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Chambers & Partners
10/04/2001

Post Office v. Jones

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Court of Appeal

Section 5(3) Disability Discrimination Act 1995 confined the employment tribunal to considering whether the reason given for less favourable treatment could properly be described as both material to the particular circumstances and substantial. * Leave to appeal to the House of Lords refused.

The appellant employee ('J') appealed from the Employment Appeal Tribunal's decision to allow in part an appeal by the respondent company ('the PO') from a decision by the employment tribunal, whereby it found that the PO had discriminated against J on the basis of a disability. The appeal turned on the construction of s.5(3) Disability Discrimination Act 1995. J submitted that: (i) when the "reason" relied on by an employer for the purpose of that subsection was a belief about the effects of a disability, the tribunal was required to objectively determine whether that belief was correct; (ii) when an employer's false belief about the effects of a disability was that it constituted a safety risk, the "reason" was not material for the purposes of the subsection; (iii) the tribunal could determine whether the reason was "substantial"; (iv) medical evidence had to be considered afresh and the tribunal had to make its own risk assessment; (v) it would be fundamentally wrong to import the approach to unfair dismissal into s.5(3) of the Act; and (vi) a ministerial statement when moving an amendment to a clause demonstrated a clear intention to depart from a test based on an employer's opinion.

HELD: (1) The ministerial statement did not assist the case because it did not attempt to define the proposed role of the tribunal with the new test. (2) The complex nature of the Act was acknowledged by Mummery LJ in Clarke v Novacold (1999) ICR 951. The construction of s.5(3) of the Act was not aided by other authorities or the wording of other statutes. (3) Given the wording of s.5(3) of the Act in context, the tribunal was confined to considering whether the reason given for less favourable treatment could properly be described as both material to the particular circumstances and substantial. (4) In the present case the less favourable treatment was the limit on the hours that J could drive. It was insufficient for the PO to assert that it had been reasonable in a general way; the PO had to establish that, and the tribunal had to consider whether, the reason met the statutory criteria. The Tribunal could not assess the medical evidence on a de novo basis and neither could it make its own risk assessment. (5) Consideration of the statutory criteria could involve an assessment of whether there had been sufficient evidence for the employer to reach its decision. (6) The Employment Appeal Tribunal had correctly quashed the tribunal's finding concerning the time known as period C (see facts below). Given the circumstances, the case ought to be remitted for reconsideration, with reference to the correct test under s.5(3) of the Act.
Appeal dismissed.

LTL 11/4/2001,[2001] ICR 805,[2001] IRLR 384,[2001] Emp LR 527.

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