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Collins v Royal National Theatre Board

February 2004, Court of Appeal

An employee was dismissed from the theatre's carpentry shop due to injury. The employment tribunal found that the theatre had failed to make sufficient reasonable adjustments under s.6 DDA.

The question arose whether, despite the fact that it would have been 'reasonable' to make further adjustments, the failure to make them could be 'justified' under old s.5(4). It could be relatively easy for the employer to establish justification under the test laid down in Jones v Post Office for very similar wording in old s.5(3) ( now new s.3A(3)), which relates to whether less favourable treatment is justified. The employer could simply put forward a reason for the failure which he himself considered, without irrationality but erroneously, to be material and substantial.

Held by the Court of Appeal: the only workable construction of old s.5(4) is that it does not permit justification of a breach of old s.6 to be established by reference to factors properly relevant to the establishment of a duty under s.6. The meaning of the closely similar words in old s.5(3) and old s.5(4) is materially different. Under old s.5(4), what is material and substantial for the purposes of justifying an established failure to take such steps as are reasonable to redress disadvantage cannot, consistently with the statutory scheme, include elements which have already been, or could already have been, evaluated in establishing that failure.

There was no reason to think that no circumstances can ever arise in which factors not apt for consideration under old s.6 prove material and substantial under old s.5(4); and if they do, the justification defence is there to accommodate them. In that event, old s.5(4) would operate as the Court of Appeal in Jones had held that old s.5(3) operates: anything else would be disruptive of precedent.

As regards old s.5(3), the Court of Appeal in Jones had held "(a) that materiality and substantiality were all that justification required, and (b) that what was material and what was substantial was for the employer to decide, the tribunal's only power being to decide whether the decision fell within the range of reasonable responses to the known facts."

In the present case the employee's case succeeded because everything going to justification was subsumed in the finding that a s.6 duty existed and was breached, leaving no room for a defence under old s.5(4).

The employee's counsel also argued that, even it he had lost on the point above, on the employment tribunal's findings the theatre had failed to surmount even the modest hurdle set by Jones, because the theatre's belief that there was now no feasible role for the employee was not based on any "genuine examination of what modifications to equipment could have been available to help him". In other words, it was not a reasonably held belief. However, the court did not find it necessary to decide this point, given that there was no room for a defence under old s.5(4).

Full judgment on Court Service website.

Comment

Since the decision in Jones limited the role of the tribunal in deciding whether actions of the employer were 'justified', there was the danger that the justification defence would also make serious inroads into the the employer's obligation to make reasonable adjustments. The Collins decision, however, makes it much more difficult for employers to use the justification defence in a reasonable adjustment case, even before October 2004. As the court comments, the defence is "heavily restricted".

With effect from 1st October, 2004, there is no longer a justification defence as regards the duty to make reasonable adjustments.

Employment: Reasonable adjustment rules

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Last updated 30th April, 2004