Appeal No. UKEAT/0059/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2004

Before
HIS HONOUR JUDGE PETER CLARK
MRS C BAELZ
MR K EDMONDSON JP

MR A SKINNER	APPELLANT

LEISURE CONNECTION PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ALISTAIR B HODGE
(of Counsel)
Instructed by:
Messrs Blue Star Universal Solicitors
203/209 North Gower Street
London NW1 2NJ	
For the Respondent	MS IMOGEN NOONS
(Representative)
Instructed by:
Croner Consulting
Croner House
Wheatfield Way
Hinckley
Leicestershire LE10 1YG	

SUMMARY

Disability Discrimination / Practice and Procedure

At a directions hearing sole issue identified as alleged breach of section 5 (1) DDA.  In considering justification under section 5 (3) ET made findings under section 5 (5) amounting to breach of section 5 (2).  Application dismissed.  Not open to A to contend that ET ought to have upheld complaint under section 5 (2) for first time on appeal.

HIS HONOUR JUDGE PETER CLARK

1.	We have before us an appeal by the Applicant, Mr Skinner and a cross-appeal by the Respondent, Leisure Connections plc, arising out of the final decision of an Employment Tribunal sitting at London (South) under the Chairmanship of Miss R A Lester, promulgated with Extended Reasons on 21 October 2003, dismissing the Applicant’s complaint of unlawful disability discrimination contrary to the Disability Discrimination Act 1995 (“DDA”).

2.	In order to understand the issues raised in the appeal and, so far as is necessary, the cross-appeal, we must first follow the procedural history.

3.	The Applicant commenced these proceedings by an Originating Application presented on 3 September 2002.  He was then employed by the Respondent as a lifeguard at Streatham Leisure Centre. The nature of his complaint was that he was dyslexic and that this amounted to a disability within the meaning of DDA.  The acts of discrimination alleged were (a) that he had not been sent on training courses and (b) that he had unsuccessfully applied for the post of duty officer at the Respondent’s Crystal Palace site.  We are concerned with the second of those allegations, the first not having been pursued, although we are told by Ms Noons that on two occasions application was made on behalf of the Applicant before the Employment Tribunal to resurrect the training course allegation, but permission to do so was not granted.

4.	The claim was resisted and a directions hearing was held on 20 December 2002 before a Chairman, Mr R Peters, sitting alone.  In the resulting Order for Directions dated 3 January 2003 the issues for determination were identified at paragraph 5 of the Order as follows:

“5	The Applicant asserts that the discrimination arises under section 5 (1) of the Disability Discrimination Act 1995.
(i)	the less favourable treatment being the failure to consider the Applicant (despite interview) for the post of duty officer at Crystal Palace in August 2002
(ii)	the Applicant believes that was for a reason related to his disability because the Applicant was perceived as being unable to perform the functions of the job which perception was due to his dyslexia.”

5.	On 7 May 2003 the preliminary issue as to whether or not the Applicant was disabled came before Miss Lester’s Tribunal.  By a decision with Extended Reasons promulgated on 13 June 2003 (“the first decision”) that Tribunal concluded that he was disabled.

6.	The next hearing took place before the Lester Tribunal on 7 - 8 August 2003.  On that occasion, by a decision with Extended Reasons dated 18 August (“the second decision”) the Tribunal held that in not selecting the Applicant for the Duty Officer post at Crystal Palace the Respondent had treated him less favourably than it treated or would treat others who were not disabled by reason of his disability.  Prima facie discrimination under section 5 (1) (a) DDA was made out.

7.	The Tribunal did not then deal with the defence of justification raised by the Respondent under section 5 (1) (b) DDA.  Instead they gave directions for the later determination of that issue.  Specifically by an order also dated 18 August the Tribunal directed the parties to lodge written submissions dealing with (a) legal argument about the relevance (if any) in this case of sections 5 (5) and 6 DDA, and (b) relying only on facts already found by the Tribunal; the application to those facts of the provisions of sections 5 and 6 of the Act.

8.	Written submissions were duly lodged and on 30 September the Lester Tribunal met in Chambers to reach their final determination contained in their third decision promulgated with Extended Reasons on 21 October, which is now the subject of the appeal and cross-appeal with which we are concerned.
9.	In the third decision the Tribunal made the following findings:

(1)	They directed themselves as to the scheme of section 5 (1) disability discrimination, i.e. having found (a) that the Applicant was disabled and (b) had been subjected to prima facie discrimination under section 5 (1) (a), the question of justification under section 5 (1) (b) was to be approached in this way.  First, section 5 (5) provides:

“If, in a case falling within section (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 considered it necessary to decide (a) whether the Respondent was under a section 6 duty, that is, to make reasonable adjustments; (b) if so, whether the Respondent had failed without justification to comply with that duty; and (c) whether the prima facie discrimination was justified under section 5 (3) even if the Respondent complied with the section 6 duty.  Section 5 (3) provides

“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.”

(2)	As to the section 5 (5) question the Tribunal found (a) that although the Respondent did not know that the Applicant was disabled by virtue of his dyslexia (second decision, para. 19), the Respondent could reasonably be expected to know of the disability so that the defence available to the Respondent under section 6 (6) DDA did not exclude a section 6 duty; (b) the Respondent was in breach of its duty under section 6 (1) to make reasonable adjustments in the matter of the Applicant’s application for the Duty Officer post by failing to give him more time to complete the practical exercise which formed part of the selection process for that post; by reading out the instructions which he was to follow and by giving him those instructions bit by bit.  The particular practical exercise with which the Applicant found difficulty was setting up a hall in accordance with a diagram and written instructions for a game of netball (second decision, para. 8); (c) the Respondent had not justified their failure to make those adjustments within the meaning of section 5 (4) which provides:

“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."

(3)	The Tribunal nevertheless went on to find that even had the Respondent complied with its section 6 duty in relation to the exercise carried out to test candidates for the Duty Officer post, the Respondent’s failure to offer the post to the Applicant would have been justified within the meaning of section 5 (3), thus negativing unlawful section 5 (1) discrimination by virtue of section 5 (1) (b) on the grounds that his non-appointment was for reasons which were both material to the circumstances of the case and substantial, namely the Applicant’s lack of supervisory experience, lack of organisational experience (reinforced by his failure to complete the setting-up test) and also his performance at interview.  The reasons for the prima facie discriminatory treatment (that is, non-appointment to the duty officer post) were substantial in that his lack of supervisory experience and lack of ability to set up halls under pressure would seriously affect the running of the Respondent’s business.  The decision not to appoint him was well within the range of reasonable responses open to a reasonable employer in the circumstances of the case (see Jones v The Post Office [2001] IRLR 384).  Accordingly the claim failed.

The Appeal

10.	In advancing this appeal Mr Hodge, who did not appear below, takes essentially two points.

(1)	Section 5 (2) Disability Discrimination

11.	Mr Hodge submits, correctly, that the scheme of section 5 DDA gives rise to two separate and distinct forms of unlawful discrimination: section 5 (1) discrimination, that is less favourable treatment by reason of disability without justification and section 5 (2) discrimination, that is, failure to comply with a section 6 duty to make reasonable adjustments, again, without justification.

12.	The short point here is that on the face of the Tribunal’s third decision reasons the Tribunal found that section 5 (2) discrimination had been made out.  The lack of knowledge defence under section 6 (6) was rejected by the Tribunal; there were reasonable adjustments which should have been made to remove the disadvantage to the Applicant identified in section 6 (1) and the Respondent had failed to make out the justification defence under section 5 (4).  Accordingly, he submits, the Tribunal ought to have upheld the Applicant’s complaint under section 5 (2), if not section 5 (1), as to which more later.

13.	We see the force of that submission; however, it runs into this difficulty.  As Ms Noons submits, the case proceeded below throughout on the basis of a section 5 (1) complaint only.  That was the issue identified at the original directions hearing in December 2002; it never altered throughout the ensuing proceedings.

14.	Mr Hodge argues (a) that the Originating Application complained of disability discrimination; and that embraces both section 5 (1) and 5 (2) discrimination; and (b) in considering the application of section 5 (5) for the purposes of the section 5 (1) justification defence, the Tribunal necessarily made all relevant findings for completing the statutory tort under section 5 (2).  Ms Noons accepts that those findings were made, subject to her cross-appeal against the finding that the Respondent failed to make reasonable adjustments under section 6.

15.	It seems to us that this first ground of appeal raises a familiar procedural point, but one which, Mr Hodge claims, has not arisen in this form before.

16.	First, the nature of the original complaint.  We do not accept that the complaint of disability discrimination necessarily involves allegations of both section 5 (1) and section 5 (2) discrimination.  That was the view of the EAT in Quarcoopome v Sock Shop [1995] IRLR 353; in that case that a claim under the Sex Discrimination Act 1975 or Race Relations Act 1976 covered any claim under those acts whether direct or indirect discrimination or victimisation.  However that proposition was disapproved by a later division of the EAT in Lewis v Blue Arrow Care Ltd [1999] EAT/694/99, following the Court of Appeal decision in Housing Corporation v Bryant [1999] ICR 123, and again by the EAT in Smith v Zeneca [2000] ICR 800.  We prefer to follow the later cases.

17.	The position is further affirmed in our judgment by the identification of issues in the directions order by Mr Peters in this case.  Directions hearings in discrimination cases are important.  They set out, among other things, the issues between the parties which will arise for determination at the substantive hearing.  It is essential that parties bring forward the whole of their case at that stage.  The Applicant was represented on that occasion and no submission was made that a section 5 (2) claim was advanced.  The case then proceeded through its various stages thereafter on that basis.  It would be unfair, in our view, to the Respondent, now to effectively allow an amendment to add a different and additional cause of action.

18.	Such a course would also be inconsistent with the well-established body of authority prohibiting new points to be raised for the first time on appeal, save in exceptional circumstances (none arising in this case).  See particularly Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 and Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719.

19.	Mr Hodge makes the point that it would be a strange result if, having found all the ingredients of section 5 (2) discrimination to be made out in this case, the Tribunal did not then go on to make a finding of section 5 (2) liability on the part of the Respondent.  That may also be said of Jones where the EAT, so the Court of Appeal held, allowed a point abandoned below to be taken on appeal and upheld it as a matter of law.  The Court of Appeal agreed with the EAT’s finding on the law but restored the original Tribunal decision on the basis that the EAT ought not to have permitted the point to be revived on appeal.

20.	Finally, we bear in mind cases such as Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 where the Court of Appeal held that the EAT was wrong to set aside an Employment Tribunal decision which did not rule on a matter raised in the Applicant’s Originating Application but not pursued by her during the Tribunal hearing and Chapman v Simon [1994] IRLR 124, paragraph 36, where Peter Gibson LJ held that it was not open to an Employment Tribunal to uphold a complaint of unlawful discrimination on a basis not advanced by or on behalf of the Applicant.

21.	Faced with this weight of authority we cannot accept Mr Hodge’s submission that the circumstances of this case permit us to uphold a section 5 (2) complaint not advanced below, simply because the ingredients of that breach of the Act appear from the Tribunal’s findings necessary for the application of section 5 (5) to the justification defence to the section 5 (1) complaint.  It follows that this first ground of appeal fails.

(2)	Section 5 (3) Justification

22.	Mr Hodge attacks the Tribunal’s finding that the section 5 (3) justification defence to the section 5 (1) claim was made out by the Respondent.  In doing so he submits that the Tribunal failed to carry out the balancing exercise between the interests of both Applicant and Respondent, to which I adverted in Baynton v Saurus [1999] IRLR 604; that in purporting to apply the range of reasonable responses test approved by Arden LJ in Jones v The Post Office, the Tribunal substituted their own view for that of the employer and that they erred in their approach to the question of whether the Respondent’s reasons advanced for the prima facie section 5 (1) discrimination were both material and substantial.

23.	We have considered those submissions but, put shortly, we reject each of them.  We can see no patent misdirection in the Tribunal’s approach at paragraphs 16-17 of their third decision reasons.  Their conclusion as to justification, largely a question of fact for the Employment Tribunal, was a permissible one on the primary facts as found.

24.	It follows that this appeal fails and is dismissed.

Cross-Appeal

25.	Ms Noons has made clear that her cross-appeal against the Tribunal’s finding that the Respondent failed to make reasonable adjustments under section 6 will only be pursued in the event that the appeal succeeds in part or in whole.  It has failed.  Accordingly, we have heard no argument on the cross-appeal and make no order on it.