Reasonable adjustment to the role of tribunals

The EAT has clarified the remit of tribunals in judging the reasonableness
of adjustments under the DDA

What is the role of an employment tribunal in judging whether an employer
has complied with the duty to make reasonable adjustments pursuant to section 6
of the Disability Discrimination Act 1995? This issue was considered by the
Employment Appeal Tribunal in Post Office v Jones, 2000.

Jones was employed by the Post Office as a postman in 1977. Two years later
he was diagnosed as a diabetic. Initially, his condition was controlled by diet
and drugs and did not affect his ability to drive. But in June 1997, he
suffered a heart attack and his dependency on medication was replaced by one on
insulin.

In accordance with its policy, the Post Office took the view that Jones was
no longer fit to perform driving duties because there was a risk that his
judgement might be impaired as a result of a "hypoglycaemic event".
Jones was therefore transferred to delivering mail by bicycle.

But in February 1998, following the submission of a tribunal claim by Jones,
the Post Office agreed to review its decision and in late April, Jones was
advised that the Post Office had decided to "relax its policy" and
allow him to return to driving duties for up to two hours in any 24 hours.

The proposal was subject to three conditions – one, that he should be
allowed time in his schedule to take appropriate steps to control his diabetes;
two, he should be allowed the flexibility to limit his driving duties if he
felt unwell and, three, his position should be reviewed every six months. Jones
rejected this proposal because of the continued restriction on driving.

The employment tribunal separated his complaint into three periods – the
initial period from September to February, when Jones was banned from driving,
the period from February to April when the driving ban was under review and the
final period following the outcome of the review.

In relation to the first period, the Post Office conceded that the outright
ban was discriminatory.

In relation to the second period, the tribunal accepted that
"justification may be valid for a temporary period" while an employer
is reviewing the position but concluded that this was not the position here. It
therefore upheld Jones’s complaint in relation to this period.

In relation to the final period, the tribunal concluded that it was
unnecessary to consider whether the Post Office’s proposal complied with its
section 6 duty to make reasonable adjustments. The tribunal therefore upheld
Jones’s complaint and recommended that Jones should be offered employment as a
driver subject to the conditions set out above. The Post Office appealed.

EAT decision

The EAT ruled:

• The tribunal’s conclusion that the Post Office had discriminated against
Jones under section 5(1) of the Disability Discrimination Act 1995 in the
second period was correct because it had not shown why it had taken so long to
review Jones’s situation.

• The tribunal had incorrectly concluded that the Post Office had
discriminated against Jones under sections 5(1) and 5(2) of the DDA because it
had failed to consider whether the Post Office had complied with its duty to
make reasonable adjustments pursuant to section 6 of the Act.

• The tribunal had wrongly substituted its assessment of the medical
evidence instead of considering whether the employer had acted reasonably in
the light of the evidence presented.

Anthony Korn is a barrister at Barnards Inn Chambers

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