Justifiable discrimination

recent ruling by the Court of Appeal means that, in certain circumstances,
discrimination against the disabled may be justifiable.  By Linda Farrell

A liberal Court of Appeal ruling means companies are protected over justifiable
discrimination of the disabled.

In Jones v Post Office, 2001, IRLR 384 the Court of Appeal takes a broad
view of the test for justifying disability discrimination and holds that it is
akin to the "range of reasonable responses" approach to considering
the reasonableness of a dismissal.

Jones worked for the Post Office as a mail delivery van driver. In 1979 he
was diagnosed as suffering from non-insulin-dependent diabetes. Following a
heart attack in 1997, however, he was prescribed insulin. Soon after, the Post
Office removed him from driving duties, in accordance with its medical fitness
standards for drivers which require that employees having insulin treatment
should cease driving duties.

After a review of his case, the Post Office offered to let Jones return to
limited driving duties not exceeding two hours a day. Jones brought a complaint
under the Disability Discrimination Act.

In the Court of Appeal, it was accepted that the two-hour limit on driving
duties amounted to less favourable treatment under section 5(1) of the DDA. So
the question was whether the limit was justified. Section 5(3) of the DDA
provides that less favourable treatment of a disabled person for a reason which
relates to the disability will be justified, "If, but only if, the reason
for it is both material to the circumstances of the particular case and

Objective test

Jones argued that when the "reason" relied on by the employer is a
belief about the effects of a disability, section 5(3) requires the tribunal to
apply an objective test. If the employer wrongly believes that the disability
constitutes a safety risk, the reason is not "material".

Similarly, he submitted that in determining whether the reason is
"substantial", the tribunal is entitled to test the reason and
determine whether the employer’s belief is well founded.

The employers argued that the role of the tribunal is restricted to
considering whether the reason put forward satisfies the criteria of being both
"substantial" and "material" and that the tribunal is not
permitted to substitute its own view on the matter.

The Post Office further relied on its duties under health and safety
legislation and argued that, if Jones’ interpretation was correct, it would
take decisions as to what is a safe system of work out of the hands of
employers and into the arena of the employment tribunal.

Court of Appeal decision

The Court of Appeal found for the employers. It held that the tribunal can
investigate the facts but only to enable it to consider whether the employer’s
reason is material and substantial. This may involve an assessment of whether
there was evidence on the basis of which the employer’s decision could properly
be taken.

But the tribunal was not permitted to substitute its own decision for that
of the employer. The Court of Appeal went further to say that the tribunal’s
function is "not very different" from the range of reasonable
responses test for unfair dismissal.

Thus, if no risk assessment was made or a decision was taken without
appropriate medical evidence or was an irrational decision, then the tribunal
can hold the reason insufficient and the treatment unjustified. Otherwise, it
is not open to the tribunal to decide the case on the basis of the decision it
would have reached on the evidence before it.

This liberal test means it will be much easier for employers to justify
discrimination under the Act. But it is out of line with the justification test
to be found under legislation covering discrimination against sex, race, equal
pay and part-time workers and with the new Employment Framework directive, all
of which apply an objective standard.

Key points

– Less favourable treatment may only be justified if the reason for the
treatment is both material and substantial.

– A tribunal may investigate facts but may not substitute its own decision
for that of the employer unless the employer’s decision is uninformed or

Linda Farrell is a partner at Bristows

Case roundup

Meaning of "dismissal" for DDA
Commissioner of Police of the Metropolis v Harley, unreported, February 2001,
EAT 185/2000

Under the Disability Discrimination Act 1995, it is unlawful for an employer
to discriminate against a disabled employee by dismissing him. But
"dismissal" is not defined. Here, the EAT considered the meaning of
dismissal in this context.

It held that a termination of the contract of employment by a unilateral act
of the employer (that is, an actual dismissal) is covered by the DDA. However,
the ending of a contract by effluxion of time (such as a fixed-term contract
which expires) and a constructive dismissal are not covered.

The EAT compared the wording of the Sex Discrimination Act 1975 (SDA) and
the Race Relations Act 1976 (RRA) with the DDA. There is no definition of
"dismissal" in the RRA and, originally, there was no definition in
the SDA until in 1986 it was specifically amended to include a termination by
effluxion of time and a constructive dismissal. Given the fact that Parliament
had clearly taken the view that such amendment was necessary, the EAT could not
hold that "dismissal" under the DDA was wide enough to cover these

Human rights, medical evidence and the DDA
De Keyser v Wilson, unreported, March 2001,
EAT 1438/00

Wilson raised a grievance with her employer about events at work which she
alleged had caused stress. She subsequently resigned, claiming unfair
constructive dismissal on the basis that the company had failed to deal
properly with her grievance.

She intended to rely on medical evidence and a chairman ordered that she be
examined by a specialist chosen by the company. The company wished to show that
the stress was more likely to have been caused by Wilson’s private life, so the
letter of instruction to the specialist referred to events in her private life.
Wilson’s representative complained and the tribunal struck out the company’s
Notice of Appearance, partly because it breached her right to privacy under the
Human Rights Act.

The EAT disagreed and noted that the information in the letter had not been
given by Wilson in confidence and although Wilson had a right to privacy, that
right was qualified by the right of litigating parties to have a just trial of
the issues.

Finally, the EAT gave guidance on the way expert evidence should be
collected in tribunal cases which expressed a preference for the joint
instruction of a single expert. If parties fail to comply with the EAT’s
guidelines, costs may be awarded.

Sara Lamont is a partner at Bevan Ashford

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