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Cite as: [2001] EWCA Civ 558, [2001] ICR 805, [2001] IRLR 384, [2001] Emp LR 527

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JISCBAILII_CASE_EMPLOYMENT

		Neutral Citation Number: [2001] EWCA Civ 558
		Case No: A1/2000/0294 EATRF

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL (HOLLAND J PRESIDING)

Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 11th April 2001

B e f o r e :

LORD JUSTICE PILL
LADY JUSTICE ARDEN
And
LORD JUSTICE KAY
____________________

	Mr C S Jones	Appellant
	- v -
	The Post Office	Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Melanie Tether (instructed by Messrs Pattinson & Brewer) appeared for the Appellant
David Griffith-Jones and Andrew Burns (instructed by Post Office Legal Services Department) appeared for the Respondent
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE PILL:

1. This is an appeal against a decision of the Employment Appeal Tribunal, Holland J presiding, dated 9 February 2000 whereby they allowed, in part, an appeal against a decision of an Employment Tribunal which gave extended reasons on 10 November 1998. What is now in issue is whether, with respect to what has been described as Period C, the Post Office ("the respondent") discriminated against Mr Jones ("the appellant") within the meaning of that word in section 5(1) and (3) of the Disability Discrimination Act 1995 ("the 1995 Act").

The appellant has worked for the respondent since 1977 on postal deliveries. In 1979 he was diagnosed as having mature onset diabetes, which is also known as Type 2 diabetes. He was treated by diet and subsequently by tablets but, following a heart attack in June 1997, insulin treatment was prescribed. The appellant drove a mail delivery van, the delivery route assigned to him being almost entirely rural.

On 25 September 1997 the appellant was removed from driving duties on the ground that the respondent's standards for professional drivers required that employees having insulin treatment should cease all driving duties. On 12 February 1998 the respondent decided to review the case and the review continued until 30 April 1998. The first period was described as Period A and the review period as Period B. At the end of the review period, the respondent offered to let the appellant return to limited driving duties. The proposed duties required that driving should be limited to a period not exceeding two hours in any period of twenty-four hours, with the period of two hours relating to duty time rather than time actually spent driving. The other terms, which were acceptable to the appellant, were that he would be allowed time within his schedule to take appropriate steps to control his diabetes, that he would be allowed the flexibility to limit his driving should he feel unwell and that he should present himself for a review of his medical condition at intervals not exceeding six months. He was not prepared to accept the two hour limit for driving. The period beginning on 1 May 1998 has been described as Period C.

It is now accepted that there was discrimination during Periods A and B, the concession on Period B being based on delay in conducting the review. The Employment Tribunal found that there was discrimination during Period C, the two hour limit not being justified. They recommended that the appellant be returned to his driving duties. The Employment Appeal Tribunal allowed the appeal on Period C and set aside that finding and recommendation. They further ordered that, in the absence of a satisfactory resolution of the position, the matter be remitted for hearing before a differently constituted employment tribunal. They also considered section 6 but that section is now agreed to be irrelevant to the present case, as the Employment Tribunal found.

Section 5 of the 1995 Act provides, insofar as is material:

"(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) …

(3) … for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

A second form of discrimination is defined in section 5(2) and section 6. It is common ground that consideration of those provisions does not now arise in this case. It is accepted that the appellant has been treated less favourably than others for a reason which relates to his disability. The respondent submits that the treatment is justified within the meaning of section 5(3).

Three medical witnesses were called before the Employment Tribunal, Dr N Press, Consultant Physician, for the appellant, and Dr I Thomas, Area Medical Adviser to the respondent, and Dr S Boorman, Principal Medical Adviser to the respondent, on behalf of the respondent. The Employment Tribunal assumed the responsibility of deciding for themselves, on the basis of the medical evidence, whether it was reasonable to limit the appellant's driving. The respondent's case, not accepted by the Employment Tribunal but accepted by the Employment Appeal Tribunal, is that, on the wording of section 5(3), the function of the Employment Tribunal is a more limited one. The "reason" for the less favourable treatment is the risk presented by an insulin requiring driver. The Employment Tribunal, it is submitted, are entitled to consider only whether the reason put forward by the employer is one which is both material to the circumstances of a particular case and substantial.

The Employment Tribunal tried the medical issue. They stated that "Dr Press was able to provide us with the latest information based on extensive studies, which have only recently been released (since this case started)". They added: "The approach we take is to consider whether the [appellant] by reason of his condition posed a risk which falls above or below the line of acceptability". They set out the criteria on which Dr Boorman relied and stated that few of them applied to the appellant. They stated that they understood that the respondent accepted, while the appellant was on tablet treatment, his risk of having a hypo was sufficiently low to be a risk worth taking. (The word hypo is used to describe an attack affecting function, the severity of which may vary, suffered by a diabetic.) On their view of the evidence, the greater risk posed by the fact that the appellant now requires insulin was "negligible". They stated: "We conclude, therefore, that the respondent was not justified in restricting the [appellant's] driving. It follows from that that we find his claim for discrimination under the Act is made out". Having referred to the respondent's duty of "reasonable care to its employees", they stated that they were in no doubt that "the line of what is a reasonable duty of care is just the same as the line of what is an acceptable risk to permit someone to drive".

During the hearing before this Court, the question arose as to whether the Employment Tribunal had understood the medical evidence correctly. Miss Tether, for the appellant, submits that it is not open to the respondent to succeed on that ground because the allegation of perversity had been withdrawn expressly before the EAT. In my view, the approach of the Employment Tribunal to the substance of the medical evidence does present difficulties and may have involved misunderstandings. I am content however to decide the appeal on the basis of the more general arguments presented by the parties as to the construction of section 5(3). There is no doubt that the Employment Tribunal did assume the function of deciding the medical issue for themselves in that, subject to a point on timing which needs to be considered, they put themselves in the shoes of the employers and decided that the employers had come to a wrong decision. They held that a correct appraisal of the appellant's medical condition would have led to the conclusion that he should have been allowed to drive throughout his shift. Since the conclusion was wrong, it could not be either material or substantial. The evidence of Dr Press, not of course available to the employers when the decision was taken, had demonstrated that the employers were wrong to limit the hours of driving.

Miss Tether concedes that the Employment Tribunal were wrong to have regard to post-decision medical evidence. They stated (paragraph 16): "In particular we have had to consider the expert medical opinion and the latest medical research, even though that was certainly not available to the respondent when the initial decision was made in September 1997". (That date was chosen because Period A was then in issue but the same point arises upon a 1 May 1998 decision date). Miss Tether's submission is that the justification turns upon medical evidence which the respondent had, or ought to have had, at the date of the decision. If, by the standards applying at that date, the medical evidence relied on can be shown, to the satisfaction of the Employment Tribunal, to be wrong, justification under section 5(3) is not established. Miss Tether also submits, and on this point I agree with her, that the willingness of the Employment Tribunal to have regard to the "latest medical research" does not in the event affect their decision. Their conclusion was not based on the result of post-decision medical research. It was based on the opinion of Dr Press which they preferred to that of Dr Thomas and Dr Boorman. Dr Press's opinion, though expressed after the decision, did not depend on post-decision medical research.

The appeal turns on the construction of section 5(3). Miss Tether submits that, when the "reason" relied on by the employer for the purposes of the subsection is a belief about the effects of a disability, the subsection requires an employment tribunal to determine objectively whether that belief is correct. If the employer wrongly believes that the disability constitutes a safety risk, the reason is not "material" for the purposes of the subsection. The employment tribunal can also decide whether the reason is "substantial". The tribunal must be entitled to test the reason and determine whether the employer's belief is well founded because the section would offer little protection if the employer's belief, right or wrong, is to be accepted. The tribunal should consider the medical evidence afresh, make its own risk assessment and decide whether, in the light of its conclusion on the evidence, the less favourable treatment is justified.

In support of her submission, Miss Tether relies upon the ordinary meaning of the words used, the consistency of her construction with the purpose of the Act, the use of terminology different from that applying to providers of services and the circumstances in which the subsection resulted from an amendment to the Bill during its passage through Parliament.

In relation to the words used, Miss Tether submits that the "reason" must be material and substantial. The sub-section does not merely provide that it is sufficient if the employer reasonably believes it is material and substantial. It would be fundamentally wrong to import the approach to unfair dismissal permitted by section 98 of the Employment Rights Act 1996 into section 5(3).

Miss Tether distinguishes the language now under consideration from that employed in section 20 of the Act which deals with providers of services and provides a justification subsection in these terms:

(3) For the purposes of this section, treatment is justified only if—

(a) in the opinion of the provider of services one or more conditions mentioned in subsection (4) are satisfied; and

(b) it is reasonable in all the circumstances of the case, for him to hold that opinion.

The conditions set out in subsection (4) include, for example, cases in which the treatment is necessary in order not to endanger the health or safety of any person. That test expressly provides that it is only the reasonableness of the opinion of the provider of services which is to be tested. In the draft bill, a similar justification subsection appeared in section 5.

In moving an amendment to that clause the Minister of State stated that "the fact that the justifications would be subject to an employer's opinion, albeit one which must be shown to have been reasonably held, has caused concern". The Minister stated that the amendment "substitutes for a fixed list of specific justifications a principle that can be applied much more easily in the wide and varied range of circumstances that can arise in the field of employment. Less favourable treatment of a disabled person would thus be justified if the reason for it were both material to the circumstances and substantial … the new provisions will be clear to understand and to operate".

Relying on Pepper v Hart [1993] AC 593, Miss Tether submits that the Minister's statement demonstrates a clear intention to move away from a test based on the employer's opinion. A test based on the tribunal's opinion was intended.

Miss Tether refers to decisions of the EAT but accepts that in none of them was the issue now under consideration decided. While accepting that the point at issue in that case was a different one, Miss Tether relies on the statement of Bell J in Morse v Wiltshire County Council [1998] ICR 1023. In considering similar wording under section 5(4), Bell J stated at 1034D:

"No doubt in carrying out these exercises the tribunal will pay considerable attention to what factors the employer has considered or failed to consider, but it must scrutinise the explanation for selection for redundancy, for instance put forward by the employer, and it must reach its own decision on what, if any, steps were reasonable and what was objectively justified, and material and substantial.

We reject, therefore, [the argument] that it is sufficient if the tribunal judges that a reasonable employer could have acted as the respondent did or, more specifically, that the respondent must advance an explanation for its conduct but that, once it has done so, the tribunal can only consider whether that explanation is reasonably capable of being material and substantial".

The Employment Tribunal relied on the first of those paragraphs in the judgment of Bell J when concluding that the "decision in this case as to what is justified must be ours" and that "we have to decide whether the discrimination against the applicant was justified".

Even if the Minister's statement as to the reason for the amendment is admissible, which in this case I doubt, it does not in my judgment assist upon the point now in issue. It demonstrates an intention to depart from the type of test employed in section 20 but does not attempt to define the proposed role of the Tribunal with the new test. For the respondent, Mr Griffith-Jones QC does not submit that the enacted test is subjective. He submits that the change was to substitute a "reason" based test for the "opinion" based test in section 20 but the task of the Employment Tribunal is limited to considering whether the reason put forward is both material and substantial. The Tribunal is confined to a consideration of those criteria. The reason in this case was the respondent's assessment of the risk arising which, Mr Griffith-Jones accepts, does involve the respondent forming, by its employees, an opinion.

As to Morse, Mr Griffith-Jones submits that the statement of Bell J was obiter. He also relies on the fact that, in an earlier part of his judgment dealing with the Employment Tribunal's direction as to the law in that case, Bell J stated, at p 1032B, that "it posed the correct test of whether the council showed that its treatment of the applicant was justified in that the reason for it was both material to the circumstances of the case and substantial" (my emphasis). The use of the word "whether" rather than "in that" later in the judgment was not intended to represent a change, it is submitted.

Reference has been made to the Code of Practice issued by the Department of Education and Employment under powers conferred by section 53 of the 1995 Act. It was brought into force on 2 December 1996 by statutory instrument (SI 1996/1996). While providing in paragraph 1.3 that it does not itself impose legal obligations and is not an authoritative statement of the law, it is admissible in evidence in any proceedings under the Act before an employment tribunal or court.

Lindsay J, President, referred to the code when giving the judgment of the EAT in H J Heinz Co Ltd v Kendrick [2000] ICR 491, on which Mr Griffith-Jones relies. The EAT considered the meaning of section 5(3) and Lindsay J, at p 496, referred to the "very low threshold for justification" in sub-section 5(3). In adopting that expression he relied upon paragraph 4.6 of the Code of Practice in which, by way of explanation of the sub-section, it is stated that "the reason has to relate to the individual circumstances in question and not just be trivial or minor". I do not consider that the paragraph in the Code of Practice, or other paragraphs, provides help upon the point of statutory construction now in issue. Apart from being "illustrative only" (paragraph 3.1 of the Code), the illustrations given in paragraph 4.6 are tantalisingly silent as to the role of the Employment Tribunal. (The status of the Code as a guide to statutory construction need not in the event be decided.) Lindsay J cited the expression in the Code already quoted when, as he put it at p 496G, he had "flirted with the idea that section 5(3) provided only a necessary rather than a sufficient condition for justification, meaning that a tribunal could not hold there to be justification unless the reason for the treatment was "both material to the circumstances of the particular case and substantial" but that even if the reasons satisfied that test there was not "necessarily justification". Lindsay J concluded, however, and I respectfully agree, that "the condition stipulated in section 5(3) is both necessary and sufficient" but that finding is not determinative of the present issue.

In submitting that section 5(3) does not permit the employment tribunal to make up its own mind upon justification on the basis of its own consideration of the medical evidence called before it, Mr Griffith-Jones refers to the duties of employers under the Health and Safety at Work Act 1974. Section 2 of that Act imposes a duty to "ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees". Section 3 imposes a duty to "conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety". Failure to discharge those duties is a criminal offence under section 22 of the Act. Reference is also made to the Management of Health and Safety at Work Regulations 1992, made under that Act; the duty under Article 3 to conduct a risk assessment and the duty under Article 6 to appoint competent persons with a view to health and safety assistance. An employer is required to conduct a risk assessment and to have regard not only to the position of a particular employee but to other employees and to the public. Upon the Employment Tribunal's view of the position, decisions as to a safe system of work would be taken out of the hands of the employer, who would be vulnerable to claims by fellow employees and members of the public for systems of work devised not by them but by the Employment Tribunal. In many cases employees will be dependent on each other for the safe operation of machinery and systems of work. Miss Tether submits that the decision of the Employment Tribunal would provide the employer with a defence to a claim for damages at common law, presumably by way of issue estoppel.

In acknowledging, in Clarke v Novacold Ltd [1999] ICR 951, the underlying problem, Mummery LJ stated, at p 954, that the Act "is without doubt an unusually complex piece of legislation which poses novel questions of interpretation". Mummery LJ added, and I respectfully agree with his observations:

"This state of affairs should not to be taken as a criticism of the Act or of its drafting or of the judicial disagreements about its interpretation. The whole subject presents unique challenges to legislators and to tribunals and courts, as well as to those responsible for the day-to-day operation of the Act in the workplace. Anyone who thinks that there is an easy way of achieving a sensible, workable and fair balance between the different interests of disabled persons, of employers and of able-bodied workers in harmony with the wider public interests in an economically efficient workforce, in access to employment, in equal treatment of workers and in standards of fairness at work, has probably not given much serious thought to the problem."

I have to say that I have found little assistance, upon the construction of section 5(3), in other cases or in the wording of other statutes. I do find force in a consideration of the employer's general duties under statute and at common law, in effect acknowledged by Mummery LJ in Clarke and asserted in the submissions of Mr Griffith-Jones. The 1995 Act is plainly intended to create rights for the disabled and to protect their position as employees but those intentions must be considered in the context of the employer's duties to employees generally and to the general public. I cannot accept, in a case such as the present, involving an assessment of risk, that Parliament intended in the wording adopted to confer on employment tribunals a general power and duty to decide whether the employer's assessment of risk is correct. The issue is a different one from whether a person has a disability, within the meaning of section 1 of the Act, which is to be determined by the employment tribunal (Goodwin v Patent Office [1999] IRLR 4).

Upon a consideration of the wording of section 5(3) in context, I conclude that the employment tribunal are confined to considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial. The less favourable treatment in the present case is the limit upon the hours of driving. The reason given for it is the risk arising from longer periods of driving. The respondent obtained what are admitted to be suitably qualified and expert medical opinions. Upon the basis of those opinions, the respondent decided that the risk was such as to require the less favourable treatment. In order to rely on section 5(3) it is not enough for the employer to assert that his conduct was reasonable in a general way; he has to establish that the reason given satisfies the statutory criteria. The respondent asserts in this case that the risk arising from the presence of diabetes is material to the circumstance of the particular case and is substantial. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the tribunal cannot substitute its own appraisal. The employment tribunal must consider whether the reason meets the statutory criteria; it does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment.

The present problem will typically arise when a risk assessment is involved. I am not doubting that the employment tribunal is permitted to investigate facts, for example as to the time-keeping record of the disabled person or as to his rate of productivity, matters which would arise upon some of the illustrations given in the Code of Practice. 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. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision maker (a test approved by Sir Thomas Bingham MR in a different context in R v Ministry of Defence ex p Smith [1996] 1 All ER 257 at 263), the employment tribunal could hold the reason insufficient and the treatment unjustified.

The tribunal cannot, however, in my judgment, conclude that the reason is not material or substantial because the suitably qualified and competently expressed medical opinion, on the basis of which the employer's decision was made, was thought by them to be inferior to a different medical opinion expressed to them. Moreover, a reason may be material and substantial within the meaning of the section even if the employment tribunal would have come to a different decision as to the extent of the risk. An investigation of the facts by the tribunal will often be required but it cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors and produces an answer which is not irrational. This constraint limits the power of tribunals to provide relief to disabled employees but in my view it follows from the wording of the section, which requires consideration of the reason given by the employer, and recognises the importance of the employer's responsibility for working practices.

The limited function of the employment tribunal may in some circumstances place them in a situation which is less than straightforward procedurally. However, it is not one with which they are unfamiliar. It is different but not very different from the task employment tribunals have to perform in cases of unfair dismissal. In Post Office v Foley [2000] IRLR 827 it was held in this Court that in applying the law of unfair dismissal in section 98 of the Employment Rights Act 1996, tribunals should continue to adopt the "band or range of reasonable responses" approach to the issue of the reasonableness or unreasonableness of a dismissal as expounded in Iceland Frozen Food Ltd v Jones [1982] IRLR 439. Under that section, the tribunal's task is to consider the reasonableness of the employer's response and, under the present section, it is to consider the materiality and substantiality of his reason. In both cases, the members of the tribunal might themselves have come to a different conclusion on the evidence but they must respect the opinion of the employer, in the one case if it is within the range of reasonable responses and in the other if the reason given is material and substantial.

The respondent does not seek to uphold the finding of the EAT under section 6 of the Act. However, I agree with the EAT's conclusion that the Tribunal was not entitled to make a "free standing de novo decision". They were correct to set aside the finding and recommendation of the Employment Tribunal with respect to Period C. That being so, Mr Griffith-Jones submits that, upon an application of the correct test, the appellant's claim must fail and there is no need to remit the application for re-hearing by an Employment Tribunal. The EAT concluded that if the parties had not already resolved the position of the appellant satisfactorily, there should be a remission for re-hearing before a differently constituted tribunal. While I have no doubt that the reason given is capable of being both material to the circumstances of the particular case and substantial within the meaning of section 5(3), I would not favour the reversal of the decision of the EAT to remit. An Employment Tribunal should have the opportunity to reconsider the case.

I would dismiss this appeal.

LORD JUSTICE KAY:

I agree entirely with the reasoning and conclusions of Pill LJ.

In a case such as the present one where evidence (medical or otherwise) which was not available to the employer is put before the tribunal, provided the employer has taken into account all the evidence reasonably available to it, including if medical issues are raised, sufficiently well-qualified expert medical evidence, then the fact that other evidence is available by the time of the hearing cannot render the treatment unjustified.

Where evidence emerges after the employer's decision which suggests that the original evidence upon which the decision was based is wrong, it is open to an employee with a disability to submit the new evidence and ask the employer to reconsider his treatment. If the employer failed to take it into account, for example by inviting its medical experts to consider contrary medical opinion, then the continued treatment might cease to be justified but it would not render the original decision wrong.

LADY JUSTICE ARDEN:

I agree with both judgments. Section 5(1) of the Disability Discrimination Act 1995 provides that an employer discriminates against a disabled person if for a reason which relates to the disabled person's disability, he treats that reason less favourably than other persons. Section 5(3) then provides:

"(3) Subject to sub-section (5), for the purpose of sub-section (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

It is clear from the wording of section 5(3) that the standard by which the employer's reason is to be reviewed is an objective one, and not a subjective one. This case has raised the novel question of the intensity of that review.

Section 5(3) uses the words "material" and "substantial". In my judgment, those words cover different subject matter. "Material" denotes the quality of the connection which must exist between, on the one hand, the employer's reason for discriminating against the employee and, on the other hand, the circumstances of the particular case. The circumstances of the particular case may include those of both the employer and employee (Baynton v Saurus Ltd [2001] ICR 375). Under section 5(3), this connection must be "material".

Mr Griffith-Jones submits that "material" means "relevant". As to this, it is often said that there are degrees of relevance. In this context, I would add to Mr Griffith-Jones' submission the rider that it is not sufficient that the connection is an extenuated one. The use of the word "material" rather than "relevant" or "applicable" indicates to me that there must be a reasonably strong connection between the employer's reason and the circumstances of the individual case. The strength of this connection involves largely a factual enquiry. It ought not to involve an enquiry into medical evidence since such an enquiry is relevant, if at all, only to the second limb of section 5(3).

An example may help throw light on the function of the word "material" in section 5(3). Suppose that it is shown that diabetes (of either type) leads to diminished night-time vision and the employer of an employee with diabetes prohibits that employee from doing night-time shifts for the reason that he has diabetes. In this example there would be a material connection between the employer's reason and the circumstances of the particular case. Miss Tether sought to argue that materiality also involved correctness. However, in my judgment, if the employer in the example last given believed that diabetes diminished night-time vision but was entirely wrong in that belief, the requirement for materiality in the example which I have given would still be met. However, there would be difficulty in the employer meeting the second requirement of substantiality, to which I now turn.

The second requirement in section 5(3) is that the reason should be "substantial". This means, in my judgment, that the reason which the employer adopted as his ground for discrimination must carry real weight and thus be of substance. However the word "substantial" does not mean that the employer must necessarily have reached the best conclusion that could be reached in the light of all known medical science. Employers are not obliged to search for the Holy Grail. It is sufficient if their conclusion is one which on a critical examination is found to have substance. Thus a reason which on analysis is meretricious would not be a "substantial" reason. It would fail to meet the test in section 5(3).

A tribunal faced with a claim of justification may well find it helpful to proceed by asking the following questions:-

What was the employee's disability?

What was the discrimination by the employer in respect of the employee's disability?

What was the employer's reason for treating the employee in this way?

Is there a sufficient connection between the employer's reason for discrimination and the circumstances of the particular case (including those of the employer)?

Is that reason on examination a substantial reason?

The first three of those questions involve pure questions of fact. The fourth and fifth questions, however, involve questions of judgement. The latter questions may involve hearing expert evidence but the employment tribunal should not conduct an enquiry into what is the best course of action to take in all the circumstances of the case. Nor are the tribunal required to be persuaded themselves. They are not entitled to find that the employer's reason for the discrimination was not justified simply because they take the view that some conclusion, other than that to which the employer came, would have been preferable. Nor can they conclude that justification has not been shown simply because they entertain doubts as to the correctness of the employer's conclusion. If credible arguments exist to support the employer's decision, the employment tribunal may not hold that the reason for the discrimination is not "substantial". If, however, the employer's reason is outside the band of responses which a reasonable employer might have adopted, the reason would not be substantial. (This test was applied by the Court of Appeal in the different context of unfair dismissal in Post Office v Foley [2000] IRLR 827). In short, so far as the second limb of section 5(3) of the 1995 Act is concerned, justification is shown provided that the employer's reason is supportable.

Statute can provide different levels of protection for employees in different situations depending on the meaning of the language which Parliament has used. The scale ranges from "de novo", or complete retrial of the issue which the employer had to decide at one end of the scale - which is the test which the employment tribunal applied in this case - to absolute deference to the employer's decision provided he acts in good faith, at the other end of the scale. There are many intermediate points on this scale. The test in this case of sufficient connection and supportable grounds represents one of these intermediate points.

The fact that the true construction of a particular statutory provision indicates that the protection given to an employee in one respect is not the maximum protection that could have been conferred or as great as the protection conferred in other areas of statute law, is not of itself a reason for rejecting that construction. The right level is a matter for Parliament. It may be that in the case of disability discrimination Parliament had in mind that an employer has to balance the interests of the employee with a disability with those of fellow employees and indeed also of members of the public. Accordingly I reject Miss Tether's submission that it would be surprising if the criteria for review under section 5(3) of the Disabilities Discrimination Act 1995 were less rigorous than, for instance, under the Race Relations Act 1976 or the Sex Discrimination Act 1975.

I agree with the form of order proposed by Pill LJ.

ORDER: Appeal dismissed; the respondents will have their costs save for the costs of the respondents notice. In relation to that, the appellants will have any costs they can establish as resulting from the service on them of the respondents notice, and costs will be the subject of detailed assessment in default of agreement; leave to appeal refused.

(Order does not form part of approved Judgment)