Morse v Wiltshire County Council EAT
Times Law Report, 11 May 1998

The Employment Appeal Tribunal has given important guidance to Industrial Tribunals on the sequence of steps to be considered in deciding a claim for disability discrimination based on an employer's failure to make a reasonable adjustment - a 'Section 6 duty'. As a preliminary and welcome point, the EAT decided that Section 6(2) does cover dismissal even though there is no express mention of dismissal or termination in the Section.

Mr Morse was employed as a road worker by the employers. As a result of injuries sustained in a road traffic accident, he could not hold a driving licence. The employers wanted to reduce the number of workers because of financial problems and required 74 of the 90 retained workers to hold a driving licence.

Mr Morse was dismissed for redundancy and complained to the tribunal of unfair dismissal and disability discrimination. The employer conceded that Mr Morse was a disabled person and that he had been selected for redundancy for a reason related to his disability but said that the discrimination was justified.

The industrial tribunal held the dismissal fair and said there was no discrimination. Mr Morse appealed to the EAT on the discrimination point.

The EAT held that the tribunal had not correctly addressed the reasonable adjustment argument, breach of Section 6 duty. The EAT decided that the DDA requires a tribunal to go through the following sequential steps when considering a claim for discrimination based on a breach of Section 6.

1 Is the employer under a Section 6 duty in the first place? 
2 If the employer is under a Section 6 Duty, has the employer taken such steps as are reasonable, in all the circumstances of the case, to prevent the working arrangements or features placing the disabled person at a substantial disadvantage? 
3 If, and only if, the above two steps are satisfied, should a tribunal then consider the justification defence - was the employer's reason for the failure to comply with the Section 6 duty both material to the circumstances of the particular case and substantial.

In considering this three step approach, an industrial tribunal should apply an objective rather than a subjective test. The tribunal had not properly considered what steps the employer might have taken to enable Mr Morse to be kept on, or to any additional expense likely to be caused before balancing the effect of that expense against the effect of dismissal on Mr Morse.

The case was sent back to the tribunal.