that he had a visual impairment.  He claimed that, whilst already employed by Leeds City Council, he had applied for another job working for Leeds in response to Leeds internal advertisement for an IT trainee of a particular kind.  He completed a form of application on 9 March 2000.  He was not short listed and he was told, he said, that he was not short listed on 19 April 2000.  April 19, of course, was one day short of three months before 18 July, when he presented his IT1.  And so, on the face of things, if that was right, his IT1 was not threatened by the time bar.

2.	He said:

“On 19 April 2000 I spoke to Kath Denton of IT Services Personnel and Admin section to find out the progress of my application and whether or not I had been shortlisted for the post of IT Trainee.  I was informed that I had been unsuccessful. I asked why my application was not progressed further, because in my view (a view supported by LEODIS), my paper qualifications and experience fulfilled the requirements set out for the post and where it was quite reasonable for me to expect to be called for an interview, thus allowing me the opportunity to demonstrate my suitability for the job on offer.  I was advised to contact Mr Malcolm Tolladay for the reason I was rejected without interview, as he was a member on the selection panel for the post.”

He did enquire and he was told, he says:

“I was informed that although I met all the essential criteria, unfortunately I did not meet the desirable criteria which due to the large number of applicants had to be considered for shortlisting purposes.  When (and after) I explained to him that it was LCC’s policy to guarantee an interview to a disabled applicant who met all the essential criteria but did not necessarily meet all or part of the desirable criteria, it became apparent that he was unaware of the policy and/or had not considered it important.”

And that, according to Mr Sadiq, was on 21 April.  Oddly enough, given that he was, in effect, complaining that he had not been given due preference that should have been given to a disabled person, he was also in reality complaining that he had been treated the same as an undisabled person.  And he continued:

“The above response led me to believe that my application must have been treated less favourably than others, in circumstances suggesting that the reason for such treatment must have been for a reason related to my disability (unless it was on grounds of my race and/or sex).”

So he was claiming that he had been not given the preference that should have been given to disabled persons and yet he had been treated less favourably on the grounds of disability.  One can see that there are going to be some legal logical complications.

3.	If Mr Sadiq had got all the necessary ingredients for a complaint of disability discrimination by any date earlier than 18 April, well then, his IT1 of 18 July could be out of time.  On 10 August 2000 there was an IT3 from Leeds and from the other respondents.  They said that Mr Sadiq had been told that he was unsuccessful on or before 11 April but was told also that the decision could be reviewed.  They said that Mr Sadiq had asked for a review.  The review, they said, was on 12 April and confirmed his lack of success on his job application.  I should have said earlier that the IT1 says:

“In order to comply with the prescribed time limit (of 3 months), I am filing my IT1 and I would like to reserve the right to amend it once I have received the Respondents’ replies to my statutory questionnaires and considered their IT3 Notice(s) of Appearance.”

4.	Leeds said on behalf of all the respondents as follows:

“The respondents submit that the Applicant had knowledge that his application for the post failed to meet the criteria on 11 April 2000.  His claim of disability discrimination is therefore out of time and the Employment Tribunal has no jurisdiction to hear it.  The Respondents respectfully request a preliminary hearing to determine the entitlement of the Applicant to bring these proceedings.

If, in the alternative, the Applicant’s claim is within time then the Respondent’s submit as follows. If, which is denied, the Applicant has a disability within the meaning of the Disability Discrimination Act 1995, he was not treated less favourably than other candidate in any aspect of the recruitment process for the posts, nor was he victimised by any of the named Respondents.”

5.	On 9 October that IT1 and that IT3 went forward to a hearing at Leeds.  On 26 October the decision was sent to the parties.  It was:

“(i)	The application by the Applicant is out of time.

(ii)	It is not just and equitable for the Tribunal to exercise its discretion and therefore it has no jurisdiction to here (sic) the Applicant’s claim.”

That was the decision of the Tribunal at Leeds under the Chairmanship of Mr D J Latham.  

6.	The Notice of Appeal is dated 6 December.  In the course of the decision and Extended Reasons the Tribunal had made a number of points which we need to set out.  They said:

“The matter had been convened as a preliminary hearing as it was alleged that the act of discrimination had occurred on 11 April 2000 and not as the Applicant had originally suggested on 19 April 2000 and therefore, as he had lodged his Originating Application with the Tribunal on 18 July 2000, he was out of time by some eight days.”

And in their paragraph 5 the Tribunal said:

“Evidence was heard from the Applicant and from Mrs Catherine Denton, Assistant Personnel Officer with the Respondents.  There is a direct conflict of evidence between those two people and it is that direct conflict of evidence that the Tribunal has to resolve.  In resolving that direct conflict of evidence, bearing in mind that once the Tribunal resolves which the date was, 11 or 19 April as the case may be, that will determine whether the application is or is not out of time.  The Tribunal prefers the evidence of the Respondents.  With regard to the Applicant’s evidence that is not at all credible on all the relevant issues.”

A little later they say:

“The dates and his evidence do not tally with the crucial documented evidence that is available to the Tribunal and the finding of facts is clearly in favour of the Respondents that the relevant conversations that took place between the Applicant and Mrs Denton did so take place on 11 April 2000 not 19 April 2000 which the Applicant maintains.

Further, the Applicant’s argument that only on 26 April 2000 when he had a further conversation with Mr Tolladay that explained to him the reason why he had not been selected, does not bear substantiation from the evidence.  The Applicant knew on 11 April 2000 that he was not receiving an interview and had not been placed on the interview short list.  He knew that day and prior to that day the advice he had been receiving from LEODIS who were advising people in his circumstances.  He knew that he was not being listed and that he could have expected, as the advice he had been given indicated, an interview given his personal circumstances.  He was, therefore, fully aware on 11 April 2000 when he was informed that he had not been short listed of the reasons why he might wish to make a complaint, and if he wished to make a complaint that the complaint was available to him and that the time limits therefore must run from that date. Therefore, when he lodged his application on 18 July 2000 he was outside the three month time limit prescribed by paragraph 3 of Schedule 3 to the Act.”

A little later they say:

“It was not argued forcefully on his behalf that it was just and equitable for matters to be allowed to proceed as the primary arguments were entirely based on the arguments to support his evidence, which is found not to be credible, and arguments to support the contention in relation to events on 26 April 2000 which again has not been found to be a credible argument by this Tribunal.”

And finally of our quotations from the decision:

“In reality the Applicant has put all his eggs in one basket before this Tribunal in the way he has presented his evidence and the case before us and that argument has just not been credible and is not accepted.  Therefore, the Tribunal is unanimous that it does not have jurisdiction to hear the Applicant’s complaint.”

7.	So we must therefore proceed on the basis that the conversation with Mrs Denton, by which he was informed that he would not be short listed, was 11 April.  However, a number of points require a little thought.  Firstly, the respondent’s own case was that Mr Tolladay did not speak to Mr Sadiq until 26 April (see IT3 paragraph 6) rather than 21 April as Mr Sadiq himself says.  It was then, say the respondents, 26 April, that Mr Sadiq was told why he had been unsuccessful (see IT3 paragraph 6).  Secondly, it is the respondent’s case that Mr Tolladay did not then say that Mr Sadiq met all the essential criteria (see page 16, paragraph 7).  But, (a) it had been Mr Sadiq’s case that that was the position, namely, that Mr Tolladay had told him that he met all the essential criteria and, (b) the Employment Tribunal makes no finding either way on that particular point.  We cannot simply assume that in that regard Mr Sadiq is wrong as no finding has yet been made on the point;  indeed for the purposes of a preliminary hearing as to jurisdiction, given his allegation and no finding to the contrary, we must, we think, assume, that it was not until 21 April, perhaps even 26 April, that he was told that he had failed to be short listed despite fulfilling all the essential criteria.  On any footing, it was not until 21 April (Mr Sadiq’s case) or 26 April (the respondents’ case) that Mr Sadiq was told the reasons why he was unsuccessful.  

8.	Until then it seems to us at least arguable, (and, of course, at this stage all we are concerned about is what is arguable) that the applicant, Mr Sadiq, had no reason to suspect disability discrimination.  It was only when he was told, on his version, that despite having fulfilled all the essential criteria, he was not, even so, to be short listed or, alternatively, on being told why he had been unsuccessful (which is the respondents’ version) that a conclusion, given his understanding of Leeds’ policy of granting an interview to persons who were disabled, would be likely to have led him to the conclusion that, at least arguably, he could have suffered disability discrimination.  The Tribunal’s view, as we have seen, was:

“He was, therefore, fully aware on 11 April 2000 when he was informed that he had not been short listed of the reasons why he might wish to make a complaint.”

But the question is not properly whether he was informed of the reasons such that might make him wish to make a complaint but when was it that he had sufficient information to apprehend that he had, as it would seem to him, the necessary ingredients for a complaint of disability discrimination?

9	Moreover, Mr Sadiq had asked for a review on 11 April 2000 (see the IT3 paragraph 4). The review was on 12 April 2000 (see the IT3 paragraph 5).  Leeds’ case was that Mrs Denton had said that Malcolm Tolladay would inform him of the results of the review (IT3 paragraph 4).  There is no assertion or finding as to when, if ever, the decision on the review was given to Mr Sadiq.  If the event complained of could be said to be that Leeds failed to short list him on discriminatory grounds notwithstanding that he had asked for a review and could expect to await the result of the review, then he might conclude that time did not begin to run against him until he was told the result, which, on the respondents’ case, was 26 April which would, of course, put his IT1 in time.

10	A further area of unease is the Employment Tribunal saying that in reality he had put all his eggs in one basket, namely, that he had asserted only that the IT1 was not out of time.  It is, contrary to that, plain from other references that Mr Sadiq had argued also the justice and equity of an extension of time - see references in paragraphs 7, 8 and 9 of the Extended Reasons.  It may be said that the view that Mr Sadiq had put all his eggs in one basket led the Tribunal not sufficiently to examine the just and equitable side of the matter.

11	So there are three misgivings which, separately or perhaps cumulatively only, amount to an arguable - and we only have to say that - an arguable error of law.  We cannot pretend that Mr Sadiq’s prospects of ultimate success are at all rosy.  His credibility has already been very severely criticised and he is or seems to be asserting that he should have been treated more favourably than the undisabled.  In other words that he should be given a preference over those who were not disabled.  And that is going to lead him into difficulties under the Act.  One can see from section 6(7), which specifically deals with adjustments, that it is arguable that it is not the function of the Act to put the disabled in a better position than are the able bodied, if that is the proper term for the other class.  It could, of course, be a contractual breach if Leeds bound themselves in contract to give preference to the disabled but that is not relevant to this claim, which was not in contract but solely in disability discrimination.

12	The Notice of Appeal as currently framed, we do not think adequately, as it stands, raises the points of possible doubt and arguable error of law which we have mentioned.  We do not however bar any particular part of that existing Notice of Appeal. What we do do is we give leave to Mr Sadiq by his advisers within no more than 10 days after receiving the transcript of this judgment to amend the Notice of Appeal, if they so think that fit, to add grounds and to subtract grounds.  The added grounds cannot go beyond the ones which we have touched on as being arguable errors of law but we would invite thought to be given as to how far the existing grounds can be pruned out.  If the amendment is not made, well then, of course, the matter goes forward only on the grounds as they are currently framed.  More generally skeleton arguments should be exchanged between the parties not less than 14 days before the hearing, the matter will be listed for one hour and in category C.