Employment: the 'justification' rules

The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website).

Section references
are to DDA 1995 as amended, available on the DRC website - 'DDA and related statutes'.

This page summarises the rules as to when the employer has a 'justification' defence to disability-related discrimination. WARNING: this page may be of very limited relevance at the moment - the Malcolm decision means there may in practice be very little to which this justification defence can apply!

Even where a person has brought themselves within 'disability-related discrimination', despite the Malcolm case, it is not a breach of the DDA if the employer shows the treatment was "justified". The exception is 'direct discrimination', which can never be justified.

The employer's obligation to make reasonable adjustments must be taken into account. The treatment can only be justified if it would still be justified after any reasonable adjustments required by the DDA have been made (see Reasonable adjustments).

Reason must be 'material' and 'substantial'

For the employer's less favourable treatment of the person to be justified, the reason must be both:

material to the circumstances of the particular case, and
substantial
(new section 3A(3), old section 5(3) #).

The Code of Practice (para 6.3) says: "This is an objective test. 'Material' means that there must be a reasonably strong connection between the reason given for the treatment and the circumstances of the particular case. 'Substantial' means, in the context of justification, that the reason must carry real weight and be of substance." This reflects comments by Arden LJ in Jones v Post Office (2001).

Restriction of tribunal's ability to substitute its own view for employer's

The most important case on justification at present is Jones v Post Office (2001), a Court of Appeal decision. The Court held that a tribunal could not substitute its own assessment for that of an employer as to how long it was safe for a diabetes sufferer to be on driving duty. Tribunals could not disagree with a risk assessment which is properly conducted on the basis of appropriate medical evidence, provided that it produces an answer which is not irrational. I find the precise reasoning and scope of the decision difficult to understand. Also the case may be inconsistent with the Framework Employment Directive in allowing a non-objective test of justification. Some effects of the case may be mitigated by the fact that direct discrimination can no longer be justified from October 2004.

In a subsequent case, Collins v Royal National Theatre (2004), the Court of Appeal summarised the facts in Jones and said the court there had decided "(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." The Court of Appeal there was perhaps seeing the case as going beyond the risk assessment type situation with which Jones itself was concerned.

The Court of Appeal (Mummery LJ) in Williams v J Walter Thompson Group (2005), whilst upholding a decision in favour of the employee, took a similarly broad view of the Jones case:

According to Jones what is material to the particular circumstances of the case and what is substantial, as a reason for the purposes of establishing the justification defence under s5(3), is a matter for the decision of the employer. It is not for the tribunal to substitute its own decision as to whether the reason relied on by the employer is material and substantial. The function of the employment tribunal, in adjudicating on the employer's defence of justification, is to apply an objective test to the reason relied on by the employer and to the known facts. The approach is similar to the familiar band or range of reasonable responses test applied by an employment tribunal in determining whether a dismissal by an employer is unfair. It is for the employment tribunal to decide whether the reason advanced by the employer for the treatment of the disabled employee was within or outwith the range of what a reasonable employer would have relied on as a material and substantial reason for less favourable treatment or for failure to make reasonable adjustments.

Interaction with reasonable adjustments

As stated above, reasonable adjustments need to be taken into account - in other words less favourable treatment is only justified if it would still be justified after any reasonable adjustments required by the DDA have been made (see Reasonable adjustments).

Possible effect of Framework Employment Directive

In my view - and so far as I know this is only my view - there is a a strong argument that from October 2004 (or 2006?) the threshold for justification is effectively higher than is generally applied in the UK.

In effect, under the Framework Employment Directive less favourable treatment should not normally be justifiable unless the employer's reason is objectively justified by a legitimate aim and the means of achieving that aim (eg the failure to employ) are appropriate and necessary. It seems to me that where this is not achieved by the existing justification test, the Framework Employment Directive will require it to be achieved through the reasonable adjustment obligation.

The employer would be required to make a reasonable adjustment either (a) so that the disabled person can meet the criterion which is being applied or (b) by disapplying the criterion, ie by the employer disapplying his reason for not employing the disabled person (Article 2(2)(b) of the Directive).

UK legislation, including the reasonable adjustment provision, needs to be interpreted in conformity with the Directive so far as possible.

Before October 2004

The justification test is the same before October 2004 as it was before, with the difference that from October 2004 'direct discrimination' can no longer be justified.

However, at one time the justification test was given perhaps a different interpretation from the current one. The 1996 Code of Practice said in para 4.6 said the justification test meant that the reason has to relate to the individual circumstances in question and must not just be trivial or minor. Even before 2004, Arden LJ in the Court of Appeal case of Jones v Post Office (2001) discussed what is meant by "material" and "substantial", and some of her comments seem difficult to reconcile with the 1996 Code of Practice. The new Code of Practice reflects Arden LJ's comments.

In Baynton v Saurus General Engineers the Employment Appeal Tribunal had said that there should be a balancing exercise between the interests of employee and employer, taking into account the applicant's circumstances as well as the employer's. The EAT in Kenrick v HJ Heinz Co Ltd (1999) agreed that the circumstances of both employer and employee should be taken into account. However, it also said that, whilst it would not preclude some balancing, what had to be borne in mind was the statutory test. The Court of Appeal in Jones v Post Office (2001) stresses the statutory test, looking at whether the reason given is material and substantial.

The EAT in Kenrick pointed out that the threshold for the employer to meet in showing justification was low - 'substantial' meant merely more than "minor" or "trivial". The tribunal was unenthusiastic about reaching that conclusion but considered that any remedy was for the legislature rather than the courts. The EAT in A v London Borough of Hounslow rejected an argument for a higher threshold based on the European Convention of Human Rights. Arden LJ in the Jones Court of Appeal case talks more in terms of "substantial" meaning that "the reason must carry real weight and thus be of substance". Of course the reason must also be 'material to the circumstances' for the justification defence to succeed.

The comments above apply to justifying "less favourable treatment". Until 1st October 2004 it was also possible to justify a failure to make reasonable adjustments under old s.6. Old s.5(4) # set out this justification defence, and is in similar terms to the old s.5(3) defence considered above which applies to less favourable treatment. However the Court of Appeal in Collins v Royal National Theatre (2004) held that in a reasonable adjustment case the justification defence under old s.5(4) is heavily restricted - one cannot justify a breach of old s.6 (the duty to make reasonable adjustments) by reference to factors properly relevant to the establishment of a duty under old s.6.

Further discussion of how "justification" applies to stammering.

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Employment: the 'justification' rules

Reason must be 'material' and 'substantial'

Restriction of tribunal's ability to substitute its own view for employer's

Interaction with reasonable adjustments

Possible effect of Framework Employment Directive

Before October 2004

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