United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS K TICKNER (of Counsel) Legal Services Division Town Hall King Street Hammersmith W6 9JU
For the Respondent	MR J QUIGLEY (Solicitor) Instructed By: Messrs Rice-Jones & Smiths 1 Catton Street London WC1R 4AB


 


MR JUSTICE CHARLES: This is an appeal from a decision of an Employment Tribunal sitting at London (North), the Extended Reasons for which were sent to the parties on 16 February 1999.

1. The parties to the proceedings before the Employment Tribunal were:

(1) The Applicant, Ms Farnsworth and

(2) The Respondents

(i) The London Borough of Hammersmith and Fulham (the Borough) and

(ii) Dr Yvonne Cooper.

2. The decision of the Employment Tribunal was that the Applicant was discriminated against by reason of her disability. The Employment Tribunal invited the parties to agree compensation and to revert to the Employment Tribunal within six weeks if compensation could not be agreed.
3. The background facts and the reasoning of the Employment Tribunal appear from their Extended Reasons. The most relevant paragraphs of which (with some comments) are as follows:

"1 Ms Farnsworth applied to the Tribunal by an Originating Application received on 5 May 1998 and claimed that she had been discriminated against by reason of her disability when she was refused employment by the First Respondent as a residential social worker.

2 Ms Farnsworth stated in her Originating Application, that for more than six years up until January 1996 she had been undergoing treatment by way of medication and non-drug therapy for a depressive illness. She, nevertheless, was able to complete her higher education and gained a degree in English at Bristol University. Since leaving University in June 1996 she had gained both voluntary and paid work experience in the social work field.

3 Following an interview and written assessment Ms Farnsworth was offered a position by the First Respondent as a residential social worker on 6 November 1997 subject to medical assessment. She was examined by the occupational health physician, Dr Yvonne Cooper, the Second Respondent on behalf of the First Respondent. She was informed on 10 February 1998 that the offer was withdrawn on the basis that she had not obtained satisfactory medical clearance.

4 The Respondents denied that Miss Farnsworth had been discriminated against by reason of her disability and maintained that Ms Farnsworth had not suffered a disability within the meaning of the Disability Discrimination Act 1995, hereafter referred to as 'the Act'. It was maintained that the First Respondent was not aware of her disability and, in addition, that, in the circumstances of the employment, it was justified not to offer her employment.

5 The facts are not in dispute. On 3 October 1997 Ms Farnsworth applied for the post of residential social worker in the First Respondent's Adolescence Service Unit. The post for which she applied was as a care worker for young people from the ages of 13 to 17, in some case (sic) as young as 11, who were in a Residential Care Unit at 2 White City Close, London W12. They suffered from particular behavioural and physiological disorders.

6 Ms Farnsworth was interviewed for the position and, on 6 November 1997 (exhibit R1 page 89), she was provisionally offered the position subject to, inter alia, medical clearance. Ms Farnsworth completed the Health Questionnaire on 11 November 1997 and she attended an appointment with Dr Yvonne Cooper, the occupational health physician, on 27 November 1997. Dr Cooper requested further information from Ms Farnsworth's general practitioner and hospital doctor and on 5 February 1998 wrote a report to the First Respondent (exhibit R1, document 151), with reference to Ms Farnsworth stating:

'I saw the above-named for pre-employment medical examination on 27/11/97. I have subsequently received reports from her general practitioner and a hospital doctor who has been involved in her care. The information received provides evidence of ill-health over a number of years, which at times has been severe and necessitated hospital admission, the longest of which was about 10 months in 1992/1993. It appears that her most recent hospital admission was in March 1996 for 4 days. Although Ms Farnsworth's general practitioner reports that Ms Farnsworth's health has been good over the past year in view of her medical history I am concerned that she may be liable to further recurrences in the future. If such a recurrence were to occur her performance and attendance at work could be affected.'

7 By exhibit R1, document 152, letter dated 10 February 1998 from Ms Theresa Findlay, personnel officer, Ms Farnsworth was informed:

'Unfortunately, I have been unable to obtain satisfactory medical clearance and it is with regret that I am now withdrawing the provisional offer of appointment.'

It is in respect of this letter that Ms Farnsworth claims that she has been discriminated against by virtue of sections 1, 4 (1) (a), 4 (1) (c), 5 and 6 of the Act.

8 We considered initially whether Ms Farnsworth was suffering from a disability within the meaning of section 1 of the Act. This states:

'Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.'

4. In paragraphs 9 to 18 of the Extended Reasons the Employment Tribunal then consider the point whether the Applicant was suffering from a disability and in paragraph 19 conclude as follows:

"19 We find, as a fact on the evidence, in consideration of statute, case law, and the World Health Organisation's diagnostic guidelines, that Ms Farnsworth was suffering from a disability within the meaning of section 1 of the Act. Ms Farnsworth's disability was substantial extending over a number of years and involving lengthy periods of hospitalisation and medical therapy as well as psychotherapy. This clearly affected her normal day-to-day activities."

This finding was not appealed.

5. The Employment Tribunal then went on to deal with points that are the subject of this appeal in paragraphs 20 to 31 of the Extended Reasons which are in the following terms:

"20 We then considered whether both Respondents were aware of Ms Farnsworth's disability. Dr Cooper had reference to Ms Farnsworth's medical history. Dr Cooper in exhibit R1, document 151 refers to evidence of ill-health over a number of years, which at times has been severe and necessitated hospital admission, the longest of which was about ten months in 1992 to 1993. Dr Cooper was fully aware of the disability.

21 We considered whether the First Respondent, the London Borough of Hammersmith & Fulham, was aware of the disability. The First Respondent accepted liability for the actions of Dr Cooper pursuant to sections 57 and 58 of the Act. Dr Cooper was acting as the First Respondent's agent. That alone should constitute knowledge on behalf of the First Respondent. However, the First Respondent, by the memorandum dated 5 February 1998, was clearly put on notice that Ms Farnsworth had suffered from an illness. Ms Findlay, on receipt of this memorandum, if she had been following the First Respondent's splendidly worded Equal Opportunities Policy, should have inquired as to the nature of the illness and should have inquired as to why it was considered by Dr Cooper that Ms Farnsworth's attendance at work would be affected. This is allegedly the reason why the offer of employment was not confirmed to Ms Farnsworth. The First Respondent stated that because of the issue of confidentiality it was not the First Respondent's practice to enquire as to the medical history of an applicant for a position. However, we do not find that this excuses their ignorance and, in any event, exhibit R1, document 151 clearly refers to a possible medical problem.

22 We find, as a fact on the evidence, that both Respondents either knew or should have known, upon making proper enquiries, of Ms Farnsworth's disability.

23 We then considered whether the refusal to confirm Ms Farnsworth's appointment was by reason of her disability and thus discriminatory pursuant to section 4 (1) (a) and (c) of the Act. We find, as a fact on the evidence that the refusal to confirm the offer of employment to Ms Farnsworth was due to her disability and thereby discriminatory. Both Respondents made the assumption that Ms Farnsworth's attendance would be poor. There was no reason to suppose that her attendance would be poor. She had been in good health since June 1996. She had achieved two part-time positions which between them more or less amounted to full-time work and there appears to have been no problems with regard to her attendance. Indeed, since not gaining employment with the First Respondent, she has succeeded in gaining employment with Pathfinder NHS Trust in a similar position, albeit not so well paid, as she would have achieved if she had been appointed to the position by the First Respondent. She has received excellent references with regard to this employment and there appear to be no problems regarding her attendance record. The assumption as to her poor attendance at work would not have been made if she had been an applicant with a good past medical health history.

24 We note exhibit R1, documents 128 and 129. Exhibit R1, document 128 is a reference received from the School House Education Project and is dated 12 November 1997. It states that Ms Farnsworth worked with the School House Project from September 1996 to July 1997 as an education social work assistant. It refers to her duties but does not refer to her attendance record. However, exhibit R1, document 129, a reference dated 16 October 1997 from the Kingston & District Community NHS Trust, is a glowing reference and refers to her employment from February 1997 to July 1997 as a speech and language therapy assistant in the school for children with physical disabilities. It states that: 'during that time Ms Farnsworth demonstrated a commitment to her job'. Miss Amanda Christie, the author of the reference stated she would 'have no hesitation in employing her again'. She further states: 'No disciplinary offences were committed and I do not have any concerns about her employment with us. Claire had no days lost through illness in the time I knew her'.

25 The First Respondent did not pay attention to this reference regarding attendance and simply relied upon Dr Cooper's assumption that Ms Farnsworth would have a poor attendance record. It must be noted that, when the offer of employment was withdrawn by the First Respondent, Ms Farnsworth was not invited to comment on the possibility that her attendance record would not be up to standard. No discussion took place with her regarding the withdrawal of the offer of employment. We note that exhibit R1, document 141, letter dated 5 January 1998 from Ms Farnsworth to Miss Findlay, expresses her anxiety at not having heard from the First Respondent as to the progress of her application.

26 We considered paragraph 4.9 of the Code of Practice, Disability Discrimination 1996 which states:

'Less favourable treatment is therefore justified if the disabled person cannot do the job concerned, and no adjustment which would enable the person to do the job (or another vacant job) is practicable. (S.5(3) and (5)).'

We considered whether the First Respondent was justified in withdrawing the offer of employment to Ms Farnsworth. We do not find, as a fact, that they were so justified. It was maintained by the First Respondent that the job to which Ms Farnsworth would be assigned was a particularly important and sensitive one. She would have close personal contact with the residents of the unit and it was important for these disadvantaged young people to have continuity of contact with the person who was in charge of them. The contact was on a one-to-one basis.

27 We do not find, as a fact on the evidence, that the Second Respondent was justified in recommending that the offer of employment should be withdrawn. As has been stated, there was no reason to suppose that Ms Farnsworth's attendance record would not be up to standard. It was maintained by the First Respondent that attendance of employees working in the unit was poor and, therefore, they wished a new applicant for the position to have a first class attendance record. There was no reason to presume that Ms Farnsworth's attendance would not have been first class. It may be that Ms Farnsworth could well have been an asset to the unit in that she was fully aware of mental disturbances that could affect young people and it may be that she could empathise with them to a greater extent than an employee who had not suffered such a disability. This is not for us to say.

28 We considered what adjustments, if any, the First Respondent could have made in order to provide employment for Ms Farnsworth pursuant to paragraph 4.20 of the Code of Practice. We note paragraph C7 of the Guidance which states:

'Where a person has a mental illness such as depression account should be taken of whether, although that person has a physical ability to perform a task, he or she is, in practice, unable to sustain an activity over a reasonable period.'

We note that Ms Farnsworth had been employed by two employers, both on a part-time capacity, and she appears to have conducted those employment situations perfectly satisfactorily.

29 Ms Farnsworth would have been employed initially on a probationary period of six months. During this probationary period her attendance and conduct would have been monitored in any event. It may be that, in those circumstances, no adjustments to her employment would need to have been made. However, to be doubly sure of her suitability and her attendance, the First Respondent could have interviewed her at three monthly intervals. There were, indeed, weekly meetings at the unit where she would have been employed. She could have been supervised closely and indeed, one would expect in any event any new employee in such delicate and difficult circumstances to be supervised closely. It may be that the First Respondent need not have made any or many adjustments to accommodate her in employment.

30 Taking all these factors into account we find, as a fact on the evidence and as a matter of law, and in consideration of the Code of Practice and the Guidance in relation to the Act, that the First Respondent discriminated against Ms Farnsworth by reason of her past mental disability which clearly lasted over a period of more than twelve months. We find that the Second Respondent also discriminated against Ms Farnsworth, pursuant to section 4 (1) (a) and 4 (1) (c) of the Act. Dr Cooper made certain assumptions which were not based on fact.

31 We invite the parties to agree compensation and to revert to the Tribunal within six weeks of the promulgation of this decision if compensation cannot be agreed. Judgment was reserved."

6. On the preliminary hearing of this appeal this Tribunal ordered (by an Order dated 30 June 1999) that the appeal be allowed to proceed to a full hearing solely in respect of grounds 1 (a) and 6 of the Notice of Appeal. Those grounds were in the following terms:

"1 The tribunal erred in finding (at paragraphs 21 and 22 of the extended reasons) that the First Respondent had the requisite knowledge of the Applicant's disability in that:

(a) it applied the incorrect test, namely whether the First Respondent should have known of her disability, or had imputed knowledge of her disability, and not the correct test, namely whether the employee(s) of the First Respondent responsible for the relevant acts/decisions had actual knowledge of the Applicant's disability or of the material features of her disability.

6 Further, the finding that the Second Respondent had discriminated against the Applicant under section 4 (1) (c) of the Act was in any event perverse in that there was no evidence on which the tribunal could properly find that the Second Respondent (as Occupational Health Physician) had refused to offer or had deliberately not offered the Applicant employment."

7. As to the grounds specified in paragraph 6 of the Notice of Appeal this Tribunal on the preliminary hearing said this, at paragraph 20:

"Finally, we come to ground 6 which is that the Second Appellant, Dr Cooper, should not be in these proceedings at all because she was not the employer with section 4 and that was not the person failing to offer employment. It seems to us, that is a very strong ground of appeal on a point of law. It may indeed be that that is an issue that may be resolved before the final hearing in any event."

8. Perhaps in the light of those comments the Respondent to the appeal before us (Ms Farnsworth) has conceded that Dr Cooper should not have been a party to these proceedings and no decision or order should have been made against her. In these circumstances, we heard no argument on the relevance or effect (if any) of ss. 57 and 58 Disability Discrimination Act 1995 and we allow the appeal by Dr Cooper (the Second Appellant before us and the Second Respondent before the Employment Tribunal), set aside the order made against her and dismiss the claim as against her.
9. That leaves the appeal by the Borough (who were the First Respondent) before the Employment Tribunal.

The most relevant sections of the Disability Discrimination Act 1995 (the Act)

10. These are section 5 (1), (2), (3) (4) and (5) and section 6 (1) and (6). These are as follows:

"5(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 if, 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.

…

6 (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 the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."

…

(6) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

Amendment to the Notice of Appeal

11. The decision of the Employment Tribunal was made after the decision of this Tribunal in O'Neill v Symm & Co Ltd [1998] IRLR 233, was decided and reported. As appears from paragraphs 8 and 9 of the judgment of this Tribunal given on the preliminary hearing, the ground of appeal contained in paragraph 1 (a) of the Notice of Appeal is based upon the decision in the O'Neill case.
12. After the decision of the Employment Tribunal, and shortly before the decision of this Tribunal on the preliminary hearing, the case of Clark v TDG Ltd t/a Novacold [1999] IRLR 318, was decided by the Court of Appeal and reported. That decision is not referred to by this Tribunal in its judgment on the preliminary hearing.
13. In our judgment properly and correctly the Borough (through its Counsel) did not take a point that this appeal should be decided without reference to the Clark case. Rather the Borough sought leave to add an additional ground to its Notice of Appeal, such ground was in the following terms:

"If it is determined that an employer can be liable under section 5 (1) of the Disability Discrimination Act 1995, irrespective of the state of the employer's knowledge of the Applicant's disability, such knowledge is relevant to the consideration of justification under section 5 (3).

The Tribunal erred in failing to consider the issue of knowledge in relation to justification under section 5 (3) properly or at all."

14. As Ms Farnsworth's representative wished to rely on the Clark case, he (in our judgment properly and correctly) did not object to this amendment being made and we allowed it. On further consideration it seems to us that the first line of the amendment should refer to s. 5 (1)(a) rather than to s. 5(1) and we have proceeded on that basis.
15. The appeal was therefore concerned with the decisions of the Employment Tribunal under both section 5 (1) (a) and section 5 (1) (b) of the Act. Further, we have considered those issues having regard to the decision in the Clark case (which is something that the Employment Tribunal could not have done).

The position of Dr Cooper

16. As appears from the Extended Reasons (paragraphs 6 and 21) she was an occupational health physician acting on behalf of the Borough. Also as appears from paragraph 6 of the Extended Reasons on 11 November 1997 Ms Farnsworth completed a Health Questionnaire and attended an appointment with Dr Cooper on 27 November 1997. We have seen a copy of the questionnaire and it is headed "London Borough of Hammersmith and Fulham, Health Questionnaire. All information will be treated as strictly confidential".
17. On 27 November 1997, in addition to seeing Dr Cooper, Ms Farnsworth completed a form giving consent for the Borough to obtain a medical report. This consent form is headed "London Borough of Hammersmith and Fulham Consent to obtain a Medical Report". It is apparent from this form that Ms Farnsworth is giving her consent to medical information about her being provided to the Borough (not to Dr Cooper, albeit that the information was to be provided through Dr Cooper) and, for example, Ms Farnsworth ticked the box to indicate that she wished to see the report before it was sent to the Council.
18. Further, as appears from paragraph 6 of the Extended Reasons, reports concerning Ms Farnsworth's medical history were sent to Dr Cooper as an occupational health physician at the Borough. These reports together with the examination of Ms Farnsworth by Dr Cooper provided full information relating to Ms Farnsworth's medical history.
19. It follows that Ms Farnsworth was completely open with the Borough as to her medical history.
20. Further, in our judgment, Dr Cooper was not bound by any duty of confidence owed to Ms Farnsworth not to disclose details of her medical history to the decision-maker or makers within the Borough as to whether or not (i) Ms Farnsworth had received a satisfactory medical report, and (ii) she should be employed. This is because:

(a) Dr Cooper was acting on behalf of the Borough,

(b) Ms Farnsworth was aware of this and the questionnaire she filled in was providing information to the Borough, not simply to Dr Cooper,

(c) the consent that Ms Farnsworth gave for medical information to be provided was that it could be provided to the Borough (not simply to Dr Cooper), and

(d) the purpose of Ms Farnsworth's examination by Dr Cooper and the purpose for which she gave information and provided consent for information to be given to the Borough was to enable the Borough to reach a decision as to whether or not she would be employed by the Borough.

21. A duty of confidence is one which prevents the holder of confidential information from using it or disclosing the information for purposes other than those for which it has been provided without the consent of the person to whom the duty of confidence is owed. The duty also has the proviso (which does not apply here) that use or disclosure can be made in the public interest.
22. It follows that the information concerning Ms Farnsworth's medical history remained confidential information in the hands of Dr Cooper and the decision-makers at the Borough as to whether or not she should be employed and without the prior consent of Ms Farnsworth they could not use or disclose it for purposes other than the making of that decision. We add that if the Borough had employed Ms Farnsworth it seems to us that the authority she had given for the information to be used in making the decision whether or not to employ her carries with it authority to use the information in respect of future decisions relating to her employment but in any event the Borough could have asked for that permission.
23. It follows, for the reasons we have given, that in our judgment the practice of the Borough referred to in paragraph 21 of the Extended Reasons was not justified by reference to a duty of confidence owed by the Borough to Ms Farnsworth. Indeed, we comment that it seems to us that this is an odd practice which amounts to a self denying ordinance in respect of information which the Borough have properly sought and have obtained consent to obtain.

Ground of appeal in paragraph 1 (a) of the Notice of Appeal

24. As appears therefrom, by this ground the Borough asserts that the test the Employment Tribunal should have applied was to ask whether the employees of the Borough responsible for the relevant acts/decisions had actual knowledge of the Applicant's disability, or of the material features of her disability.
25. This ground was based on arguments that (i) the Employment Tribunal correctly found that the reason the offer of employment was withdrawn was that the Borough made the assumption that her attendance would be poor, and (ii) the approach in the O'Neill case is the correct one and founds the proposition that actual knowledge is required.
26. Initially, and for the sake of argument, we shall assume that these points are correct. However we point out that the reason given by the Borough was not so expressed. The reason given was that the Borough had not obtained satisfactory medical clearance. Also, as appears below, in our judgment the approach and reasoning of this Tribunal in the O'Neill case is no longer good law.
27. The argument advanced by the Borough also depended upon it establishing that the knowledge of Dr Cooper of Ms Farnsworth's disability, or of its material features, was not the knowledge of the Borough.
28. On the above assumptions, in our judgment on the facts of this case as found by the Employment Tribunal and demonstrated by the documents before us, although Dr Cooper was not an employee of the Borough she was an agent of the Borough who, with employees thereof, was responsible for the relevant acts/decisions of the Borough in reaching its decision not to offer Ms Farnsworth employment. Put another way and by reference to the terms of this ground of appeal Dr Cooper was a member of the "decision making team" and thus one of the relevant persons who together made the decision on behalf of the Borough not to employ Ms Farnsworth. In this context we do not accept that on the facts a valid distinction can be made between employees of the Borough and an agent in the position of Dr Cooper. In our judgment by its practice of denying itself information as to the medical history upon which Dr Cooper made her report the Borough constituted Dr Cooper a relevant decision-maker as to whether or not Ms Farnsworth should be employed.
29. The consequence of the reasoning in paragraph 28 hereof is that in our judgment Dr Cooper's actual knowledge of Ms Farnsworth's disability satisfies the test put forward in this ground of appeal by the Borough. It also follows therefrom that:

(a) on the facts of this case difficult or potentially difficult issues arising from the decision in the O'Neill case as to (i) constructive knowledge, and (ii) who in a large organisation has to have the relevant knowledge do not arise, and

(b) even if the argument advanced by the Borough that the O'Neill case was authority for the proposition that the Employment Tribunal applied the wrong approach and should only have asked themselves whether the persons responsible for the decision on behalf of the Borough had actual knowledge of Ms Farnsworth's disability the appeal on this ground would have failed.

The Clark case

30. As we have already mentioned we heard argument as to the effect of this case on the O'Neill case.
31. In the O'Neill case the central point of the relevant reasoning of this Tribunal was based on the word "reason" in s. 5 (1)(a) of the Act. This appears from paragraphs 31 to 35 and 42 to 47 of the judgment which are in the following terms:

"31 To satisfy those parts of the Act, it is sufficient, Miss Drew submitted, to establish (a) that the employee is a disabled person; (b) less favourable treatment; (c) for a reason that relates to the disabled person's disability.

32 In this instance, the reason was absence. The absence was due to illness. The illness in fact related to the disability. Subject, therefore, to establishing 'less favourable' treatment, Miss O'Neill had established all that was required of her.

33 Because of its decision as to the relevance of the employer's knowledge, the industrial tribunal did not go on to consider the question of less favourable treatment. Nor was any submission addressed to us by Miss Drew upon that part of s.5(1)(a). Yet we have reflected upon the question how, in a case such as this, an employer can be held to have treated a disabled employee, for a reason related to that disabled employee's disability, less favourably than in comparable circumstances he would treat an otherwise comparable employee, without knowing of the fact of the disability.

34 In response to Miss Drew's first submission, Mr Giffin, for the respondent, made a preliminary general submission which highlights the starkness of Miss Drew's proposition. He said that to be found to have discriminated against a disabled employee, because of the disability, carries both financial liability in terms of compensation and significant stigma. If such consequence is capable of following even where the employer is unaware of the disability, then that is a startling consequence and it would be expected that the Act would make that clear in plain and unequivocal language.

35 Mr Giffin also invited us to look at the plain meaning of the words of the Act. He argued that the phrase 'a reason which relates to the disabled person's disability' is a single phrase which is to be read as a whole. The 'reason' for an employer's action is a set of facts known and/or beliefs held which cause him to act as he does. Accordingly, the employer only acts for a reason relating to a person's disability if the existence of the disability is part of what is in the employer's mind and prompts his action.

…

42 In Simon v Brimham Associates [1987] IRLR 307, the Court of Appeal considered the question of knowledge or lack of knowledge of the alleged discriminator in a racial discrimination case. At 309, 9, Balcombe LJ said:

' … in a case of this kind, where it is suggested that the individual applicant was discriminated against on racial grounds, the knowledge or lack of knowledge of the alleged discriminator of the racial origin of the person against whom he is said to have exercised that discrimination must be material to a finding on this question: was the alleged act of discrimination done on racial grounds?'

The relevant words in the 1976 Act are 'on racial grounds'. Ground is the word used in both the 1975 and 1976 Acts. The 1995 Act uses the words 'for a reason'.

43 The Employment Protection (Consolidation) Act 1978, s.60 [now the Employment Rights Act 1996, s99] used the word 'reason'.

'60 (1) An employee shall be treated for the purposes of this Part as unfairly dismissed if the reason or principal reason for her dismissal is that she is pregnant or is any other reason connected with her pregnancy …'

That is markedly similar to words of s.5 (1) (a) of the 1995 Act:

'… for a reason which relates to the disabled person's disability …'

44 In Del Monte Foods v Mundon [1980] IRLR 224, the Employment Appeal Tribunal had to consider s.60 and whether it was necessary to show that the employer knew of the pregnancy or of the facts and their connection with the pregnancy. At 225, 6-7, Slynn J (as he then was) said:

'The section of the Act relied upon for the purposes of this claim, it seems to us, makes quite clear that there is to be a finding of unfair dismissal, without more, if either the reason or the principal reason for the dismissal is that the woman is pregnant or is for some other reason connected with her pregnancy. It must be shown in this case that the dismissal was because of the pregnancy or for another reason connected with the pregnancy. If this section is relied on, it seems to us essential that it be shown that the employers knew or believed that the woman was pregnant or that they were dismissing her for a reason connected with her pregnancy. If they do not know of the pregnancy, or do not believe that the pregnancy exists, it does not seem to us that it is possible for the employers to have as their reason for dismissal that the woman was pregnant. In a case where it is said that the reason for the dismissal is another reason connected with her pregnancy, not the pregnancy itself, it seems to us that the employers have to know the facts alleged by the employee as grounding the reason and also to know or believe that those facts relied upon are connected with the woman's pregnancy.

In summary it must be shown that the employers either have the knowledge of, or a belief in, the pregnancy, or knowledge of the facts, and their connection with the pregnancy, if there is some other reason than the pregnancy, which is the reason for the dismissal.'

45 Miss Drew sought to distinguish that case, and persuade us that we should not be assisted by it, by drawing a distinction between the subjective tests in unfair dismissal cases and the objective tests applied in cases of discrimination. But whilst recognising the subjective questions that may arise in unfair dismissal cases, particularly in the context of reasonableness, that distinction does not help us.

46 The issue for us is what, looking at causation and putting matters of motive and the like aside, is connoted by the word 'reason'. It seems to us that it must involve a knowledge of the matter that is material. What is material to discrimination on the grounds of disability is disability and not merely one or other equivocal symptom, just as what is material in the pregnancy provision is knowledge of the pregnancy.

47 It follows from what we have said that on this part of the appeal we are not at all satisfied by Miss Drew's arguments that the industrial tribunal made an error of law in regarding as relevant the employer's lack of knowledge that Miss O'Neill was a disabled person, within the meaning of the Act, in applying ss.4 (2) and 5 (1) (a). We find that knowledge of the disability, or at least the material features of it as set out in Section 1 of the Act, is relevant."

32. The leading judgment of the Court of Appeal in the Clark case was given by Mummery LJ. He dealt with the "section 5 (1) point" in paragraphs 52 to 72 thereof and summarised his conclusions in respect of that point in paragraphs 89 to 91 thereof. Those paragraphs are in the following terms:

"52 The s.5 (1) point

The two questions posed by the statutory provisions are:

(1) Was Mr Clark dismissed for a reason which relates to his disability?

(2) If so, did Novacold treat him less favourably than they would treat others to whom that reason would not apply?

53 Question (1) is one of fact. It is common ground that 'dismissal' is caught by s.5(1). See s.4(2)(c). The finding of the industrial tribunal on the reason for dismissal is stated above. It is clear that that was a reason which related to his disability.

54 In order to answer question (2) it is necessary to compare Novacold's treatment of Mr Clark with the treatment of others to whom 'that reason' would not apply.

55 What is meant by 'that reason'?

56 On the one hand, it is argued on behalf of Novacold that it refers to the whole of the first clause of the paragraph. That imports two requirements: first, the existence of 'a reason' for the treatment (in this case, the dismissal); secondly, the causal link between the reason and the disabled person's disability. It must be a reason 'which relates to the disabled person's disability'. Thus 'that reason' embraces the significant causal link to the disability. On this approach, the person to whom 'that reason' would not apply would be one who, like the disabled person, is incapable of performing the main functions of his job, but for a reason which does not relate to disability. This is the interpretation favoured both by the industrial tribunal and the appeal tribunal. On the factual findings of the tribunal this interpretation leads to the conclusion that Mr Clark was not treated less favourably than others incapable of performing the main functions of their job for a non-disability reason.

57 A contrary interpretation is submitted on behalf of Mr Clark. His argument is that 'that reason' refers only to the first three words of the paragraph – 'for a reason'. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression 'which relates to the disability' are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation, the others to whom 'that reason' would not apply are persons who would be capable of carrying out the main functions of their job. Those are the 'others' proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark has been treated less favourably; he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed.

58 Linguistically, s.5(1)(a) is ambiguous. The expression 'that reason' is, as a matter of ordinary language, capable of bearing either of the suggested meanings. The ambiguity must be resolved by recourse to the context of the ambiguous language and to the aim of the legislation. The correct approach is that stated by Waite LJ in Jones v Tower Boot Co Ltd [1997] IRLR 168 at 171, 30:

' … a statute is to be construed according to its legislative purpose, with due regard to the result which it is the stated or presumed intention of Parliament to achieve and the means provided for achieving it ('the purposive construction') and the second is that words in a statute are to be given their normal meaning according to general use in the English language unless the context indicates that such words have to be given a special or technical meaning as a term of art ('the linguistic construction').'

59 In the historical context of discrimination legislation, it is natural to do what the industrial and the appeal tribunal (though 'without great confidence') did, namely to interpret the expression 'that reason' so as to achieve a situation in which a comparison is made of the case of the disabled person with that of an able-bodied person and the comparison is such that the relevant circumstances in the one case are the same, or not materially different, in the other case. This might be reasonably considered to be the obvious way of determining whether a disabled person has been treated less favourably than a person who is not disabled.

60 But, as already indicated, the 1995 Act adopts a significantly different approach to the protection of disabled persons against less favourable treatment in employment. The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the 'reason' for the treatment of the disabled employee and the comparison to be made is with the treatment of 'others to whom that reason does not or would not apply'. The 'others' with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be persons 'to whom that reason does not or would not apply'.

61 This is to be contrasted not only with the different approach in the 1975 and the 1976 Acts, but also with the express requirement of comparison with the treatment of other persons 'whose circumstances are the same' stipulated in victimisation cases by s.55(1)(a) of the 1995 Act.

62 The result of this approach is that the reason would not apply to others even if their circumstances are different from those of the disabled person. The persons who are performing the main functions of their jobs are 'others' to whom the reason for dismissal of the disabled person (ie inability to perform those functions) would not apply.

63 In the context of the special sense in which 'discrimination' is defined in s.5 of the 1995 Act it is more probable that Parliament meant 'that reason' to refer only to the facts constituting the reason for the treatment, and not to include within that reason the added requirement of a causal link with disability: that is more properly regarded as the cause of the reason for the treatment than as in itself a reason for the treatment. This interpretation avoids the difficulties which would be encountered in many cases seeking to identify what the appeal tribunal referred to as 'the characteristics of the hypothetical comparator'. It would avoid the kind of problems which the English (and Scottish) courts and the tribunals encountered in their futile attempts to find and identify the characteristics of a hypothetical non-pregnant male comparator for a pregnant woman in sex discrimination cases before the decision of the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd: see Webb (No.2) [1995] IRLR 645. This interpretation is also consistent with the emphasis on whether the less favourable treatment of the disabled person is shown to be justified. That defence is not available in cases of direct discrimination under the other discrimination Acts.

64 It is also more consistent with the scheme of the 1995 Act as a whole. As Roch LJ pointed out in the course of argument, the language of s.5(1) is replicated in other Parts of the Act relating to the definition of discrimination in other areas: goods, facilities and services in s.20(1); and premises in s.24(1). Although neither side sought to place before the court any Pepper v Hart material on s.5, such material appears to be available on the provisions relating to access to services. The interpretation of the provisions in s.20(1) is relevant to the interpretation of s.5, as they are in the same terms.

65 On the second reading of the Bill for this Act the Minister for Social Security and Disabled People stated:

'The Bill is drafted in such a way that indirect as well as direct discrimination can be dealt with … A situation where dogs are not admitted to a café, with the effect that blind people would be unable to enter it, would be a prima facie case of indirect discrimination against blind people and would be unlawful' (253 HC Official report (6^th series) col. 150, 24 January 1995).

66 Section 20(1) provides that:

'For the purposes of s.19, a provider of services 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.'

67 Section 19 covers, among many other things, access to facilities for refreshment: (3)(f). The important point to note is that, if Novacold are correct in their interpretation of s.5(1), it would follow that s.20(1), which is in the same terms, would have to bear a meaning inconsistent with the specific statement of the Minister on the intended effect of those provisions.

68 Consider his example. If no dogs are admitted to a café, the reason for denying access to refreshment in it by a blind person with his guide dog would be the fact that no dogs are admitted. That reason 'relates to' his disability. His guide dog is with him because of his disability.

69 On the Novacold interpretation of the comparison to be made, the blind person with his guide dog would not be treated less favourably than the relevant comparator, ie 'others', to whom that reason would not apply, would be sighted persons who had their dogs with them. There could not therefore be any, let alone prima facie, discrimination. But the Minister specifically stated that this would be a prima facie case of disability discrimination, ie less favourable treatment, unless justified. It could only be a case of less favourable treatment and therefore a prima facie case of discrimination, if the comparators are 'others' without dogs: 'that reason' for refusing access to refreshment in the café would not apply to 'others' without dogs.

70 The same point can be made on the example given in the Code of Practice on Rights of Access issued by the Secretary of State at para.2.12:

'A waiter asks a disabled customer to leave the restaurant because she has difficulty eating as a result of her disability. He serves other customers who have no difficulty eating. The waiter has therefore treated her less favourably than other customers. The treatment was for a reason related to her disability – her difficulty when eating. And the reason for her less favourable treatment did not apply to other customers. If the waiter could not justify the less favourable treatment, he would have discriminated unlawfully.'

71 It is clear from this example that the comparison to be made is with other diners who have no difficulty in eating and are served by the waiter, and not with other diners who may be asked to leave because they also have difficulty eating, but for a non-disability reason, eg because the food served up by the waiter is disgusting. This interpretation of s.20(1) provides support for Mr Clark's interpretation of s.5(1). The reason for his dismissal would not apply to others who are able to perform the main functions of their jobs; he has been treated less favourably than those others. He was dismissed for not being able to perform the main functions of his job. The 'others' would not be dismissed for that reason.

72 However, that does not necessarily mean that Mr Clark has been discriminated against. It is open to Novacold to show that the dismissal is justified, just as it would be open to the café proprietor to justify the exclusion of dogs, including guide dogs with their blind owners.

…

89 Summary

In brief, the legal position is that:

(1)Less favourable treatment of a disabled person is only discriminatory under s.5(1) if it is unjustified.

90 (2)Treatment is less favourable if the reason for it does not or would not apply to others.

91 (3)In deciding whether that reason does not or would not apply to others, it is not appropriate to make a comparison of the cases in the same way as in the 1975 and the 1976 Acts. It is simply a case of identifying others to whom the reason for the treatment does not or would not apply. The test of less favourable treatment is based on the reason for the treatment of the disabled person and not on the fact of his disability. It does not turn on a like-for-like comparison of the treatment of the disabled person and of others in similar circumstances."

33. The O'Neill case is not referred to in the Clark case. However, in our judgment it is apparent from the approach taken by the Court of Appeal and, in particular, its conclusion that the interpretation set out in paragraph 57 of the judgment is correct, that the reasoning and conclusion in the O'Neill case that knowledge of the disability is relevant for the purposes of s. 5 (1)(a) of the Act (see in particular paragraph 47 of the judgment) is no longer good law. This is because the interpretation of s. 5 (1)(a) of the Act in paragraph 57 of the judgment in the Clark case renders knowledge of the disability irrelevant for the purposes of answering the statutory question posed by that sub-section and thus destroys the argument based on causation which founds the decision in the O'Neill case. For example, this is also demonstrated by the opening part of paragraph 63 of the judgment, namely:

" … it is more probable that Parliament meant 'that reason' to refer only to the facts constituting the reason for the treatment, and not to include within that reason the added requirement of a causal link with disability: that is more properly regarded as the cause of the reason for the treatment than as in itself a reason for the treatment."

34. Further, Mummery LJ in the Clark case concludes that it is inappropriate to apply the approach taken in respect of the Sex Discrimination Act 1975 and the Race Relations Act 1976 to section 5(1) of the Act.
35. Additionally in this context we were also referred to the decision of this Tribunal in Heinz v Kenrick, delivered on 3 December 1999 and note that paragraphs 21 to 27 of the judgment of the President (Lindsay J) supports our conclusion that the reasoning and conclusion in the O'Neill case as to knowledge are no longer good law. Paragraph 27 of that judgment is in the following terms:

"27 The phrase, 'which relates to' in the expression, in Section 5 (1) (a), of 'for a reason which relates to the disabled person's disability' widens the description of the reasons which may be relevant beyond what the case would have been had the Act said 'by reason of ... the disability'. As we see it, the expression may include a reason deriving from how the disability manifests itself even where there is no knowledge of the disability as such. This, we think, opens no floodgates but it does require employers to pause to consider whether the reason for some dismissal that they have in mind might relate to disability and, if it might, to reflect on the Act and the Code before dismissing. There is, in our judgment, no need to imply into the statute a requirement not expressly present, namely that the employer should know of the disability as such or as to whether its material features fell within or without Schedule 1 of the 1995 Act. It may be that O'Neill does not, in any case, go that far. This is not to say, though, that such knowledge or its absence may not be highly material to justifiability under Section 5 (1) (b) or Section 5 (2) (b) or as to the steps to be considered or taken under Section 6 - see also Section 6 (6) (b)."

The effect of the Clark case on the ground of appeal in paragraph 1(a) of the Notice of Appeal

36. Whether the reason the Borough withdrew its offer of employment was because the persons who made the decision on its behalf (apart from Dr Cooper) thought that she would have poor attendance or considered that she did not have a satisfactory medical reference, in our judgment the effect of the decision in the Clark case is that at the "s. 5 (1)(a) stage" of the statutory test their knowledge of Ms Farnsworth's disability is irrelevant.
37. It follows that if such knowledge is relevant it is relevant at the "s. 5 (1)(b) stage" and thus the "justification stage" of the statutory test.

Conclusion as to the ground of appeal in paragraph 1(a) of the Notice of Appeal

38. For the reasons set out above this ground fails at the "s. 5(1)(a) stage" of the statutory test.

Justification – the s. 5 (1)(b) stage – the added ground of appeal

39. In our judgment knowledge is a necessary ingredient for the purposes of s. 6 of the Act and therefore for the purposes of justification under ss. 5 (4) and (5) of the Act. However it is provided by s. 6 (6) that such knowledge does not have to be actual knowledge because s. 6 (6) makes it clear that a person can be under a s. 6 duty if he could reasonably be expected to know that the relevant person has a disability.
40. However in our judgment knowledge, or lack of knowledge, of the disability of the relevant person is not a necessary ingredient for the purposes of ss. 5 (1)(b) and (3) (save to the extent that ss. 5 (3) is affected by ss. 5 (5)). In our judgment this is, for example, demonstrated by the example given in the Clark case of a café that did not admit dogs. Justification of that practice would not depend on knowledge, or lack of knowledge, of the fact that the relevant customer was blind.
41. It is clear from the findings of the Employment Tribunal that they were of the view that the Borough could reasonably be expected to know that Ms Farnsworth suffered from a disability if the knowledge of Dr Cooper was not to be treated as the actual knowledge of the Borough as they thought it should be (see paragraphs 21 and 22 of the Extended Reasons). Further as appears above, in our judgment, the Borough had the requisite knowledge for the purposes of s. 6 (6) of the Act (see paragraphs 27 to 29 above).
42. In our judgment it follows that to the extent that knowledge was a necessary (and therefore relevant) ingredient of the consideration by the Employment Tribunal of the question whether the less favourable treatment they found was justified the Employment Tribunal did not err in failing to consider the knowledge of the Borough properly, or at all, as asserted in the amendment to the Notice of Appeal.
43. Further in our judgment, if the Employment Tribunal had had the benefit of being able to consider the Clark decision and had therefore considered the statutory questions in the light thereof it is clear that they (and in our judgment any other Employment Tribunal on the facts they found) would have concluded that the Borough could not show that its treatment of Ms Farnsworth was justified.
44. It follows that the ground of appeal we allowed the Borough to add in respect of justification also fails.

Overall Conclusion

45. For the reasons we have given:

(1) the appeal by the Borough, the first respondent, is dismissed and therefore the order made by the Employment Tribunal against it stands, and

(2) the appeal by Dr Cooper, the second respondent, is allowed and therefore (i) the order made against her by the Employment Tribunal is set aside, and (ii) the claim made by Ms Farnsworth against her is dismissed.