Justifiable discriminationOn 1 Aug 2001 in Personnel Today Previous Article Next Article Comments are closed. Arecent 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 justifiablediscrimination of the disabled. In Jones v Post Office, 2001, IRLR 384 the Court of Appeal takes a broadview of the test for justifying disability discrimination and holds that it isakin to the “range of reasonable responses” approach to consideringthe reasonableness of a dismissal. Jones worked for the Post Office as a mail delivery van driver. In 1979 hewas diagnosed as suffering from non-insulin-dependent diabetes. Following aheart attack in 1997, however, he was prescribed insulin. Soon after, the PostOffice removed him from driving duties, in accordance with its medical fitnessstandards for drivers which require that employees having insulin treatmentshould cease driving duties. After a review of his case, the Post Office offered to let Jones return tolimited driving duties not exceeding two hours a day. Jones brought a complaintunder the Disability Discrimination Act. In the Court of Appeal, it was accepted that the two-hour limit on drivingduties amounted to less favourable treatment under section 5(1) of the DDA. Sothe question was whether the limit was justified. Section 5(3) of the DDAprovides that less favourable treatment of a disabled person for a reason whichrelates to the disability will be justified, “If, but only if, the reasonfor it is both material to the circumstances of the particular case andsubstantial”. Objective test Jones argued that when the “reason” relied on by the employer is abelief about the effects of a disability, section 5(3) requires the tribunal toapply an objective test. If the employer wrongly believes that the disabilityconstitutes 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 anddetermine whether the employer’s belief is well founded. The employers argued that the role of the tribunal is restricted toconsidering whether the reason put forward satisfies the criteria of being both”substantial” and “material” and that the tribunal is notpermitted to substitute its own view on the matter. The Post Office further relied on its duties under health and safetylegislation and argued that, if Jones’ interpretation was correct, it wouldtake decisions as to what is a safe system of work out of the hands ofemployers 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 caninvestigate the facts but only to enable it to consider whether the employer’sreason is material and substantial. This may involve an assessment of whetherthere was evidence on the basis of which the employer’s decision could properlybe taken. But the tribunal was not permitted to substitute its own decision for thatof the employer. The Court of Appeal went further to say that the tribunal’sfunction is “not very different” from the range of reasonableresponses test for unfair dismissal. Thus, if no risk assessment was made or a decision was taken withoutappropriate medical evidence or was an irrational decision, then the tribunalcan hold the reason insufficient and the treatment unjustified. Otherwise, itis not open to the tribunal to decide the case on the basis of the decision itwould have reached on the evidence before it. This liberal test means it will be much easier for employers to justifydiscrimination under the Act. But it is out of line with the justification testto be found under legislation covering discrimination against sex, race, equalpay and part-time workers and with the new Employment Framework directive, allof which apply an objective standard. Key points – Less favourable treatment may only be justified if the reason for thetreatment is both material and substantial. – A tribunal may investigate facts but may not substitute its own decisionfor that of the employer unless the employer’s decision is uninformed orirrational. Linda Farrell is a partner at Bristows Case roundupMeaning of “dismissal” for DDACommissioner of Police of the Metropolis v Harley, unreported, February 2001,EAT 185/2000Under the Disability Discrimination Act 1995, it is unlawful for an employerto discriminate against a disabled employee by dismissing him. But”dismissal” is not defined. Here, the EAT considered the meaning ofdismissal in this context.It held that a termination of the contract of employment by a unilateral actof 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 contractwhich expires) and a constructive dismissal are not covered. The EAT compared the wording of the Sex Discrimination Act 1975 (SDA) andthe Race Relations Act 1976 (RRA) with the DDA. There is no definition of”dismissal” in the RRA and, originally, there was no definition inthe SDA until in 1986 it was specifically amended to include a termination byeffluxion of time and a constructive dismissal. Given the fact that Parliamenthad clearly taken the view that such amendment was necessary, the EAT could nothold that “dismissal” under the DDA was wide enough to cover theseevents.Human rights, medical evidence and the DDADe Keyser v Wilson, unreported, March 2001, EAT 1438/00Wilson raised a grievance with her employer about events at work which shealleged had caused stress. She subsequently resigned, claiming unfairconstructive dismissal on the basis that the company had failed to dealproperly with her grievance. She intended to rely on medical evidence and a chairman ordered that she beexamined by a specialist chosen by the company. The company wished to show thatthe stress was more likely to have been caused by Wilson’s private life, so theletter of instruction to the specialist referred to events in her private life.Wilson’s representative complained and the tribunal struck out the company’sNotice of Appearance, partly because it breached her right to privacy under theHuman Rights Act. The EAT disagreed and noted that the information in the letter had not beengiven by Wilson in confidence and although Wilson had a right to privacy, thatright was qualified by the right of litigating parties to have a just trial ofthe issues.Finally, the EAT gave guidance on the way expert evidence should becollected in tribunal cases which expressed a preference for the jointinstruction of a single expert. If parties fail to comply with the EAT’sguidelines, costs may be awarded.Sara Lamont is a partner at Bevan Ashford Related posts:No related photos.