The Legal 500

Section 3A(1) of the Disability Discrimination Act 1995 (as amended) (DDA) provides that it is discriminatory for an employer to treat a disabled person less favourably than others for a reason related to their disability where such less favourable treatment is not justified. Section 3A(3) states that treatment is justified if it is material to the circumstances of the particular case and substantial.

Section 4A DDA provides that where any provision, criterion or practice applied by or on behalf of the employer, or physical features of the premises, puts the employee at a substantial disadvantage in comparison with persons who are not disabled, the employer is under a duty to take such steps as is reasonable in all the circumstances to prevent that disadvantage (ie a duty to make a reasonable adjustment).

Section 3A(6) provides that where an employer is under a duty to make a reasonable adjustment ‘but fails to comply with that duty, his treatment of that person cannot be justified under sub-section (3) unless it would have been justified even if he had complied with that duty’.

Facts
S applied for a job as a salesman selling radiator cabinets. He passed the preliminary interview stage and was offered a place on a training course, the satisfactory completion of which would lead to the position of salesman.

S suffered from a disability and as a result had difficulty walking. C wanted its salesmen to use a full-size radiator cabinet as a sales aid. It concluded that S would be unable to carry such a cabinet, and therefore withdrew the offer of the place on the training course.

S asked C to reconsider, suggesting that an alternative sales method may be possible; that he could use a smaller size sample of radiator cabinet; or that he could work on a commission-only basis for an initial period. C rejected all of these suggestions.

S brought a claim of disability-related discrimination and a claim of disability discrimination on the grounds that C had failed to make a reasonable adjustment. The employment tribunal and the EAT both found in favour of C. However, the Court of Appeal allowed S’s appeal.

Tests for reasonable adjustments and justifiable discrimination
The Court of Appeal was asked to consider:

• What test should be applied to determine whether an adjustment is reasonable?
• What test should be applied to determine whether disability-related discrimination is justifiable?

Reasonable adjustments
The Court of Appeal held that although the requirement to carry a full-sized radiator cabinet did place S at a substantial disadvantage compared to the six candidates who completed the training, in order to succeed with his failure to make a reasonable adjustment claim he also had to establish that C could have taken reasonable steps to prevent the arrangement having the adverse effect.

The Court held that there was no doubt that the test required to determine whether an adjustment is reasonable is an objective test. The DDA itself sets out a number of factors to be taken into account when deciding whether it is reasonable for an employer to take a particular step (eg financial and other costs, extent of resources, nature of the employer’s activities and size of the undertaking, etc).

When is disability-related discrimination justified?
Having regard to the test to be applied when considering whether or not disability-related discrimination is justified, the Court of Appeal held that ‘the position is noticeably different’ – treatment is only justified if it is both material to the circumstances of the particular case and substantial (s5(3) and (4) DDA). Referring to the case of Jones v Post Office, the Court of Appeal considered that the tribunal has to consider the materiality and substantiality of the employer’s reason for the discrimination. If there are credible arguments to support that reason, a tribunal cannot find that it is not substantial.

Court’s conclusions
The Court conceded that two different tests can lead to a situation where something which might otherwise have been justifiable in the context of an act that amounts to disability-related discrimination nevertheless results in a duty to make a reasonable adjustment. In this case, C had a strong commercial argument that full-sized radiator cabinets should be used by the sales force as they generated more sales. Although this satisfied the subjective test to defend an act of disability-related discrimination, it did not satisfy the objective test for determining whether it was reasonable to make an adjustment and, as a result, C could not rely on the justification defence.

If there is a duty to make an adjustment and the duty is not complied with then, following Nottinghamshire CC v Meikle, the tribunal is required to consider whether the less favourable treatment would have been justified had the employer complied with that duty. In most cases, failure to make the reasonable adjustment will prevent an employer from defending a disability-related dismissal if the adjustment would have prevented or avoided the adverse impact of the disability that led to the dismissal.