Appeal No.	 EAT/10/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 February 1999
Judgment delivered on 20 July 2000

Before
THE HONOURABLE MR JUSTICE CHARLES
MR P M SMITH
MISS S M WILSON

MR G CONNOR (Deceased)	APPELLANT

BRITISH TELECOMMUNICATIONS PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P O’BRIEN
(Representative)	
For the Respondents	MR C WYNTER
(of Counsel)
Solicitor
Instructed By:
British Telecommunications Plc
Group Legal Services
Redwing House
Timbold Drive
Milton Keynes
MK7 6TT	

	MR JUSTICE CHARLES:      The parties to this appeal are Mrs G Connor and British Telecommunications Plc (the Respondent to the appeal and in the proceedings before the Employment Tribunal).

1.	At the beginning of the hearing of this appeal we were informed that Mrs Connor is the personal representative of her husband Mr Connor who unfortunately had died since the hearing before the Tribunal.  Mr Connor was the Applicant before the Tribunal.  We were also told that no point was taken by the Respondent that Mrs Connor was not entitled to pursue this appeal and we proceeded to hear the appeal on the assumption that she was so entitled as Mr Connor’s personal representative.

2.	As appears later in this judgment at a late stage in the argument Mrs Connor’s representative raised a new argument which caused us to adjourn the hearing and direct that the parties put in written submissions.  During that adjournment the judgment of this Tribunal in Lewisham and Guys Mental Health NHS Trust v Andrews was reported in the Times.  It was to the effect that Mrs Connor could not pursue the appeal.  This resulted in it being agreed that any further consideration of this appeal should await the decision of the Court of Appeal in the Lewisham case.  That decision was to the effect that Mrs Connor could pursue the appeal.

3.	We have therefore with the consent of the parties dealt with this appeal on the basis of the oral submissions we heard when the appeal first came on in February 1999 and the written submissions put in thereafter.  As appears later in this judgment we consider a point concerning the decisions in the cases of  O’Neill v Symm & Co Ltd [1998] IRLR 233 and Clark v TDG Ltd t/a Novacold [1999] IRLR 318.  Both of these cases post date the decision of the Tribunal.  Neither of the parties made, or sought to make, submissions on these cases and having regard to our reasoning and conclusions in respect of those cases we did not invite them to do so.

4.	At the outset of this judgment we would like to record our sympathies for Mrs Connor and that we understand why she wanted to proceed with this appeal.  We also accept that she believes that the Tribunal reached the wrong conclusion.  However, for the reasons we give in this judgment we have concluded that this appeal should be dismissed.  In short, in our judgment, the Tribunal did not err in law and a fair reading of their Extended Reasons shows that they explain adequately why Mr Connor’s claims were dismissed.  Indeed in our judgment when the Extended Reasons are read fairly in the light of the background knowledge of the parties they explain clearly why Mr Connor’s claims were dismissed.  

5.	The appeal is against part of the decision of the Employment Tribunal which sat at Ashford, Kent, on 23 and 24 September 1997.  Before the Tribunal Mr Connor was represented by a Mrs Ainsley of the CWU and the Respondent was represented by Counsel, who has also represented them before us.  The Tribunal’s Extended Reasons were sent to the parties on 29 September 1997.  The Tribunal dismissed Mr Connor’s claim of unlawful discrimination on the ground of disability which was presented on 6 March 1997. The Tribunal also dismissed Mr Connor’s claim for victimisation which was presented on 19 July 1997.  Following the preliminary hearing before this Tribunal no appeal is pursued against the decision of the Tribunal to dismiss Mr Connor’s claim for victimisation.

6.	A preliminary hearing of this appeal was held on 20 July 1998 before this Tribunal.  The order that was made was that the appeal be allowed to proceed to a full hearing in accordance with the judgment given on 20 July 1998.  That judgment was given by the President of this Tribunal and includes the following passage:

“The Employment Tribunal concluded at paragraph 17 of their decision that:
‘It is a fact that the Applicant did not receive notification of interest form, nor was his name put forward by his Manager’.
It is that which is said to have led to him not obtaining employment of the sort that he was seeking.  The Tribunal therefore had to ask themselves the question, was the non-receipt of the notification of interest form and was the fact that his manager did not put his name forward, attributable to his disability?  They do not deal, as it seems to us arguably, with the second contention which was put forward, namely that managers were putting forward some employees’ names, but not the Applicant’s name.  Paragraph 18 arguably only deals with the non-receipt of the form.  That is an issue which should be addressed at a full hearing of the Employment Appeal Tribunal and it is one which can be dealt with in a relatively small compass.”

7.	This citation from the judgment on the preliminary hearing identifies the basis upon which the appeal was opened before us on behalf of the Appellant.  This opening was on the basis that:
	(a) 	the Tribunal correctly identified in, for example, paragraph 1 of their Extended Reasons when they describe Mr Connor’s first claim as follows:

“1  The Applicant, Mr Connor, has made two claims.  The first Originating Application was presented on 6 March 1997 and claims that the Applicant has suffered unlawful discrimination on the ground of his disability because, when certain vacancies arose in December 1996 / January 1997, he was not sent a ‘notification of interest form’ and was not put forward or selected for core jobs because of his disability.”

that his claim had two limbs, but
	(b)	in their conclusions and reasoning the Tribunal do not deal with the second limb of that claim, namely that Mr Connor was “not put forward or selected for core jobs because of his disability”.  

8.	In his oral submissions Mr O’Brien, on behalf of the Appellant, in fact concentrated on the point that Mr Connor was not selected rather than on the point that he was not put forward.  This is in contrast with the ground of appeal as identified by this Tribunal on the preliminary hearing which concentrated on the point that Mr Connor was not put forward by his manager.  Mr Connor’s manager was a Mr Jim Bloomfield.

9.	At a later point in his submissions Mr O’Brien introduced a new and imprecise argument based on the then recent decision in Goodwin v The Patent Office  [1999] IRLR 4 to the effect that the Tribunal had failed to refer to the Code of Practice and the Guidance Notes to the Disability Discrimination Act 1995.  In view of the point that at the time the Tribunal heard this case this Act was new the Respondent through its Counsel, in our judgment properly, did not object to these arguments being raised.  But both because they were new and imprecisely formulated he was not in a position to fully deal with them.  We therefore directed that sequential skeletons be served and provided to us in respect of these additional arguments.  We deal with these arguments later in this judgment under the heading “The Additional Arguments”.   

10.	As appears from the judgment given on the preliminary hearing another point raised at that hearing was the status of a letter written on behalf of the Respondent by a Mr John Langley to Mr Connor.  This letter has the heading “Grievance Procedure” and was written in response to a letter from Mr Connor dated 18 May 1997.  Both letters were therefore written after Mr Connor made his application claiming that he had been unlawfully discriminated against on the grounds of his disability.

11.	It seems that at the preliminary hearing those representing the Appellant may have placed some weight on this letter from John Langley and a statement that had by then been made by the Chairman of the Tribunal relating to this letter.  That statement was a comment on paragraph 6 (1) of the Amended Notice of Appeal which is in the following terms:

“6(1)  The Tribunal’s conclusion that they could find no evidence of any direct discrimination on the grounds of the Appellant’s disability, and they could not draw any inference that there had been any unlawful discrimination (paragraph 18 of the Extended Reasons) was perverse and one that no reasonable tribunal properly directing itself could have reached, because the Tribunal failed to consider the totality of the evidence before it relating to discrimination, and in particular failed properly to consider (or to consider at all) a letter sent to the Appellant on or about 8th September 1997 by John Langley, a senior manager with Respondent, which contained the following paragraph:
‘I have also looked into the initial exercise where FRU people were asked to work on the Hardwire Project.  Your FRU line manager felt that your restrictions prevented you from carrying out the work, again there were concerns that these duties could have an impact on your health.  I believe that he should have discussed the job and its requirements with you, rather than leaving you to have to press to be included on the project team and to come up with a solution - lying on the floor - which enabled you to work on the project without damaging your health’.
The letter was produced at the Tribunal hearing and read out aloud by the Appellant from the witness stand.”

12.	The comment of the Chairman on that paragraph was as follows:

“(1)  The Tribunal considered all the evidence presented to it:  John Langley did not give evidence.  The letter dated 8 September 1997 was not an exhibit.”

13.	At the preliminary hearing this Tribunal (as it turned out correctly) decided that the status of this letter could be clarified by further inquiry being made of the Chairman.  The focus of attention at that stage was on the question whether or not the letter was an exhibit.  We are unclear why it mattered whether or not the letter was an exhibit.  The essential question was whether it was before the Tribunal.  As appears from the Amended Notice of Appeal the Appellant was maintaining that it was and so far as we are aware it must always have been common ground between the parties that this letter was before the Tribunal.

14.	We have a copy of the letter which is undated.  The fact that it is undated may explain why in his first response the Chairman said that the letter dated 8 September 1997 was not an exhibit.  On further enquiry the Chairman responded as follows:

“The Chairman states that the exhibit A3 was referred to in the evidence of Mr Connor.  It was a reply he received the first week of September to a letter Mr Connor wrote on 18 May 1987 (stet) R1 49.”

15.	It may be that the paragraph from the September 1997 letter quoted in paragraph 6(1) of the Amended Notice of Appeal was a factor in the thinking behind the conclusion reached by this Tribunal on the preliminary hearing.

16.	We agree with the Respondent that the issues raised as to the status of this letter were  red herrings.  This is because as was, or should have been, known to those advising the Appellant:  
(a)  	it was common ground that this letter, which was written shortly before the hearing, was before the Tribunal as the Appellant alleged, and this was confirmed by the Chairman and would have been confirmed by the Respondent, 
(b)  	it is clear from the letter when it is read as a whole that the paragraph quoted above does not relate to the job in respect of which the complaints are made in these proceedings but to an earlier job and therefore the paragraph records the attitude of Mr Connor’s line manager, Mr Bloomfield, in 1996 in respect of a different job which as events turned out Mr Connor did by carrying it out lying on his back, and
(c)  	the contents of this letter as to Mr Bloomfield’s attitude concerning the earlier job are clearly part of the background referred to by the Tribunal in paragraphs 2 and 15 of the Extended Reasons and it is apparent that the letter was relied on by Mr Connor during the hearing before the Tribunal.

17.	It is thus clear that the letter, and what it revealed as to the attitude of Mr Bloomfield in respect of an earlier job was before the Tribunal.  

18.	It is against this background that (i) the findings of the Tribunal as to what Mr Bloomfield did in respect of the job that Mr Connor did not apply for or get, and which was the subject of the proceedings, and (ii) the reasoning and conclusions of the Tribunal, must  be considered.

19.	It is to be noted that this Tribunal on the preliminary hearing did not consider that paragraph 6(1) of the Amended Notice of Appeal revealed an arguable point.  This was an assertion of perversity on the basis that the Tribunal failed to consider the totality of the evidence before it and in particular the letter sent to the Appellant on or about 8 September 1997.  We comment that we agree that this ground of appeal did not raise a point of law that was reasonably arguable.  In our judgment it is quite clear from the Extended Reasons read with the background knowledge of the parties that the Tribunal did take this letter into account and that the conclusion they reached was within the range of conclusions that an Employment Tribunal properly directing itself on the law could reach on the facts.
 
20.	It was agreed by the parties that Mr Connor was a disabled person within the Disability Discrimination Act 1995.  

21.	In paragraph 8 of their Extended Reasons the Tribunal set out their findings of fact in the following terms:

“8  We find the following facts:-
(1)  The Applicant commenced employment with the Respondent on 25 September 1972, and has remained in employment ever since.  The Applicant is still employed by the Respondent.  The Applicant is a Survey Officer.
(2)  The Applicant is disabled having bilateral hip osteoarthritis.  The disability has an impact upon the Applicant’s mobility and his ability to lift and carry everyday objects.
(3)  The Respondent’s Occupational Health Service report dated 1 February 1996 (R1/146) shows that the Applicant was fit for restricted duties only, and was prohibited from kneeling, climbing ladders, lifting and prolonged sitting and bending.
(4)  In about March 1996, the Applicant became a redeployee, and was placed into a redeployee group under the reference of ‘NLX’.
(5)  The Respondent has a Flexible Resource Unit (FRU) and that unit sought to place people from the NLX redeployee team into permanent posts.
(6)  The FRU offered certain training and employees within the unit received a weekly copy of ‘Job News’ and notification of individual vacancies as they arose.
(7)  Mr G E Tolfts is the head of the FRU.  He has seven Managers reporting to him, and the present number of redeployees within the unit is presently approximately 250.
(8)  Towards the end of 1996, the Applicant had been given work as a Hardware Engineer, carrying out work on hard wiring projects.
(9)  In December 1996, Mr Tolfts was advised that 79 permanent jobs had become available outside the FRU to carry out hard wiring work.  Six of the vacancies were for Managers, and 73 of the vacancies were for engineers.
(10)  The Respondent does have an NLX vacancy process, the details of which are shown commencing at R1/19.
(11)  The vacancies had been foreshadowed in the Team Brief produced by the FRU in October 1996 (R1/153-154).  The Team Briefs were sent to all members of the FRU.
(12)  It was Mr Austin-Smith’s job to process vacancies, and he was notified of this particular job vacancy, details of which are shown at R1/29.  In addition, all NLX Field Managers were notified of the vacancies through the fax sent to all Field Managers and shown at R1/37.  The Managers were informed that separate notification was sent by mail directly to each employee within the NLX group (including the Applicant).  Furthermore, the Managers were encouraged to help the employees under them apply for suitable vacancies.
(13)  The Applicant’s particular Manager at this time was Jim Bloomfield.
(14)  It was Mr Austin-Smith’s job to organise the notification of the vacancies and the mailing of the vacancies to the appropriate employees.  His department therefore sent details of the job vacancy (R1/29), a specimen notification of interest form (R1/30) and the Manager recommendation sheet (R1/37) to the Mailing Department at Enfield.
(15)  The department at Enfield dealt with the mailing of the vacancies by way of grades.  The grades for this vacancy were shown as ‘T2A/TO/ST’.  The computer at Enfield was able to produce the names and addresses of all employees of those grades and then suitable envelopes and address labels were generated to enable the notification of vacancy to be sent to employees.
(16)  The notifications were despatched on 19 December 1996, and the response date was shown as 3 January 1997, although this was subsequently extended to 6 January 1997. There was a certain degree of urgency in dealing with these vacancies, and it was not felt appropriate to extend the deadline beyond 6 January 1997.
(17)  Mr Austin-Smith’s department retained vacancy progress forms, a specimen of which is at R1/35.
(18)  It was not the Applicant’s habit to call into the office each day, nor was he in the habit of logging on by telephone to Mr Bloomfield.
(19)  The vacancy notifications were sent out on or about 19 December.  Shortly afterwards, Mr Bloomfield left a message on his answerphone, reminding his employees of the vacancy and of their opportunity to apply.
(20)  In common with others, the Applicant went on holiday for the Christmas period and returned to work on or about 6 January 1997.  The Applicant had not received any form notifying him of the vacancy.
(21)  Mr Bloomfield also spoke to the engineers when they visited his office, to remind them to make application.  Mr Bloomfield compiled a list of his staff and ticked off their names as they were spoken to.
(22)  On 8 January 1997, Mr Bloomfield sent a fax to Nigel Purvey, 
stating:-
‘Nigel.  As per call, list of people that I think should be considered for Hardwire Core post but have not applied (applied late)’.
Underneath were four names, including the Applicant’s, against which was written ‘(has not see (sic) registration of interest form)’.  Colin Campbell had a similar comment.  It was noted that Keith Blakley was on leave in Thailand and Jeff Isted was on annual leave and applied upon his return.
(23)  Round about the week commencing 13 January 1997, the Applicant spoke to Mr Blookfield (sic) asking about the vacancies.  The Applicant was told to ring Mr Purvey.  The Applicant subsequently spoke to Mr Purvey, who said that he would see if he could get Mr Connor into the team by having a word with the Tier Manager, David Haigh.  However, nothing materialised because the selections for the vacancies had taken place on 6 January.”

We pause to comment that this is an important finding, namely that the selections had taken place on 6 January.  We return to the findings of fact contained in paragraph 8 of the Extended Reasons:

“(24)  Bob Joy, Tony Swinburn, John Daniels and Colin Campbell were other people who had not received the notification of interest form in the post.
(25)  The Applicant did not get a core post, but he did continue to carry out some hardwiring work.
(26)  ...
(27)  ...
(28)  Mr Wall was the Applicant’s first line manager since April 1997, but he was not aware of the Employment Tribunal claim until July 1997.  At the relevant time, Mr Tolfts, Mr Austin-Smith and Mr Purvey were not aware of the fact that the Applicant was disabled.”

22.	Sub-paragraphs 8 (26) and (27) of the Extended Reasons deal with the listing of the case and the victimisation claim.

23.	The Tribunal record the submissions of the parties in respect of the claim for discrimination as follows:

“9  On behalf of the Respondent, Mr Wynter conceded that for the purposes of these proceedings the Applicant was ‘disabled’.  He pointed out that in accordance with section 5 of the Act, there had to be less favourable treatment and that had to relate to the disability.  He also pointed out that it followed that those who were alleged to have discriminated must have known of the disability.  He pointed out that there was a properly laid down process for filling vacancies and that this had been carried out through Mr Tolfts and Mr Austin-Smith and the Enfield office, and that the majority of the notifications had been sent by post and received.  He also pointed out that there had been team briefings which gave notice of the vacancies and that Mr Bloomfield had himself put a message on the answerphone and spoken to the Managers he had seen.  Mr Purvey, who was engaged in the selection process, did not know that the Applicant was disabled.  He pointed out that there were no vacant posts after 6 January and that if the Applicant was not selected, it cannot have been because of his disability.
11  On behalf of the Applicant, Mrs Ainsley submitted that the Applicant had been a good worker who had worked within the hardwiring group, but that he did not get a form.  She pointed out that others who had not received forms in the post had nevertheless achieved the job, and she submitted that that was because the Managers had selected those whom they wanted to do the work.  She said that the Applicant was not selected because of his disability.  She pointed in particular to the case of Mr Isted, who appeared to have returned his form late.”

It is the point made as to knowledge of the disability made by counsel for the Respondent which  is recorded without comment and thus with apparent unqualified acceptance in paragraph 9 of the Extended Reasons, and the point that in the Extended Reasons the Tribunal take an approach that is akin to that taken under the Race Relations Act 1976 and the Sex Discrimination Act 1995 that has caused us to consider the O’Neill and Clark cases (see paragraphs 3 and 35 to 40 hereof).

24.  	The relevant findings of the Tribunal are in the following terms:

“The Findings:

14  The issues in this case are relatively simple, and the facts are not greatly in dispute.
15  The Applicant has referred to various matters prior to 2 December 1996, but these can only provide general background information and cannot form any part of his claim to us.
16  The Applicant’s claim to us centres on the fact that he did not receive the notification of interest form, and subsequently was not appointed to a core position.
17  It is a fact that the Applicant did not receive the notification of interest form, nor was his name put forward by his Manager.  To that extent he was treated less favourably than some of his colleagues.  We have to ask ourselves what was the reason for the less favourable treatment, and was it a reason which related to his disability.  In this exercise, we have to listen to the Respondent’s evidence, to decide whether or not we accept that evidence and whether or not we can draw any inference that the Applicant’s less favourable treatment was related to his disability.
18  We have heard a lot of evidence about the vacancies themselves, about the procedure for notification and the procedure for selection.  We accept the Respondent’s evidence on these matters.  We can find no evidence of any direct discrimination on the grounds of the Applicant’s disability, nor can we draw any inference that there has been any unlawful discrimination.  The Applicant did not receive the notification of interest form, but then neither did his own witness, John Daniels.  No one has been able to explain why some people did not receive the forms, but it is clear that there was no conspiracy to keep the vacancies from the Applicant just because of his disability, particularly as most of those involved in the despatch of the forms did not know the Applicant was disabled.”

25.	It is clear from the first sentence of paragraph 17 that the Tribunal had in mind the facts that (i) Mr Connor did not receive the notification of interest form, and (ii) Mr Connor’s name was not put forward by his manager Mr Bloomfield.  Further it is apparent from the second sentence of paragraph 17 that the Tribunal had regard to both of these matters in concluding that he was treated less favourably than some of his colleagues.

26.	In considering the remainder of the reasoning of the Tribunal it has to be remembered that:
(a)  	The Tribunal find that the vacancies were filled on 6 January.
(b)  	The Tribunal make a number of findings as to what Mr Bloomfield did to alert employees of the vacancies, which included leaving a message on his answerphone.  Mr Connor could have phoned in and obtained that message although the Tribunal find it was not his practice to ring in regularly.
(c)  	The Tribunal find that, albeit after the date upon which the vacancies were filled, Mr Bloomfield did put Mr Connor forward with others for the job.
(d)  	When Mr Connor spoke to Mr Bloomfield about the job he put him in touch with Mr Purvey, and
(e)  	Mr Austin-Smith and Mr Purvey did not know that Mr Connor was disabled.

27.	It is a matter of speculation whether Mr Connor would have been offered one of the vacancies if either:
 	(a)  	he had received the relevant forms and returned them, or
(b)  	he had been put forward for the vacancy by his manager, Mr Bloomfield.

28.	However, in our judgment on a fair reading of the Extended Reasons (and in particular paragraph 17 thereof) the Tribunal found that Mr Connor was not considered for the job because:
	(a)	he did not get the relevant forms, and
	(b)	he was not put forward by Mr Bloomfield.
The Tribunal therefore find that both of these points made up the reason (or in other words were the reasons) why Mr Connor was less favourably treated, and go on to consider:
(a)	whether the reason for the less favourable treatment and thus both of the above points related to Mr Connor’s disability, and 
(b)	whether they could draw an inference that the less favourable treatment was related to Mr Connor’s disability, and thus whether the facts stated in paragraph 17 of the Extended Reasons that Mr Connor “did not receive the notification of interest form, nor was his name put forward by his manager”, were related to his disability.

29.	As to the form their reasoning was not effectively criticised on this appeal and it was not an aspect of the reasoning and approach of the Tribunal that this Tribunal considered on the preliminary hearing gave rise to a reasonably arguable point of law.

30.	As to the fact that Mr Connor was not put forward, as we have said the Tribunal make a number of findings as to the conduct of Mr Bloomfield in respect of the vacancies.  Having regard to those findings, and notwithstanding the attitude of Mr Bloomfield as recorded in the September 1997 letter from Mr Langley, in our judgment on a fair reading of the Extended Reasons it is clear that:
(a) 	the Tribunal took those findings, and the evidence upon which they were based, into account, when reaching their conclusion as expressed in paragraph 18 of the Extended Reasons that they could find no evidence of any direct discrimination on the grounds of Mr Connor’s disability and they could not draw the inference that there had been any such discrimination, and
(b)	those conclusions include, or encompass, a finding or conclusion that the reason why Mr Bloomfield did not put Mr Connor forward for the job was not related to Mr Bloomfield’s knowledge that Mr Connor was disabled, indeed in our judgment it is clear that if the Tribunal had thought that the reason why Mr Bloomfield did not put Mr Connor forward was related to Mr Bloomfield’s knowledge of Mr Connor’s disability  they would have expressed themselves differently and would have reached a different conclusion.

31.	In our judgment it follows that the overall conclusion of the Tribunal that there was no unlawful discrimination is based on findings, or conclusions, that:
	(a)	in not putting Mr Connor forward Mr Bloomfield was not motivated by his knowledge that Mr Connor was disabled, and Mr Bloomfield’s reason for not doing so was not therefore related to Mr Connor’s disability, 
	(b)	the reason why Mr Connor did not receive the notification of interest form was  not related to his disability, and
	(c)	they should not infer that the reason Mr Connor did not receive the form and was not put forward for the vacancy by Mr Bloomfield, or anybody else, was a reason which related to Mr Connor’s disability.

32.	By way of completeness we add that a Mr Isted is specifically referred to in the submissions recorded in the Extended Reasons as being made on behalf of Mr Connor.  No further mention is made of Mr Isted in the Extended Reasons.  His notification of interest form is included in the bundle that was before the Tribunal.  The dates shown on this document are inconclusive.  The date next to Mr Isted’s signature is simply January 97, it bears a fax date 5 January 1900 (sic) and the box stating “received at the NLX Vacancy office” bears the date 7 January 1997.  At one stage during his submissions it seemed that Mr O’Brien on behalf of the Appellant was asserting that employees (perhaps including Mr Isted) were appointed to the vacancies after 6 January 1997.  However, after taking instructions he did not persist in this assertion and there is no evidence before us that any of the vacancies were filled after 6 January 1997.  As we have pointed out the finding of the Tribunal was that the vacancies were filled on 6 January 1997 and the reason Mr Connor was not considered was because he had not received a notification of interest form and had not been put forward by Mr Bloomfield, or anyone else.

Conclusion on the arguments opened on behalf of the Appellant

33.	As appears above, in our judgment, it is clear from a fair reading of the Extended Reasons that the Tribunal concluded that:
	(a)	Mr Connor was not appointed to one of the vacancies because he was not considered when the vacancies were filled and that this was because he did not receive the notification of interest form and was not put forward prior to 6 January when the vacancies were filled, and 
	(b)	his non-receipt of the form and the fact that he was not put forward and therefore the fact that he was not considered for the vacancies were not related to his disability.

34.	Accordingly these arguments fail.

The decision in the O’Neill and Clark cases

35.	In our judgment the Clark case is authority for the propositions that:
(a) 	in determining whether a person has been less favourably treated under s. 5 (1)(a) Disability Discrimination Act 1995 knowledge by the relevant decision makers of the disability is not a necessary, or vital, ingredient, of the statutory test, and
(b)	the approach taken by and under the Sex Discrimination Act 1975 and the Race Relations Act 1976 is different to that taken by and under the Disability Discrimination Act 1995 and it may be positively misleading to approach and apply the 1995 Act with, or on the basis of, assumptions and concepts familiar from experience of the workings of the 1975 and 1976 Acts. 

36.	 It follows in our judgment that the conclusion of this Tribunal in the O’Neill case as to the relevance of knowledge is no longer good law.  However that does not mean that in every case such knowledge is irrelevant in respect of the statutory test posed by s. 5 (1)(a) Disability Discrimination Act 1995.  This is because in some cases such knowledge will be relevant to show that the reason for the less favourable treatment relates to the disability.  In the examples given in the Clark case this was not the case and in those (and many other) cases the reason will necessarily relate to the disability, but in other cases it seems to us that knowledge and/or motivation would need to be shown, or inferred, to establish that the reason for the less favourable treatment relates to the disability.

37.	In our judgment this is such a case in respect of the two reasons why Mr Connor was not considered as a person who could fill the vacancies and therefore was treated less favourably, namely that he did not receive the notification of interest form and he was not put forward by Mr Bloomfield.  As to the first there is no necessary connection with his disability and in our judgment it follows that motivation, and thus knowledge, is relevant to establish the relationship between the reason and the disability.  As to the second the same points apply and in any event it was common ground that Mr Bloomfield knew of Mr Connor’s disability and in our judgment it follows that the relevant and essential question was the one considered by the Tribunal namely whether  Mr Bloomfield was motivated in not putting forward Mr Connor by the fact that he was disabled.

38.	Additionally in our judgment the point that is confirmed in the Clark case that it may be positively misleading to approach the application of the Disability Discrimination Act by applying the approach, concepts and assumptions taken under the Sex Discrimination Act and the Race Relations Act does not in the circumstances of this case mean that because the Tribunal understandably (see the Clark case paragraph 30) took an approach that was akin to that taken under such earlier legislation, they erred in law.  In our judgment this is because for the reasons we have given motivation, and thus knowledge, were relevant in this case in determining whether the less favourable treatment was related to Mr Connor’s disability and therefore the approach under the earlier legislation which was adopted by the Tribunal in this case could properly be applied by analogy and was not misleading.  

39.	It follows in our judgment that no point arises that the Tribunal erred in law by reference to the decision in the Clark case (which post dates the decision of the Tribunal in this case) 

40.	Further, and in any event, in our judgment no exceptional, or sufficiently exceptional, circumstances exist to warrant leave being given to the Appellant to pursue  arguments based on the Clark case (see, for example, Biggs v Somerset County Council [1996] ICR 364 at 374D, and  Jones v Governing Body of Burdett Coutts School [1999] ICR 38).

The Additional Arguments

41.	To some extent in his written submissions Mr O’Brien on behalf of Mrs Connor inappropriately sought to reiterate some of the submissions made orally. To the extent that he did so we have already covered the relevant points.  

42.	It was submitted on behalf of Mrs Connor  that the fact that the Tribunal do not refer to any of the provisions of the Code of Practice should lead to the result that this case should be remitted by us to an Employment Tribunal for further consideration either because (a) such failure of itself leads to that result and in respect of this point reliance was placed on Goodwin v The Patent Office [1999] IRLR 4, or (b) such failure ought to leave this Tribunal in sufficient doubt to require that the case be remitted and, in respect of this point, reliance was placed on Morse v Wiltshire County Council [1998] ICR 1023 at 1031B and Kenny v Hampshire Constabulary [1999] ICR 27 at 37.  In support of those submissions it was asserted that the following provisions of the Code are relevant, namely (i) the general advice following the heading  “Setting up management systems to help avoid discrimination” (paragraph 4.55 onwards) but only paragraph 4.56 was specifically referred to, and (ii) the specific provisions entitled “Discrimination against Employees” (paragraph 6.1 onwards) but only paragraphs 6.4 and 6.6 were specifically mentioned.

43.	We reject these submissions for the following reasons:
(1)	The provisions identified on behalf of Mrs Connor were not relevant in this case having regard to the manner in which it was presented at the Tribunal and before us.  In this context we comment:
(a) as to paragraph 4.55 that it was never in issue that the Respondent was responsible for the actions of its employees, 	
 (b) as to paragraph 4.56 that in general terms this concerns the communication of policy on disability matters, making staff aware that it is unlawful to discriminate against disabled people, the giving of guidance on non-discriminatory practices and the implementation of such policies, guidance and practices, and it was not asserted that any policies or guidance were defective or lacking or the reason for Mr Connor being treated less favourably.  Thus, for example, it was not asserted that the NLX vacancy process referred to in paragraph 8(10) of the Extended Reasons was defective or a cause of the less favourable treatment the at staff should be made aware, 
(c) as to paragraph 6.1 that it was never in dispute that the discrimination referred to therein would be unlawful, and
(d) as to paragraphs 6.4 and 6.6 (which refer in more detail to matters referred to in paragraph 6.1) it was never in dispute that discrimination in respect of such matters was unlawful.
(2)	The guidance given in the Goodwin case refers to relevant provisions of the Code and therefore does not lead to a conclusion that the provisions identified by Mrs Connor should have been mentioned.
(3)	In any event the guidance given in the Goodwin case as to what should be included in Extended Reasons should , in our judgment, be read with the general approach and guidance on that point contained in for example Meek v City of Birmingham District Council [1987] IRLR 250 in particular at 251 and High Table v Horst [1997] IRLR 513 at 518 (paragraph 24).  When this is done in our judgment it leads to the conclusions that even a failure to expressly mention a relevant provision of the Code does not necessarily lead to a result that the case should be remitted on the basis that the relevant Employment Tribunal have failed to properly explain their reasoning, or otherwise.
(4)	For the reasons we have set out in our judgment the Tribunal in this case properly explain why they have reached their conclusion and no doubts are raised by the submissions made on behalf of the Appellant that warrant a remission of the case to the same or a different Employment Tribunal.

44.	Additionally, and if and to the extent that it was being submitted on behalf of Mrs Connor by reference to the Code, or otherwise, that (i) there was a lack of policy, procedure or guidance, or (ii) the policy, procedure or guidance of the Respondent was defective and these assertions provide a reason why Mr Connor was not considered for, or offered, the relevant job and/or that if there had been some other policy, procedure or guidance he would have been considered for that job, we reject those submissions because:
(a)	they are unparticularised and in our judgment on the findings of the Tribunal (and the documentary evidence we have seen) they are not reasonably arguable, and in any event
(b)	they are new points (i) which were not identified at the hearing before us, (ii) which it has not been asserted were raised before the Tribunal, and (iii) which would require new evidence, and therefore in our judgment they are points that Mrs Connor should not be allowed to pursue on this appeal (see Jones v Governing Body of Burdett Coutts School [1999] ICR 38).

Overall Conclusion

45.	For the reasons we have given this appeal is dismissed.