Appeal No. EAT/727/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 2000

Before
HIS HONOUR JUDGE H WILSON
MR P R A JACQUES CBE
MR K M YOUNG CBE

MR E OKOJAJA	APPELLANT

BLOCKBUSTER ENTERTAINMENT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS S BELGRAVE
Appearing under the 
Employment Law Appeal 
Advice Scheme

	

JUDGE H WILSON

1	This has been the preliminary hearing of the proposed appeal by the original Applicant against the decision of the Employment Tribunal sitting at Ashford, that his complaint of discrimination under The Disability Discrimination Act failed.  The proposed Appellant is being represented today by Ms Belgrave under the provisions of the ELAAS scheme, and she makes several points on his behalf.  

2	She submits first of all that the decision in itself is not adequately reasoned.  She points to the fact, for example, that there is no reference to the discomfort factor which might have been felt by the Appellant.  She concedes however that authority is against her over that, because the Appellant gave no advance notice of the fact that he was a paraplegic, confined to a wheelchair.  

3	The second point that she makes is that there is no indication whether or not the interviewing representative, Mr Cody, thought less of the Applicant because he was disabled.  

4	Thirdly that there is no evidence at all about any of the other applicants, and therefore no reference to a comparator.  

5	Finally and separately Ms Belgrave submits that the Applicant was disadvantaged by the refusal of the Tribunal to allow him to call a witness as to who was appointed and when.  

6	To deal with the final point first, the Chairman dealt with that in his note of 5 July, saying that the evidence required by the Applicant from that witness was speculative and not relevant to the issue whether or not the Applicant had been subjected to a detriment at his interview because of his disability.  

7	Turning to the other matters, we cannot find support for the matters raised by Ms Belgrave from a consideration of the decision itself.  In our view, the matters were, in fact, all satisfactorily dealt with.  We point to paragraph 10 and 11 of the decision:
“10     Mr Cody told us that the purpose of the interview was to investigate the depth of the Applicant’s experience and to assess his ability to work in a team and demonstrate leadership qualities in managing his staff……
11     After the interview Mr Cody did not think that the Applicant had demonstrated a sufficient skill base or enough relevant experience to merit a second interview or employment….”

8	Having, in paragraph 14, accurately reminded themselves of the case law, and in paragraph 15 of the statutory provisions, the Tribunal went on to find in paragraph 18 that:
“18    It is for the Applicant to establish that his disability was the effective and predominant cause of less favourable treatment.  We have been invited to draw an inference from the lack of employment of disabled persons that the company as a whole discriminated against disabled people.  But having seen the company’s discrimination policy and heard Mr Cody, we do not draw that inference.”

That is a finding of fact behind which we are not permitted to go.  Furthermore, paragraph 19 of the decision says that:
“19    Mr Cody explained his reasoning for not considering the Applicant for the position of Store Manager and we accept that evidence.  We find that the reason for not appointing the Applicant was based upon the Applicant’s particular skills and the practical experience required for the position of Store Manager and not the disability of the Applicant.”

9	The complaint was therefore dismissed and we can find no reason to suppose that if this matter proceeded to full argument, it would have any reasonable prospect  of success, and it must be dismissed therefore at this stage.