Employers handed right to decide on DDA risks

Court
of appeal states tribunals may not overrule employers on legally justifiable
reason for determining how to interpret DDA

When an employee has a medical condition that impacts on their ability to do
their job, the employer will invariably have to consider whether the Disability
Discrimination Act 1995 is relevant to the situation before making any
decisions affecting the employee.

Clearly, the DDA does not apply unless the employee has a disability as
defined by the Act. Often this is not something the employer will be able to
ascertain for sure one way or the other. Even if medical advice states that the
employee does not have a disability, the definition is a legal one, so it will
often be safer for the employer to proceed on the basis that the employee does
in fact have a disability.

The DDA states that any less favourable treatment of an employee with a
disability is unlawful unless it can be justified, that is to say "if, but
only if, the reason for it is both material to the circumstances of the
particular case and substantial" (section 5(3)).

So even if the employee does have a disability, the employer will be able to
make its management decision (for instance, a review of the duties the employee
can undertake) without fear of legal liability, so long as that decision is
justified.

A recent case in the Court of Appeal, Jones v Post Office, 2001, IRLR 384,
has cast some light on how much latitude employers have in determining what is
and is not justifiable treatment.

Jones was a mail delivery driver with the Post Office. He was diabetic but
had been treating it without recourse to insulin. After suffering a heart
attack, his treatment was changed to insulin. Under Post Office medical
regulations, this meant he was required to cease all driving duties.

He objected to this alteration to the terms of his employment, and the Post
Office admitted that to remove all his driving duties did constitute
unjustified disability discrimination. But it was not prepared to restore him
to full driving duties, and instead placed a two-hour daily limit on his
driving. The Post Office considered this justified on the basis of medical
investigations it undertook.

But the tribunal hearing Jones’ claim decided that in disability
discrimination cases the tribunal, not the employer, should be the judge of
whether the employer’s less favourable treatment of an individual with a
disability is justified. Even if the employer’s decision was honestly and
rationally held, if it was not justifiable on an objective assessment by the
tribunal, it would not be lawful.

On the basis of the medical evidence presented at the hearing, the tribunal
decided that the PO’s decision to cap the number of hours of Jones’ driving
duties was wrong, and therefore unjustifiable within the meaning of the
Disability Discrimination Act.

The Court of Appeal disagreed with this approach. It held that, while
tribunals should investigate the processes followed by the employer in reaching
its decision, the DDA does not confer on them a general power to decide if the
employer’s assessment of risk is correct. Only if the employer’s decision is
irrational should the tribunal interfere with it.

This is a similar approach to that in unfair dismissal cases, but different
from the approach to justification in sex and race discrimination cases. The
House of Lords seems likely to be asked to rule. Meanwhile the decision gives
employers a lot of latitude in reaching decisions on whether a particular
course of action affecting an employee with a disability is legally
justifiable.

By Alastair Brunker, a solicitor with Shell International

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