Employment law

Justifying disability discriminationJones v Post Office (2001) IRLR 384The Court of Appeal held that the tribunal was wrong to find that the employers had failed, within section 5(3) of the Disability Discrimination Act 1995, to justify limiting the applicant's driving duties when he developed insulin-dependent diabetes.The tribunal was not entitled to find that the reason relied on by the employers was not 'material' or 'substantial' because the medical evidence relied on by the employers was wrong and a correct appraisal of the applicant's medical condition would have led to the conclusion that he should have been allowed to drive throughout his shift.According to the Court of Appeal, section 5(3) of the 1995 Act confines tribunals to considering whether the reason given for less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial.

The employer has to establish that the reason given satisfies the statutory criteria and the tribunal may investigate facts.

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 properly be taken.

The Court of Appeal said that the function of tribunals under section 5(3) of the 1995 Act is 'different but not very different from the task employment tribunals have to perform in cases of unfair dismissal', that is to say applying the 'band or range of reasonable responses' approach long ago expounded in Iceland Frozen Foods Ltd v Jones (1982) IRLR 439.

However, the editor of IRLR suggests that a tribunal is entitled to make its own decision as to whether the reason given has been shown to be 'material' and 'substantial'.

By Martin Edwards, Mace & Jones, Liverpool