Liberal
Court of Appeal ruling means companies are protected over justifiable
discrimination of 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
substantial".
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 & 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.
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.
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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
irrational.
By Linda Farrell, a partner at
Bristow
