Mr CS Jones v The Post Office
Court of Appeal [2001] IRLR 384
The law on Disability Discrimination continues to develop. A cautious note was sounded by the Court of Appeal in this recent decision.
Mr. Jones was a postman. He drove a delivery van in a rural area. He developed diabetes which was controlled by insulin injection.
His employers removed him from driving duties on the grounds that it was their policy that all professional drivers receiving insulin treatment should cease driving duties because of the risk of a hypo attack. His employers then reviewed him and allowed him to return to limited driving duties, not exceeding two hours in any twenty four. Mr. Jones was unhappy with this decision and went to Employment Tribunal.
The Tribunal accepted that there was discrimination and said that the two hour driving time limit was not justified.
The employer successfully appealed to the EAT against this decision. Mr. Jones in turn appealed to the Court of Appeal. They agreed with the Employment Appeal Tribunal.
In an important decision the Court considered Section 5 of the DDA. This is the section which an employer relies on when discrimination has occurred but it is argued that it is justified and is "both material to the circumstances of the particular case and substantial". In this case it was accepted that by reducing his driving hours to two hours in twenty four the employer had discriminated against Mr. Jones. However the employer said that this treatment was justified.
At the original Tribunal hearing three medical witnesses were called to the Tribunal one for Mr. Jones and two for the Post Office. The Employment Tribunal assumed the responsibility for themselves of deciding on the basis of the various medical reports whether it was reasonable of the employer to limit Mr. Jones driving to two hours in twenty four.
The Court of Appeal said that this was not the correct approach. The Tribunal should not have substituted its own view of the medical evidence for that of employer.
Instead they said the only issue the Tribunal should consider is whether the less favourable treatment (i.e the reduction in driving to two hours per day) could properly be described as "material to the circumstances" and "substantial".
In this particular case a risk assessment had been done by the employer incorporating medical evidence.
The Court of Appeal said that by doing a risk assessment, based on the medical evidence, the employer had shown that its conduct was reasonable, and that the treatment of Mr. Jones was material to the particular circumstances and substantial.
The Court of Appeal went on to say that where a properly conducted risk assessment provided a reason, that on the face of it was both material and substantial and was not irrational, the Tribunal could not substitute its own decision.
Material means a reasonably strong connection between the employer's reason and the circumstances of the individul case, and substantial means that it must carry real weight and thus be of substance.
The Tribunal in particular should not make its own assessment.
Only if no risk assessment was made by the employer or the decision which had been taken otherwise than on the basis of appropriate medical evidence or there was an irrational decision beyond the range of reasonable responses could the Tribunal say that the reason was insufficient and the treatment unjustified.
This is a cautious interpretation of Section 5 of the Act. It sounds very similar to the "range of reasonable responses" test in an unfair dismissal case.
It is likely to mean that in most cases where an employer does carry out a proper risk assessment and relies on appropriate medical evidence the justification defence is likely to be difficult to overturn.
If Tribunals are not going to consider additional evidence that was not available to employers at the time they made the decision to dismiss, then it is going to be essential for trade union reps to make sure that suitable medical/ergonomic or whatever evidence is available at that early stage since there will be little point in trying to get it after the decision has been made.