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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sadiq v. Leeds City Council & Ors [2001] UKEAT 11_01_2206 (22 June 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/11_01_2206.html Cite as: [2001] UKEAT 11_01_2206, [2001] UKEAT 11_1_2206 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
LORD DAVIES OF COITY CBE
MRS R A VICKERS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
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)
"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.
"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."
"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."
"(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.
"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."
"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?