APPEARANCES
| For the Appellant |
MR ANDREW SHORT
(of Counsel)
Instructed by:
Disability Rights Commission
2nd Floor
Arndale House
The Arndale Centre
Manchester
M4 3AQ |
| For the Respondent |
MR DANIEL STILITZ
(of Counsel)
Instructed by:
Messrs Mace & Jones Solicitors
Drury House
19 Water Street
Liverpool
L2 0RP |
SUMMARY
Disability Discrimination
ET made findings supporting R's claim of justification to a DDA s.5 (1) claim. Although the test is different under s5 (2), 5(4) and 6(1) (reasonable adjustments) (see Collins v NT [2004] IRLR 395 CA) it was perverse for ET not to apply those findings to justification under s5 (2). Unnecessary to hear argument and other points. ET upheld but on these different grounds.
HIS HONOUR JUDGE McMULLEN QC
- This case is about justification for discrimination contrary to the Disability Discrimination Act 1995. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent.
Introduction
- It is an appeal by the Claimant in those proceedings against a reserved decision of an Employment Tribunal sitting over three days, including a day in Chambers in Liverpool. Chairman Ms H J Slater, registered with Extended Reasons on 23 June 2004. The Claimant represented himself and is today represented by Mr Andrew Short of Counsel. The Respondent was represented by a solicitor who today instructs Mr Daniel Stilitz of Counsel.
- The Claimant claimed that he had been discriminated against in two ways for the purposes of the Disability Discrimination Act 1995 and also in respect of victimisation which is not an issue on appeal. The Respondent contended that ultimately its decisions in respect of the Claimant were justified.
The issues
- The issues were defined by the Employment Tribunal, but following its Decision the issues on appeal were substantially narrowed and have resulted in a rather shorter appeal than was originally envisaged and so far as they live on appeal, are as follow:
"2.4. Did the respondent treat the Claimant less favourably for a reason related to his disability than it treated or would have treated others without that disability? The respondent's representative indicated they accepted that they accepted this was the case."
2.5. If so, was that treatment justified? S.5 (1) (b). In considering whether the treatment justified, the tribunal would have to consider the effect of s.5 (5) i.e. if the respondent failed to comply with a duty to make a reasonable adjustments without justification, the treatment will not be justified unless it would have been justified even if the respondent had complied with the duty to make reasonable adjustments."
2.6. Did the respondent fail to comply with a duty to make reasonable adjustments? S.5 (2).
2.6.1. Was a placed at a substantial disadvantage by an arrangement made by or on behalf of the employer?
2.6.2. Did the respondent fail to take reasonable steps to prevent the arrangements having that effect?
2.6.2 Was the failure to make reasonable adjustments justified?
- By a majority with the Chairman dissenting, the Tribunal decided that the Claimant was not subjected to unlawful disability discrimination. The Claimant appeals that decision, on a number of grounds which in short are that the Tribunal made an inappropriate comparison and incorrectly approached the issue of substantial disadvantage. The focus of the appeal is upon the duty to make reasonable adjustments and what is said to be the failure of the Respondent to justify its action.
- The appeal includes a number of other points which are not without difficulty and importance. However, since it was suggested by Mr Stilitz, that the EAT's approach to the justification question was capable of disposing of the whole appeal, and that proposition was not disputed by Mr Short, we decided to hear arguments on that point only. Mr Short's qualification to that otherwise joint approach is that the ability to dispose of the appeal would lie only if we were convinced that one solution was available to the Tribunal, otherwise the matter would need to be remitted. As will become clear, only one solution was possible to the Respondent's contention that part of the Decision was perverse.
- Directions sending this appeal to a full hearing was given in Chambers by His Honour Judge Ansell. In accordance with those directions, no objection has been taken to the adduction of statements given by four witnesses for the Respondent and the Claimant's own witness statement.
The legislation
- The relevant provisions of the Disability Discrimination Act 1995 as applied to the appeal argued before us, are section 4 which provides that it is unlawful for a person to discriminate against a person in the arrangements made for the purposes of offering employment. Discrimination is defined by section 5 and it is important to note the linkages between sections 5(1) and (3) on the one hand, and 5(2) and (4) on the other. They provide as follow:
"5 Meaning of "discrimination"
(1) For the purposes of this Part, an employer discriminates against a disabled person if-
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of this Part, an employer also discriminates against a disabled person if-
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."
- The differences between subsections (3) and (4) are slight but important, for it can be seen that section 5(5) relates to discrimination under section 5(1) and the linkage to section 6 is via section 5(2). That is described as the duty to make adjustments and section 6(1) sets out the approach:
"6. Duty of employer to make adjustments
(1) Where-
(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all circumstances of the case., for him to have to take in order to prevent the arrangements or feature having that effect."
Section 6(3) sets out a number of steps which an employer may have to take in relation to a disabled person in order to comply with its section 6 duty. The Tribunal directed itself by reference to those relevant provisions and to a number of authorities to which we will turn.
The facts
- The Tribunal found as follows:
"8. The respondent sells mobility aids, including stairlifts, rise and recline chairs and adjustable beds. It employs approximately 113 employees. In 2003, after losing money, the respondent decided to diversify into the manufacture, sale and installation of bespoke radiator cabinets under the trading name of the English Radiator Cabinet Company. Other than stairlifts, and one type of chair, the respondent demonstrates all its products in potential customers' homes as part of the sales process.
9. The Claimant has the condition of lumbar spondylosis. He was diagnosed with this more than 25 years ago. Since 1992, he has suffered constant pain for which he takes painkillers. The Claimant has difficulty walking any distance and uses a walking stick when walking outdoors and when steps are likely to be encountered.
10. The Claimant's past sales experience includes sales in customers' homes of automatic garage doors and selling radiator shelves to DIY retailers. He used to drive up to 300 miles per day when working for a previous employer. He had no problems driving when he had an automatic car.
11. On 11 September 2003, the respondent advertised the position of Sales Surveyor in the Daily Mail. The Claimant applied immediately by faxing an application the same day to the respondent. He had a telephone interview on 17 September 2003 with Mr Fuery. Mr Fuery informed him that the job would involve selling radiator cabinets direct to home owners. He invited the Claimant for an interview on 19 September 2003. The Claimant was not given a job description or person specification. The Claimant was the first person to be interviewed and the respondent had not completed its changeover to a new application process."
- The Claimant was invited for interview on 19 September 2003. At that stage the relevant managers Mr Fuery and Mr Le-Moine decided that the Claimant would go to a training programme and that if he passed that stage and was offered a training programme he would be staring immediately afterwards. There appeared to have been some discussion about whether or not the Claimant could have carried samples, although the Tribunal noted that the Claimant had found that this was not a big issue at the time. The Claimant, no doubt, was cheered by the response of the relevant managers and set about constructing a model of a cross end of a radiator cabinet so that these could be demonstrated as products to potential clients.
- Some time after that and before 10 October 2003, a decision was made by the Respondent that the Claimant would not be sent on the course. This was because the Respondent had decided that full size sample cabinets should be carried by the sales team. The Tribunal noted the following:
"Most companies had referred him to their websites. One visited with sample cabinets and he was most impressed with their methods. On the basis of this experience, and of selling rather products, which they demonstrated in people's homes, the respondent decided that sales people should demonstrate to people a full sized radiator cabinet. The respondent's commercial view was that such a method was likely to achieve a higher "conversion" rate (i.e. translating visits into actual sales) than other sales methods. The respondent had no information on the conversion rates achieved by other companies which used different sales methods. Mr Patterson, in his oral evidence, said that one of the greatest problems giving rise to customer complaints was misrepresentation; showing the actual product to potential customers would reduce the risk of this."
No doubt dispirited, but nevertheless persistent, the Claimant asked for reconsideration making a number of a concessions and offers. However, the Respondent was unmoved. The Tribunal then said:
"20. The respondent made, and then confirmed, its decision to withdraw from the Claimant the offer of a place on the training course without seeing the Claimant and without giving him an opportunity to see if he could carry the required samples and without giving any time to considering the Claimant's proposals for alternative selling methods. Mr Fuery said this was a commercial decision; they though their method best and wanted uniformity. Mr Patterson, when asked to explain why they did not try the Claimant's methods, said that the Claimant was trying to "rewrite the rule book" and that this was not what they did or wanted to do. Mr Patterson also referred to complications with the national minimum wage and working time, if the Claimant had a trial period on a commission only basis, but these explanations appeared to the tribunal to be afterthoughts, which were not in the respondent's mind at the time, and to be obstacles, if any, which would not have been difficult to overcome. The tribunal considered the reality to be that the respondent had decided this sales method would be best and were not willing to depart from it."
- The Tribunal divided on a number of occasions in its approach to the application of those findings of fact. The Chairman was sometimes in a minority and some decisions were made unanimously. For example, the Tribunal unanimously decided that the Claimant was disabled and therefore, the Act applied. There was no dispute that he was treated less favourably for a reason related to his disability, in that the offer of a place on the training course was withdrawn. The Tribunal decided that had it not been for his disability, the Claimant would have been allowed on to course. The question, therefore, was whether the treatment of the Claimant otherwise unlawful under section 5(1), was justified under section 5(1) (b).
- Having considered the judgment of the Court Session Inner House in Archibald v Fife Council [2004] ICR 954 HL, the Tribunal decided by a majority (the Chairman and Mr Harris) that the Claimant was indeed entitled to succeed under the Act as the House of Lords later made clear. The test applied by the Inner House was more stringent than was required by the statute, but it does not matter in our case, because the Tribunal found that the Claimant would have been entitled to complain even on the judgment of the Inner House. The Tribunal, then by a majority (this time Mr Orme and Mr Harris) decided as to the comparison which should be made. Three offers were set out by the Tribunal which were as follows:
"61.1. a comparison with the population generally who do not have the Claimant's disability;
61.2. a comparison with the population generally who do not have the Claimant's disability (but might have some other disability);
61.3. a comparison with the population of people without the Claimant's disability but who share other relevant characteristics with the Claimant e.g. in this case, height and build, which would be relevant to the ability to pick up and carry a full sized radiator cabinet."
- This majority decided that the correct comparison was that in paragraph 61.1 above. The Chairman disagreed and set out the reasons for both of those positions. She took the view that the comparison which was appropriate was that within paragraph 61.3. Nevertheless, the Tribunal, then went on to consider whether or not the Claimant would have been faced with a disadvantage and by unanimous decision found that he was not, on the basis of the test set out and adopted by the majority. Thus, no duty to make adjustments arose in his case. Quite properly and conscientiously, the Tribunal went on to consider what conclusion it would have come to had the majority shared the Chairman's view as to the correct comparator, and in that hypothetical situation the Tribunal divided yet again as follows:
"65. …A majority of the tribunal (Mr Orme and Mr Harris) would have found that the Claimant was still not placed at a substantial disadvantage compared with the population of people without the Claimant's disability but who share other relevant characteristics with the Claimant. They did not consider that someone of the same height and build as the Claimant would have been able to lift and carry the cabinet as required. The Chairman would have found that the Claimant was at a substantial disadvantage compared with such a population. Although the Chairman considered that people with the same relevant characteristics as the Claimant (but without his disability) would have had some difficulty in lifting and carrying the cabinet as required (as would the majority of the population), the Chairman considered that the Claimant would have substantially more difficulty doing so than someone of his height and build, but without disability. The Chairman did not consider the evidence to be sufficient that the Claimant would not have been able to lift and carry the cabinet as required, if he had not had the disability."
- Thus, the Tribunal went on again to consider whether it would have concluded that the Respondent failed to take such steps as was reasonable. In the circumstances, two suggestions were made: one was that the Claimant should be allowed dispensation from carrying full size cabinets on a permanent basis or on a trial basis only, and the other was to adopt different methods of selling. The Tribunal decided that the proper adjustment to make would have been the latter. The Tribunal addressed each of the provisions in section 6(4) and had regard to each of the five matters then in play. The Tribunal recorded that the Respondent's commercial view was that selling by alternative methods would be less profitable. The Tribunal said this:
"However, there was no hard evidence that the conversion rate would be less. In these circumstances, the Tribunal did not think it would be reasonable adjustment to agree to sales by alternative methods on a permanent basis from the outset. However, the Tribunal concluded, that had it decided the duty to make reasonable adjustments had arisen, that it would have found that allowing sales by alternative methods on a trial basis would have been reasonable adjustment to make. If the Respondent's fears were proved founded, the Respondent would have then been entitled to bring the arrangement to an end".
- Thus, the majority of the Tribunal decided that the duty to make reasonable adjustments did not arise. The Chairman gave reasons for her own opinion, but the majority prevailed. The Tribunal next went on to consider justification on the non-disputed issue of section 5(1) that is; that the Respondent accepted that there had been less favourable treatment of the Claimant. The approach of the Tribunal to this aspect of the law was informed by Jones v Post Office [2001] IRLR 384 CA. The Tribunal noted it was not to substitute its own view for that of the Respondent, but to decide whether the Respondent's decision fell within the range of reasonable responses to the known facts. The Tribunal said this:
"The tribunal unanimously concluded, applying this approach, that the withdrawal of the offer of a place on the training course, because the Claimant was perceived not to be able to carry the cabinet ( as turned out to be the reality), was justified. The respondent wished to avoid problems with misrepresentation to consumers. They had a genuine commercial view that their conversion rate would be higher if they used full sized sample cabinets in their demonstrations in customers' homes. Their reasons for requiring sales people to be able to carry the cabinets and, therefore, this reason for withdrawing the offer to the Claimant were material to the circumstances of the case and substantial….However, the respondent's decision was justified on the basis of the Claimant's inability to carry the cabinet."
- Again, the Chairman recorded her minority decision which was that having considered section 5(5), if the Respondent had made the required adjustment of allowing a trial period of sales using alternative methods, the less favourable treatment was not justified.
The Respondents' case
- We will take the Respondent's case first following the way in which the issue has been argued before us. It is contended that the Tribunal's decision in relation to justification in respect of reasonable adjustments was perverse. It is perverse in the sense that the Tribunal; made a decision which was contrary to the evidence which was all one way and also in the sense that it was internally inconsistent. Mr Stilitz accepts that it is neither logically nor legally impermissible for different decisions to be made, applying the different tests which are set out in section 5. However, since the material and the findings in this case upon which both of those tests must be based is the same, it is perverse for decisions to have been reached which are different. The evidence was all in one direction from the Respondent and although the Tribunal considered the Claimant's experience and contribution to the debate about what is described as the commercial case. it did not reject the Respondent's evidence. On the contrary, in paragraph 71 the Tribunal accepted a genuine commercial view of the Respondent which was both substantial and material. When it considered the approach to reasonable adjustments, the Tribunal was wrong to hold that there was (as it put it) no hard evidence, for there was.
The Claimant's case
- On behalf of the Claimant, it is contended that the Tribunal did not have evidence pointing entirely in one direction for it also noted the Claimant's evidence about his own experience. A different approach is required when dealing with less favourable treatment under section 5(1) and under 5(2), the duty to make adjustments. Section 5(1) does not allow the Tribunal to make its own decision, but is broadly guided by principles derived from unfair dismissal. See Jones v Post Office where a statutory approach is required for determining whether justification has been made out under the terms relating to reasonable adjustments. The Claimant was simply seeking a trial period. The Respondent would not even consider this suggestion see paragraph 20 of the Tribunal's reasons. It is not sufficient for a Respondent in Employment Tribunal proceedings simply to assert that a person with a disability is seeking to rewrite the rules and on that basis to escape liability for making reasonable adjustments in any individual's case. The commercial view of the Respondent is not conclusive. The EAT should not disturb the Decision in relation to adjustments made and substantially in the Claimant's favour by reference to the aspect which is made against him.
The legal principles
- We take the legal principles to emerge from the following authorities. The relationship between the approach to justification in respect of section 5(1) on the one hand and section 5(2) on the other, has been set out by the Court of Appeal in Collins v Royal National Theatre Board Limited [2004] IRLR 395 per Sedley LJ (with whom Latham and Brooke LJJ agreed) at paragraph 32.
"In my judgment the only workable construction of s.5(4), in the context of the DDA and its manifest objects, is that it does not permit justification of a breach of s.6 to be established by reference to factors properly relevant to the establishment of a duty under s.6. In other words, the meaning of the closely similar words in the two adjacent subsections is materially different. In s.5(4), what is material and substantial for the purposes of justifying an established failure to take such steps as are reasonable to redress disadvantage cannot, consistently with the statutory scheme, include elements which have already been, or could already have been, evaluated in establishing that failure. That this departs significantly from the meaning and effect of s.5(3) is fully explained by the fact that justification under s.5(3) starts from a form of discrimination - less favourable treatment - which is established without the need of any evaluative judgment.
- The approach to justification and other issues under section 5 has been summarised by Sedley LJ as emerging from Jones v Post Office. For in Collins Sedley LJ said as follows:
"14. Jones concerned the dismissal of a Post Office driver who had developed first diabetes and then heart disease. He claimed disability discrimination when he was taken off driving duties as all insulin-dependent Post Office employees were. But he had been subsequently offered limited driving duties, and the Post Office conceded that the complete bar had been discriminatory. The tribunal found that the limited offer was also discriminatory; but the EAT and this court held that they had approached their decision on the erroneous footing that it was for them to say, having heard medical evidence on both sides, whether the employer's decision to set the proposed limit on the employee's driving was justified or not. The decision of this court was (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.
15. It is right to say that the consequent threshold of justification has been consistently recognised as a surprisingly low one. The EAT in the present case described it as "not very demanding". But it is also right to say that the facts in Jones clearly warranted the outcome, because the employment tribunal had decided the case on medical evidence obtained after the employer had made its decision. I will return to the question of how, jurisprudentially, that outcome was reached.
16. The subsections in play in Jones were (1) and (3). Those in play in this case are (2) and (4). In Jones (para.6) Pill LJ recorded:
"A second form of discrimination is defined in s.5 (2) and s.6. It is common ground that consideration of those provisions does not now arise in this case."
Jones having been decided on this deliberately restricted footing, Pill LJ in the present case gave permission to appeal so that a differential construction could be argued."
Conclusions
- Applying the principles of those two authorities to the instant case, we are grateful to both Counsel for their submissions in relation to justification. We accept the arguments advanced by Mr Stilitz that the Decision is perverse in both senses in which he made the submission to us and so we uphold the Decision of the Tribunal. We accept that a Tribunal has to apply different tests when considering both of the statutory torts, and the justification advanced in respect of them. The Tribunal here plainly had "hard evidence" and it was wrong of the Tribunal when considering the duty to make reasonable adjustments and any justification for failing so to do, to say that there was none. We have been taken in detail to the four witness statements adduced on behalf of the Respondent and in addition to the finding by the Tribunal following oral evidence given by one of them which indicates that there was evidence relating to what is described as its commercial case. There were commercial reasons for requiring cabinets to be produced to potential customers and problems arose as a result of customers complaining about misrepresentations. Such material was produced orally by the witness Mr Patterson.
- We therefore accept the force of Mr Stilitz's argument that with this material the Tribunal could not hold that there was no hard evidence. Indeed the Tribunal in paragraph 71, when it turned to justification for the purposes of the admitted less favourable treatment under section 5(1), seems to accept wholly the case advanced by the Respondent. That case is not disputed on appeal under section 5(1) today. In other words the commercial case advanced in evidence by the Respondent was accepted for the purposes of acquitting it of unlawful discrimination under section 5(1). Why then should that evidence not be read across into the Tribunal's approach to reasonable adjustments?
- In our judgment, the Tribunal ought to have had that matter in mind when it considered in detail its approach to section 6(4) and the factors there set out. For it to say there was no hard evidence is wrong as a matter of fact in the sense that it was perverse. It was open to it of course to reject that evidence, but having accepted it for the purposes of section 5(1) it was not open to it to reject it for the purposes of section 6, at least without an explanation. We acknowledge a different legal test is required, but the territory over which the legal test is to be analysed is the same. The evidence produced by the witnesses distilled into findings by the Tribunal can only be made once, and it is then necessary to apply the different tests to it.
- When it dealt with reasonable adjustments and the justification for failure to make them, the Tribunal overlooked its decisions in relation to the evidence as a whole coming from the Respondent. We hold that the Tribunal decision is properly considered to be perverse. That is. there was evidence for the commercial case, which was accepted elsewhere in this judgment and there was internal inconsistency in applying it for one test and not the other. The way in which this case has been argued makes it unnecessary for us to deal, therefore with other issues which we regard as important. Since the conclusion we have come to is, in our judgment the only one which the Tribunal could have reached, it is not necessary for us to hear further argument or to consider remission of this case to the same or to a different Tribunal. We acknowledge that the issues which this case raised were important and difficult. They were made the more difficult by the fact that the three Tribunal members dealing at length with the issues, was unable to agree on the principal decision and on subsidiary matters. This is a difficult statute and we have considerable sympathy with the way in which the Chairman has recorded the different opinions of its members. We say nothing about the other issues which would have been raised on appeal had a pragmatic approach not been taken. Since ultimately the Claimant could not succeed on the ground of appeal relating to reasonable adjustments without succeeding on the issue of justification, it has not been necessary for us to deal with other threshold conditions which have been would apply in this case. The appeal is dismissed.
Appeal
- An application for permission to appeal to the Court of Appeal has been made on four grounds. We say it once that the test advanced by Mr Short - "at least an issue of law" - is not the one which we apply. The question is whether there is an issue of law with a reasonable prospect of success or for which there is some other compelling reason for allowing a case to go from this Tribunal, effectively as a second appeal, but with the additional dimensions of being a specialist Tribunal on appeal from a specialist Tribunal below, and with a power to give permission ourselves for a case to enter the ordinary courts. In our judgment, the relationship between the pairs of subsections dealing with less favourable treatment and failure to make adjustments, and the justifications therefore, has been comprehensively reviewed and we hope applied from Collins. We consider the Court of Appeal having visited this matter on 17 February 2004 will not need to look at it again.
- In relation to the approach of the EAT it is of course correct that the EAT will not interfere with findings of fact by an Employment Tribunal unless they are perverse as they have been held to be in this case. We reject the contention that the case has been determined on a point of law not relied upon. This case has been determined on the basis of the relationship between the subsections dealing with two distinct statutory torts of less favourable treatment and failure to make reasonable adjustments, each of which is coupled to the justification defence. Leave to appeal is refused.
- We will extend time to allow any application for permission to appeal to the Court of Appeal to be made directly to it by 14 January 2005.
