Appeal No. EAT/537/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 July 2001

Before
HIS HONOUR JUDGE PETER CLARK
SIR GAVIN LAIRD CBE
MISS S M WILSON

MR A C KNIGHT SNR	APPELLANT

DEPARTMENT OF SOCIAL SECURITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	MR QUINN
Appearing under the Employment Law Appeal Advice Scheme	

JUDGE PETER CLARK

1.	In this case presently proceeding in the Nottingham Employment Tribunal the Appellant Mr Knight brings this Appeal against a disclosure order made by the Chairman Mr Keevash at a directions hearing held on 13 February 2001 and confirmed in a later undated letter.  The original order was promulgated in a letter dated 27 February 2001.

2.	The Appellant commenced these proceedings by an originating application presented on 2 June 1999.  His complaint is that he was discriminated against on grounds of disability and/or sex in connection with an application which he made for employment in an administrative post at the benefits agency for which the Respondent department is responsible.

3.	The first issue in the case, it now being accepted by the Respondent that the Appellant is disabled within the meaning of section 1 of the Disability Discrimination Act 1995, concerns the terms on which the vacancy was advertised.  It is the Appellant’s case that he was entitled to a selection interview because he was disabled.  It is the Respondent’s case that the advertisement made clear that disabled applicants who possessed the minimum educational qualifications go straight to interview.  Those who do, not including this Appellant on the Respondent’s case, must first take a test.

4.	The Appellant sat the test and although initially informed by letter of 12 February 1999 that he had passed, a later letter dated 18 March corrected what is said to be an earlier error.  He had in fact, on the Respondent’s case, failed the test by scoring 40 marks when the pass mark was 42.  In these circumstances, say the Respondent, the Appellant was not invited to interview.  Subsequently 32 vacancies were filled; none by disabled applicants.

5.	The Appellant applied for specific disclosure prior to the directions hearing held on 13 February 2001.  He requested in addition to his own test paper the original test papers of the 32 successful applicants, the original test paper questions and the 32 successful applicants application forms showing their qualifications and experience for the job, the sex of the 32 successful applicants and their marital status and also sought the name of the recruitment officer and panel who interviewed the 32 successful applicants.

6.	At the directions hearing Mr Keevash made this order in relation to the disclosure application; that by 27 February 2001, 3 copies of the following documents would be lodged with the Tribunal:

1.	The applicants’ original test papers.
2.	The original test answer papers of the 32 successful applicants. 
3.	The original test questions taken by the 32 successful candidates.
4.	The application forms of the 32 successful candidates.

7.	The representative for the Respondent further confirmed that the Respondent would supply the Applicant, by 13 March 2001, details of the number of men, women and disabled persons who applied, took the relevant test and were successful in those tests.  The Chairman was not prepared to make an order requiring the Respondent to disclose the names of the recruitment officer and panel members who interviewed the 32 successful candidates.

8.	The last order made in the directions letter of 27 February 2001 dealt with the listing and time estimate for the substantive hearing of the case and this direction was given; that on the first day the members of the Tribunal will consider the documentation lodged by the parties.  The Tribunal will consider on that day the questions and answers for each of the successful candidates and the Applicant in order to ascertain whether or not the answers have been properly marked.  It will not be necessary for the parties to attend on that day.

9.	In this appeal which is currently before us for Preliminary Hearing to determine whether or not the appeal raises any arguable point of law which ought to go to a full hearing with both parties present Mr Quinn, appearing on behalf of the Appellant under the ELAAS Pro Bono Scheme, takes this point, that there is no direction that the documents which the Respondent was ordered to lodged at the Tribunal should be disclosed to the Appellant.

10.	However, it appears from the final direction given by the Chairman that on the first day of hearing, with the parties not present, the full Tribunal will look at those very documents in order to make a judgment on whether or not the answers given by the successful applicants have been properly marked.  

11.	It seems to us that there is a distinction between a Chairman refusing an Application for disclosure and secondly, the Chairman directing that the documents in issue should be lodged with the Tribunal in the event that a further disclosure application is made to that full Tribunal.  It is we think arguable on appeal that this Chairman’s order taken as a whole falls between two stools.  That is to say, documents currently in the possession of one party are to be lodged with the Tribunal without disclosure to the other party in circumstances where the full Tribunal are to carry out their own exercise in making a judgement as to whether or not the successful candidates’ papers have been properly marked, without hearing any representations by or on behalf of the Appellant, nor giving him an opportunity to check the documents himself.  In these circumstances whereas it is unusual for us to allow Interlocutory Appeals we think that there is sufficient to be argued to require a full Inter Partes hearing.

13.	In these circumstances we shall direct that the appeal proceed to a full hearing - to be listed as soon as possible in view of the age of this particular case.  So far as directions are concerned we will hear from Counsel.