The Court of Appeal 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.
The employer had obtained what were admitted to be suitably qualified and expert medical opinions. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and it not irrational, the tribunal could not substitute its own appraisal. It would be different if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision maker.
Court of Appeal, 2001. Full judgment: bailii.org. This is a decision on the Disability Discrimination Act 1995, not the Equality Act 2010.
The driver of a mail delivery van had been diagnosed with mature onset diabetes. He was initially treated by diet, but when insulin was prescribed he was removed from driving duties. This was required by the Post Office’s standards for professional drivers. The Post Office reviewed the case and was willing to let the driver take on driving duties for no more than 2 hours in any 24 hour period. This was unacceptable to the driver.
Under what is now section 3A(3) DDA, less favourable treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
The employment tribunal in this case accepted the driver’s claim of disability discrimination on the basis that limiting driving to the 2 hour period was not justified. The tribunal heard medical evidence brought by both parties and commented that it took the approach of considering whether the driver by reason of his condition posed a risk which fell above or below the line of acceptability. The tribunal set out the criteria on which the Post Office’s Principal Medical Adviser relied and stated that few of them applied to the driver. The possible risk was of the driver having a “hypo”, an attack affecting function, the severity of which may vary. The Post Office had accepted that the risk was sufficiently low when the driver was on tablet treatment and, on the tribunal’s view of the evidence, the greater risk posed by the driver now requiring insulin was “negligible”. The tribunal preferred the evidence of the medical expert brought by the driver (the evidence of this expert had not been available to the Post Office when the decision was taken). The Post Office had therefore failed to show it was “justified” in treating the driver less favourably, ie limiting his driving duties.
On appeal the EAT overruled this decision, holding that the function of the employment tribunal in reviewing the Post Office’s assessment of the risk should be more limited.
The driver appealed unsuccessfully to the Court of Appeal:
Court of Appeal judgments
There were three judges sitting in the Court of Appeal. The main judgment was given by Pill LJ (LJ stands for Lord Justice or Lady Justice – ie Lord Justice Pill). Kay LJ agreed with both the reasoning and conclusions of Pill LJ, so by a majority Pill LJ’s judgment was adopted by the court. Arden LJ (Lady Justice Arden) also agreed with the judgments of the other two judges but does not clearly say whether she agreed with their reasoning.
Arguments by the employee and employer (taken from judgment of Pill LJ)
The driver’s counsel had submitted that when the “reason” relied on by the employer for the less favourable treatment is a belief about the effects of a disability, the tribunal must determine objectively whether the belief is correct. If the employer wrongly believes that the disability constitutes a safety risk, the reason is not “material”. The tribunal can also decide whether the reason is “substantial”. It would offer little protection if the employer’s belief, right or wrong, is to be accepted. Accordingly the tribunal should consider the medical evidence afresh, make its own risk assessment and decide whether the less favourable treatment is justified. Counsel pointed out that the justification test for employment had deliberately been made different from that for goods and services, which looks at the reasonable opinion of the service provider.
The Post Office’s counsel pointed out that it would be a criminal offence not to fulfil its duties under health and safety legislation as regards health and safety of both employees and non-employees, and that regulations require it to conduct a risk assessment and to have regard not only to the position of the particular employee but also to other employees and to the public. The driver’s argument would leave the employer vulnerable to claims for systems of work devised not by the employer but by the employment tribunal. The driver’s counsel submitted that the tribunal’s decision would provide a defence to a damages claim against the employer.
Main judgment – Pill LJ
All judges concurred with this judgment.
The tribunal may not have understood the medical evidence properly, but Pill LJ was content to decide the appeal on the basis of the more general arguments presented by the parties as to the interpretation of what is now s.3A(3) DDA.
The 1996 Code of Practice did not provide help with the point of statutory interpretation now in issue. Apart from being “illustrative only” (para. 3.1 of the 1996 Code), para. 4.6 was tantalisingly silent as to the role of the employment tribunal.
From consideration of the wording of what is now s.3A(3) in context, the employment tribunal are confined to considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial. The less favourable treatment in this case was the limit upon the hours of driving. The reason given for it was the risk arising from longer periods of driving. The Post Office obtained what were admitted to be suitably qualified and expert medical opinions. On the basis of those it decided that the risk was such as to require less favourable treatment. The Post Office asserts in this case that the risk arising from the presence of diabetes is material to the circumstance of the particular case and is substantial. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the tribunal cannot substitute its own appraisal. The tribunal must consider whether the reason meets the statutory criteria; it does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment.
The present problem would typically arise where a risk assessment is involved. The tribunal is still permitted to investigate facts, eg as to a person’s time-keeping record or rate of productivity. Consideration of the statutory criteria may also involve an assessment of the employer’s decision to the extent of considering whether there was evidence on the basis of which a decision could be properly taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision maker, the tribunal could hold the reason insufficient and the treatment unjustified.
The tribunal could not, however, conclude that the reason is not material or substantial because the suitably qualified and competently expressed medical opinion, on the basis of which the employer’s decision was made, was thought by them to be inferior to a different medical opinion expressed to them. Moreover, a reason may be material and substantial even if the tribunal would have come to a different decision as to the extent of the risk. An investigation of the facts by the tribunal will often be required but it cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors and produces an answer which is not irrational.
Agreed entirely with the reasoning and conclusions of Pill LJ.
In a case such as the present where evidence (medical or otherwise) which was not available to the employer is put before the tribunal, provided the employer has taken into account all the evidence reasonably available to it, including if medical issues are raised, sufficiently well-qualified expert medical evidence, then the fact that other evidence is available by the time of the hearing cannot render the treatment unjustified.
Where evidence emerged after the employer’s decision suggesting the original evidence to be wrong, the employee might ask for a reconsideration. If the employer failed to take it into account (eg by asking its medical experts to consider the contrary medical opinion), the continued treatment might cease to be justified but not the original decision.
Agreed with both judgments.
In the justification test, “material” and “substantial” cover different subject matter. “Material” denotes the quality of the connection which must exist between the employer’s reason for discriminating and the circumstances of the particular case. These circumstances may include those of both employer and employee (Baynton v Saurus (on bailii.org)). The use of the word “material” rather than “relevant” or “applicable” indicates that there must be a reasonably strong connection between the employer’s reason and the circumstances of the individual case. It ought not to involve an enquiry into the medical evidence since this is relevant, if at all, to whether the reason is “substantial”.
Suppose that an employer of an employee with diabetes prohibits him from doing night-time shifts on the gounds that diabetes leads to diminished night-time vision. The employee’s counsel had argued that materiality also involved correctness. However, if the employer believed that diabetes diminished night-time vision but was entirely wrong in that belief, the requirement for materiality would still be met. But in that situation there would be difficulty in the employer meeting the second requirement of substantiality.
The requirement for the employer’s reason to be “substantial” means that the reason must carry real weight and thus be of substance. However, the word “substantial” did not mean that the employer must necessarily have reached the best conclusion that could be reached in the light of all known medical science. It is sufficient that the conclusion is one which on a critical examination is found to have substance. Thus a reason which on analysis is meretricious would not be a “substantial” reason.
Later in the judgment: If credible arguments exist to support the employer’s decision, the tribunal may not hold that the reason for the discrimination is not “substantial”. If, however, the the employer’s reason is outside the band of responses which a reasonable employer might have adopted, the reasons would not be substantial.
Disability Rights Commission reaction, and new rules
At least before October 2004, the Disability Rights Commission considered the current justificiation test too weak and that the Jones case moved the goal posts too far against disabled people. It said that the practical impact of the Jones decision is that disabled people have been prevented from bringing claims; have had to settle claims; or have had to withdraw claims which prior to Jones would have proceeded. Their casework and legal team reported having to reject cases that they would previously have regarded as meritorious, because of the Jones decision.
The DRC cited the subsequent Employment Appeal Tribunal decision in Surrey Police v Marshall  IRLR 843 commenting that it “illustrates how difficult it has become to challenge the decision of an occupational health doctor even where made purely on the basis of paperwork, without meeting the individual or seeking evidence from their specialist consultant.”
From 1st October 2004 ‘direct discrimination’ can no longer be justified. This may limit the effect of the case where a decision is based on unjustified assumptions. More on new ‘direct discrimination’ rules.
Furthermore, in 2007 a Green Paper proposed (subject to consultation) to change the justification test to whether the employer’s conduct is a ‘proportionate means of achieving a legitimate aim’. The Government says this would be a higher threshold than the present test. (More on proposed change..)
The case is one of the few DDA cases to have gone as high as the Court of Appeal. Court of Appeal decisions have particularly strong authority. Tribunals will need to follow the decision (though not necessarily all the comments made by the judges) unless and until the law is changed.
I find the precise reasoning and scope of the decision difficult to understand. Also, the case’s approach may be inconsistent with the Framework Employment Directive.
I found some of Arden LJ’s judgment particularly difficult in the light of the 1996 Code of Practice, but para 6.3 of the subsequent 2004 Code of Practice: Employment and Occupation (wypf.polfed.org) reflected what she says. Her description of the meaning of “substantial” seemed to differ from that in the 1996 Code, without her considering the fact. Also, Arden LJ appears to take the view that an incorrect assumption about a disability can be a reason “material to the circumstances”. She does not address the point that this seemed to contradict the first example in para. 4.6 of the 1996 Code. The example reads:
Someone who is blind is not shortlisted for a job involving computers because the employer thinks blind people cannot use them. The employer makes no effort to look at the individual circumstances. A general assumption that blind people cannot use computers would not in itself be a material reason – it is not related to the particular circumstances.
However, Arden LJ does make it clear that an employer who was entirely wrong in his belief would have difficulty showing that his reason was “substantial”. Neither of the other judges say whether they agree with Arden LJ’s judgment, which gives her judgment somewhat less weight. However, as I have said, the 2004 Code of Practice now seems to adopt Arden LJ’s views.
All the judgments (including that of Arden LJ) seem to agree that the employer does not have carte blanche to proceed on the basis of an incorrect assumption he may have about stammering or stammerers. Even where the matter is one on which the tribunal will not substitute its own assessment, it seems that the employer must at least take proper steps to look into the matter before he can show justification.
Another question is: in what matters will an employer be allowed the leeway discussed in this case. Pill LJ saw this leeway as applying typically where a risk assessment is involved. However the Court of Appeal in Collins v Royal National Theatre (on bailii.org), 2004, perhaps viewed Jones as having quite a general application beyond risk assessments: for example it said Jones 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 Williams v J Walter Thompson Group (on bailii.org), 2005, the Court of Appeal seems to have taken a similarly broad approach to the scope of the Jones decision.
See also: Obejective justification defence