United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A BURNS (of Counsel) Instructed By: Mr R Williams Solicitor The Post Office Legal Services Impact House 2 Edridge Road Croydon CR9 1PJ
For the Respondent	MISS M TETHER (of Counsel) Instructed By: Mr B Clarke Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


MR JUSTICE HOLLAND:

Introduction

1. Mr. Jones. Is now aged 45. In 1977 he entered employment with the Post Office as a postman. In 1979 he was diagnosed diabetic. At that stage the condition was countered by diet; in due course it became necessary for him to have a regular intake of tablets. These measures (and the condition they reflected) did not then bear adversely upon his ability to drive safely and he happily worked as a rural delivery driver utilising a Escort van. The situation changed in June 1997: he had a heart attack and subsequently dependency on tablets was replaced by dependency on insulin. This development called into question the Post Office policy on 'Medical Fitness Standards for Professional Drivers' which includes:

"Insulin treatment is associated with risk of hypoglycaemic events, this may cause altered judgment, impaired driving and collapse. All insulin requiring diabetics are unfit to drive Post Office vehicles. Drivers who become insulin requiring are no longer fit to continue driving duties."

1. On the 25^th September 1997 Dr. Thomas, the area medical advisor for the Post Office, told Mr. Jones that because he had moved to insulin treatment he had to cease driving duties as per the policy. This development led to a complaint raised by an IT1 of the 1^st December 1997 of unlawful discrimination on grounds of disability. That in its turn prompted, on and following the 12^th February 1998, a reconsideration by the Post Office of its position. In late April 1998 (per paragraph 9 of the Extended Reasons) " ..... the Respondent decided to relax its policy in relation to the Applicant and made an offer to him that he would be able to return to limited driving duties, provided it was not exceeding two hours in any period of 24 hours, with the period of two hours relating to duty time rather than time actually spent driving." There were three further terms:

"(a) He should be allowed time within his schedule to take appropriate steps to control his diabetes, such as to monitor his blood sugar and take additional meal breaks as necessary.

(b) He should be allowed the flexibility to limit his driving should he feel unwell.

(c) He should present himself for a review of his medical condition at intervals not exceeding six months."

This offer was rejected by Mr. Jones not because of the latter three terms (accepted as reasonable) but because of the restriction on his driving. In such circumstances the matter came on for hearing in September 1998 before an Employment Tribunal sitting at Leicester. By that stage matters had crystallised so that the Tribunal was invited to consider the matter by reference to three Periods:

A. From 20^th September 1997 to 11^th February 1998;

B. From 12^th February 1998 to 30^th April 1998; and

C. From 1^st May 1998 to the hearing, and continuing.

2. Given a concession by the Post Office that Mr. Jones is a disabled person for the purposed of the Disability Discrimination Act 1995, the issues related to Periods B and C - the Post Office conceded that the initial total ban could not be justified. As to Period B, the Post Office contended that a period during which the position of Mr. Jones was under a review with the aid of medical advice has to be justified and in the event that was the period. As to Period C, the Post Office contended that all discrimination ceased with the proffering of the 30^th April terms. Mr. Jones joined issue with the Post Office on Periods B and C.
3. In the event the decision of the Tribunal promulgated on the 10^th November 1998 together with Extended Reasons was that the Post Office "discriminated against the applicant in removing him from driving duties and then restricting his driving." It recommended that he should be returned to his driving duties subject to the three accepted terms. Against this decision the Post Office appeal, contending that it is founded upon an error of law.

This Appeal

4. It is conventional to set out at this stage in the judgment an exposition of the reasoning of the Tribunal such as to make sense of the subsequently recited submissions of the parties. In this case we take an alternative course, purely out of deference to the problems of construction posed by the Disability Discrimination Act 1995. As Mummery L.J. said in Clark v TDG t/a Novacold (1999) IRLR 318 at 332 adverting to the relevant sections: "Although their general aims are clear and commendable, the language in which the detailed implementation of them is expressed is not easy to interpret or to apply to particular cases." With that warning we first turn to the relevant sections of the Act.

Disability Discrimination Act 1995

5. The following sections are material:

Section 1(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."

Section 4(2) "It is unlawful for an employer to discriminate against a disabled person whom he employs-

(a) in the terms of the employment which he affords him ..... or

(d) by dismissing, or subjecting him to any other detriment."

Section 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."

5(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."

5(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 circumstance of the particular case and substantial."

5(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."

Section 6(1) "Where-

(a) any arrangements made by or on behalf of an 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 ..... having that effect.

(2) Subsection 1(a) applies only in relation to- .....

(b) any term, condition or arrangements on which employment ..... is offered or afforded.

(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) .....

(c) transferring him to fill an existing vacancy; .....

(d) altering his working hours;

(e) assigning him to a different place of work .....

(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to-

(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to taking the step."

The Periods

6. We now turn to each of the three periods in turn (albeit transposing B and C) so as to trace with care the potential impact of the Act upon the respective factual situations. We readily acknowledge that to some extent this is an exercise in 'treading water' but as foreshadowed by the citation from the judgment of Mummery L.J. it is not always easy to construe this statute and we are therefore reluctant to cut corners.

Period A

7. We reiterate: this period is set in train by the ban on driving (and thus on employment involving such) imposed on the advice of Dr. Thomas in reliance upon the then prevailing Post Office policy, as already cited. It is common ground that throughout this period the policy was the justification: no steps were taken to identify an alternative, less severe response to the inception of dependency upon insulin. In the event Mr. Jones was perforce put upon an alternative postal round, making deliveries by bicycle. What is the resultant impact of the Act?

a. By reference to Section 1(1), Mr. Jones was plainly disabled. Thus his physical impairment (diabetes) had a substantial and long-term adverse effect on his ability to carry out normal day to day activities. It is no surprise to find that so much was common ground between the parties.

b. By reference to Section 6, the Post Office arguably became subject to a duty. Thus the arrangements made at the outset of this period (viz. to change his round and thus his employment) placed Mr. Jones at a substantial disadvantage in comparison with fellow employees who were not disabled by reason of diabetes, so that it arguably became the duty of the Post Office "to take such steps as it is reasonable, in all the circumstances of the case for (it) to have to take in order to prevent the arrangements or feature having that effect." We write 'arguably': seemingly this proposition was common to both parties - we cite and discuss later the view of the Tribunal.

c. In the event, the Post Office as at that stage, took no such steps save that of putting him on the alternative postal round.

d. Subsequently the Post Office, having taken medical advice, seemingly found itself unable to contend that this allocation to an alternative round reflected the taking of all such steps as were reasonable as required by Section 6. Further, it seemingly formed the view that this failure to comply with the duty that, as it thought, was imposed by Section 6 was not for a reason that was "..... both material to the circumstances of the particular case and substantial", see Section 5(4). In a nutshell, the Post Office had acted purely by reference to its policy and had subsequently appreciated that it had wholly failed to consider "the circumstances of the case", in effect the particular circumstances of Mr. Jones. In the overall result, by reference to Section 6 and Section (2) and (4) Mr. Jones had been the subject of discrimination: such is also established by the parallel route afforded by Section 5(1), (3) and (5). - or if Section 6 is irrelevant, by Section 5(1) and (3).

e. Turn to Section 4(2): such discrimination was plainly unlawful. The treatment complained of amounted at the least to 'detriment'.

Period C

8. The significance of this separate period arises from facts which were essentially assumed rather than found by the Tribunal. Supplementing the Extended Reasons with material from the bundle that was put before us, it would seem that between the 12^th February and the 30^th April 1998 the Post Office reviewed the position of Mr. Jones spurred on by his protests, by an appreciation of the potential implications of the Disability Discrimination Act 1995, and by the coming into force (on 1^st January 1998) of an EC Directive on Driving Licensing which sought to prevent those in receipt of insulin treatment from driving vehicles weighing in excess of 3.5 tonnes - a provision which did not catch Mr. Jones with his escort van. At all events Dr. Thomas apparently devised the replacement scheme as set out earlier in this judgment and put it forward in place of the initial complete ban. Before doing so he consulted with, and secured approval from Dr. Steven Boorman, the principal medical advisor to the Post Office and an acknowledged expert on medical risks in connection with driver licensing. It is the case for the Post Office that as from the tendering of this alternative to the complete ban there was no further discrimination against Mr. Jones in breach of the Act.
9. Again we attempt staged analysis by reference to the Act:

a. Did the devising and tendering of the modified restriction on driving amount to 'steps' within the ambit of Section 6(1), taking into account Section 6(3) and (4)?

b. If 'no', then the impact of the Act remains altered. If 'yes' then there is arguably no discrimination by reference to Section 5(2) and (4). Is there then scope for a finding of discrimination by reference to Section 5(1)? Here we raise a matter upon which the Tribunal had views and we defer more detailed comment until later.

10. Subject then to this latter reservation, Period C calls into question the impact of such further 'steps' as were taken.

Period B

11. It is difficult to discover much factually about this Period, whether from the Extended Reasons, or from the supplemental material. It is said, no doubt correctly, that on the 12^th February 1998 the Post Office decided to review the position of Mr. Jones and thereafter did so until the end of April. It is apparent from the written submissions of the Post Office to the Tribunal that essentially they invite a finding of justification for this period as for Period C presumably on the basis that Section 6 'steps' include the making of such a review. As to why the period of the review was so prolonged is not apparent to us.

The Tribunal

12. It is helpful to note, first, the powers of this Tribunal as provided for by Section 8(2):

"(2) Where an industrial tribunal finds that a complaint presented to it under this section is well-founded, it shall take such of the following steps as it considers just and equitable-

(a) making a declaration as to the rights of the complainant and the respondent in relation to the matters to which the complaint relates;

(b) ordering the respondent to pay compensation to the complainant;

(c) recommending that the respondent take within a specified period, action appearing to the tribunal to be reasonable, in all the circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates."

13. Turning then to its exercise of those powers as revealed by the Extended Reasons, we discern the following approach on the part of the Tribunal:

a. There was a finding that Mr. Jones was a disabled person as defined by Section 1(1) (paragraph 10).

b. There was a finding that, subject to justification, there was discrimination in that (paragraph 15) he was subjected to a detriment (per Section 4(2)) and (paragraph 11) he was treated less favourably by the Post Office than it treated or would treat an employee not so disabled (cf. Section 5(1)).

c. There was a finding that Section 6 was irrelevant in these terms:

"13. Having concluded the evidence we invited the parties to provide written submissions, which have been done, and we then as a Tribunal met to consider the position and make our decision. In those submissions both parties had spent a significant part of their time in addressing the question of a reasonable adjustment under section 6 of the Disability Discrimination Act 1995. To an extent that has been caused by reliance on one of the few leading cases in this area of Morse -v- Wiltshire County Council (1998) IRLR 352. However, that case was different, because there was no dispute that the Applicant was unable to drive, and, therefore, adjustments had to be made to enable him to undertake his job. In the present case the primary issue is not whether an adjustment is or is not reasonable but whether the adjustment is or is not necessary. We do not consider it is helpful in this case to try to apply section 6, by speculating on whether the respondent's adjustment is reasonable as we consider none is necessary."

d. In the result the Tribunal directed itself that the only issue was as to whether the Post Office could justify the less favourable treatment by reference to Section 5(1) and (3).

e. The Tribunal then directed itself as to its approach to this issue in paragraph 15:

"Unusually for an Employment Tribunal, under the Disability Discrimination Act 1995, we do not decide that point by considering whether the respondent acted reasonably or not. We have not therefore found it necessary to go into any detail about the respondent's occupational health practices, which we accept are to the very highest standards. The decision in this case as to what is justified must be ours. As was said in Morse v Wiltshire Country Council "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." Accordingly, whilst we have paid very careful attention to all the arguments put forward by the respondent, we have to decide whether the discrimination against the applicant was justified. 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."

f. As indicated in this latter extract the Tribunal heard evidence as to the significance of the condition of Mr. Jones from, respectively, the applicant himself and on his behalf, Dr. Press, an expert on diabetes. Then they heard from Dr. Boorman as called by the Post Office.

g. Having reviewed the medical evidence it concluded that the deterioration in the condition of Mr. Jones signalled by his new reliance in insulin made no material difference to the existing risk that he would experience a hypoglycaemic episode whilst driving a Post Office van so that no restriction on his driving was justified, that is, so that no justification was made out pursuant to Section 5(1) and (3). That conclusion reflected acceptance of the opinion of Dr. Press in preference to that of Dr. Boorman.

h. It necessarily followed in its judgment that each Period featured discrimination that was unlawful per Section 4(2). That said, it dealt specifically with Period B in the following terms:

"19. We were asked separately to consider the middle period from 12 February to 30 April, when the respondent was reviewing the position. We accept that justification may be valid for a temporary period even though ultimately it is found that the discrimination should not continue. For example, it may well be justifiable for an employer to restrict the driving of someone whose condition has just been disclosed pending proper medical examination, risk assessment and consideration of any necessary restrictions or adjustments. That would still be so even though it is found that the person ultimately should not be restricted in any way. However, that is not the position with this case. The applicant was prevented from driving from 25 September 1997. The further assessment was carried out because of the application to the Tribunal and additional medical evidence having been provided. We consider that to have justified that assessment, which could in some circumstances have taken 10 weeks or so, the period should have started in September 1997 and the respondent cannot rely on its failure to do that at the time to justify the later period. In addition that period was principally taken up with assessing how the applicant could be fitted in with a restriction. It was a matter of looking at practicable possibilities for a restriction. What was required was an assessment of whether a restriction was or was not necessary, which is not really what occurred."

i. Thereafter, the Tribunal exercised its powers pursuant to Section 8(2) to recommend adoption of the three provisions set out in the Introduction to this judgment, that is, three of the provisions promulgated at the end of April 1998.

j. Finally, the Tribunal noted a submission made on behalf of the Post Office that drew attention to:

Section 9(1) "Nothing in this Act makes unlawful any act done-

(a) in pursuance of any enactment ....."

In the context, said the Post Office, justification was in part afforded by its concurrent statutory obligations to ensure so far as is reasonably practicable the health, safety and welfare at work of all its employers (Section 2(1). Health and Safety at Work etc Act 1974) and further to ensure that persons not in its employment were not exposed to risks to their health and safety by way of its undertaking (Section 3(1) of the same Act). The response of the Tribunal was:

"18. We have considered the specific issue put forward by the respondent of the clash of its duty under the Health and Safety at Work Act and the Disability Discrimination Act 1995. We accept that there may well be occasions when the health and safety duty would amount to an objective justification for discrimination. However, we consider in the present case it cannot do so. The respondent is under a duty of reasonable care to its employees. That inevitably means an assessment of risk and the drawing of a line of what is an acceptable risk or not. In the present situation we are 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."

The Tribunal

14. At our hearing we had the benefit of carefully prepared and well presented submissions from, respectively, Mr. Burns on behalf of the Post Office and Miss Tether on behalf of Mr Jones. These submissions have been supplemented by subsequent citation of further authorities and submissions thereon. We are grateful to them. In the event we shall not extend this inevitably long judgment by setting out their respective cases: as we record our conclusions they will each readily recognise their contribution. Those conclusions are as follows.

a. Period A. the Tribunal did not have to give consideration to this period given the concession by the Post Office. Had it done so it could properly refer solely to Section 5(1) and the failure of the Post Office to attempt justification. Whether or not Section 6 was legally relevant; there was no contention that any "steps" had been taken pursuant to such.

b. Period B. We cannot accept the reasoning set out in the already recited paragraph 19. If discrimination can be justified for the duration of a period of assessment then it does not seem to be material as to whether that period started in, say, September 1997 or in February 1998. Further we challenge the relevance of the passage in paragraph 19: "..... in addition that period was principally taken up with assessing how the applicant could be fitted in with a restriction. It was a matter of looking at practicable possibilities for a restriction. What was required was an assessment of whether a restriction was or was not necessary, which is not really what occurred." A period of justified assessment cannot become unjustified because it leads to what in hindsight is deemed to be an irrelevant or wrong conclusion. All this having been said, we do not allow so much of the Post Office's appeal as relates to this Period. Before any finding favourable to it can be made, which ever Section is in consideration, there must be factual findings such as serve to explain the duration and content of the period. Here we can find none such in the Extended Reasons and no material for such in any of the supplemental documentation. On the face of it an assessment persisting from the 12^th February to the end of April is inexplicable and unjustifiable and we will leave the Tribunal's rejection of the Post Office's case as it is.

c. Period C. It is here that the real issues arise and we proceed with circumspection and by stages.

Section 6

(1) We start by reiterating and emphasising the premises for Period C adjudication. Thus, Mr. Jones had become, by common consent, a disabled person. To that development the Post Office had initially reacted by adherence to the letter of its policy. Thereafter there had been reconsideration with the benefit of advice from Drs. Thomas and Boorman. That had led to a proffered modification of the earlier stance and treatment of Mr. Jones which was, said the Post Office, justifiable. It will be noted that thus far we have utilised language that is neutral and non-specific by reference to the Act.

(2) It was in these circumstances that the Statement of Agreed Points placed by the parties before the Tribunal identified Period C as raising the issue of compliance with the Section 6 duty, as did the respective final written submissions.

(3) In the light of the foregoing, did the Tribunal misdirect itself in concluding that Section 6 had no application to its task, see the already recited paragraph 13 of the Extended Reasons? We are entirely satisfied that the Tribunal seriously misdirected itself at this point. Given that Mr. Jones was "a disabled person", given that in September 1997 the Post Office had made an "arrangement" upon which employment was offered but which put him "at a substantial disadvantage in comparison with persons who are not disabled", the Post Office then plainly came under a Section 6 duty "to take such steps as it is reasonable, in all the circumstances of the case for (it) to have to take in order to prevent the arrangement in question from having that effect." The Post Office never argued the contrary, but contended that it had subsequently taken such steps, that is by devising and proffering a modification of the original "arrangement" so that the parties reasonably argued the merits of this modification in the context of compliance with Section 6. What of the reasoning of the Tribunal? A contention that the issue is "whether the adjustment is or is not necessary" does not take this case out of Section 6; it simply foreshadows a concern as to whether the only step suitable to meet Section 6 requirements would be complete revocation of the original "arrangement". It is ironic that in the event the Tribunal itself ultimately made recommendations which, were they to be challenged, could only be justified as Section 6 "steps".

(4) Was this misdirection material? We think that it was. Had the Tribunal directed itself that a Section 6 issue arose then it would have consequently directed itself, first, to make findings of fact as to what steps, if any, the Post Office had taken (and when and why); and second then to make the further findings called for by Section 6, namely whether those steps were reasonable, in all the circumstances of the case, for the Post Office to have to take in order to minimise or obviate the discriminatory effect of the arrangement made in September 1997 - an exercise invoking, inter alia, Section 6(3) and (4). With findings under both heads, the Tribunal would then be in a position to make the further findings required by reference to Section 5. In the event the Extended Reasons set out no 'first stage' findings of fact (hence, incidentally, the problem with Period B) and therefore include no ostensible attempt to evaluate whatever steps were taken by the Post Office as employers by reference to Section 6. Thus had there not been this misdirection we would have anticipated findings as to what (if any) steps were made to evaluate the particular circumstances of Mr. Jones and that which could be done within the limits of reasonable practicability about such discrimination as arose from the September 1997 arrangement. We would have anticipated identification of any input from expertise and from other relevant sources (for example, motor insurers). Turning to the second stage, we would have anticipated evaluation of those steps. For all this, the agenda is inevitably set by the Post Office, as employers: it is its 'steps' that are in issue together with its justification. Turning to the Extended Reasons, this route was by-passed. True, we infer an acknowledgement that Dr. Boorman was an expert on driver licensing (and thus, presumably an endorsement of consultation with him by the Post Office), but for the rest the matter is tackled, as it were, de novo and without reference to the 'steps' of the Post Office. Thus, having heard from both Dr. Boorman and Dr. Press, the Tribunal made its own evaluation on their evidence of the risk of an accident happening by reason of the applicant's driving - and in addition (per paragraph 18) of the risk posed by driving in the course of his employment to fellow employees and to third parties. It necessarily assumed that the whole case fell to be resolved by hearing these doctors. In the event, Dr. Boorman understandably maintained the advice that he had apparently given to the Post Office, but the matter was simply resolved by the Tribunal's preference for the opinion of Dr. Press. In our view, the issues as posed by the complaint and reiterated by the parties were not confronted. What the parties got was a quasi-Section 6 exercise of a limited kind conducted by the Tribunal solely on the basis of evidence tendered to it at the hearing - with evidence of Dr. Press being fresh to the Post Office and not hitherto considered by it. It is in these circumstances that we are satisfied that the misdirection was material, seriously so. That said, several matters call for specific consideration. Thus,

(a) It has to be said in defence of the Tribunal, that notwithstanding their respective submissions to the effect that Section 6 was material, the parties compounded the effect of the misdirection by putting before the Tribunal evidence limited to the applicant and the doctors; there was no evidence from the Post Office itself, as employers. Further, at no stage (as we understand it) did they seek to help the Tribunal as to the materiality of that which was put before it. Thus, the relevance of evidence from Dr. Boorman ought to have been to establish his expertise (and thus the merit of consultation by the Post Office as part of their "steps") and to confirm the advice that he had given. What of Dr. Press? As we see it, he could only be strictly relevant in so far as he challenged the stature of Dr. Boorman as someone appropriately to be consulted by the Post Office in connection with applicant - and in the event he did not do so - and, further if minded, to provide material on the basis of which the Tribunal could recommend a fresh Section 6 re-appraisal. It is here we acknowledge a submission by Miss. Tether. Given that the applicant and his advisers had no role in the Section 6 exercise by the Post Office, when (she asked rhetorically) if not before the Tribunal can attention be drawn to the existence of an alternative medical assessment that merits consideration? We think that she is right: but the resultant decision is not 'do we prefer Dr. Boorman to Dr. Press' but 'do we think that the latter's views are sufficiently impressive to cause us to recommend a fresh Section 6 exercise by the Post Office, as employer'? However, returning to our theme, we appreciate that none of the foregoing reasoning as to relevance was before the Tribunal - further, forensic experience with this Act is so limited that it is not surprising that the parties did not seek to define the relevance of that which they put before the Tribunal.

(b) We appreciate that the Tribunal did direct itself that its consideration of the issues was by reference to Section 5(1) and (3). Granted that we categorise that as a misdirection, did it nonetheless justify the 'de novo' approach of the Tribunal that we have already described? We think not. By reference to Section 5(1) and (3) the Tribunal had to rule upon the matter not, as it were, afresh and wholly at its own discretion, but by reference to the justification in fact put forward by the Post Office as employers: "was it both material to the circumstances of the case and substantial"? In the event the sole justification tendered was that which had been put forward under the Section 6 umbrella and thus in the event a Section 5(1) and (3) adjudication inevitably covered the same ambit as a Section 6 deliberation. Two further points merit mention. First, the philosophy of this part of the Act is essentially 'belt and braces': that Section 5(1) and (2) are not necessarily mutually exclusive and can overlap in the circumstances of a particular case, allowing an applicant two bites at the same cherry is foreseen in drafting, hence Section 5(5) and the reference to such in Section 5(3); see also Mummery L.J. in Clarke v TDG t/a Novacold (1999) IRLR 318 at 326. Second, there is however a practical value in tackling the issue, discrimination or no, by the Section 6, Section 5(2) and (4) route. The drafting of Section 6 forces to an unusual degree specific attention upon many particular factors that may bear upon the value of an employer's justification. If that statutory guide is arguably relevant it would seem a pity not to use it.

(c) There is another dimension to the Tribunal's direction to itself. We have already recited in full paragraph 15 of the Extended Reasons and we now draw attention to the direction, "The decision in the case must be ours". Does this justify the Tribunal's course in resolving the case by way of its preference of the views of Dr. Press? We think not. Plainly when applied at the right time and in the right context, the direction is unimpeachable. In the instant case once the Tribunal had found the facts as to the "steps" taken by the Post Office as employers and as to the Post Office's own justification of the reasonableness of these steps, then it was for the Tribunal to make its own decision as to whether on such premises the Post Office had made out its case. The citation from Morse v Wiltshire County Council (1998) ICR 1023 at 1034 relied upon by the Tribunal is, we suggest to that same effect albeit that the actual context was as to the approach of a Tribunal to an issue arising under Section 5(2) and (4) when there was an alleged failure to honour a Section 6 duty. What however is not justified by the citation is what in the event occurred: a decision by the Tribunal made as quasi - employer purely on the evidence received by it at the hearing so that it perceived no need to find facts as to the conduct and reasoning of the actual employers. Yes, the decision is that of the Tribunal but it is not, as it were, a free-standing de novo decision, it is a decision the ambit of which is dictated by the conduct and stance of the actual employers. All this necessarily flows from the Act: all the relevant Sections fall within the part of the Act headed 'Discrimination by Employers', all such relate to the stance of employers when confronted by a disabled employee.

(d) Further, leading on from the latter point, we spell out clearly that to which we have already made allusion. Given its assessment of its own role, the Tribunal understandably felt free to make a recommendation that Mr. Jones "should be returned to his driving duties", subject only to the three accepted conditions, which recommendation left no role for the Post Office as employers other than compliance. Having regard to its exposure to the views of Dr. Press and its preference for them, some recommendation pursuant to Section 8(2) was readily justifiable - not however in the form adopted. It is to be noted that Section 8 is also within that part of the Act that is directed to 'Discrimination by Employers' and we draw attention to the scope for making recommendations as provided by the already recited Section 8(2)(c). Had the Tribunal heeded its terms then the recommended would have had to be that the Post Office take, within a specified period "action appearing to the Tribunal to be reasonable, in all the circumstances of the case, for the purposes of obviating or reducing the adverse effect on the complainant of any matter to which the complainant relates." Given that the reasonable action to be recommended had to be within the powers of the Post Office as so provided by the Act, it follows that the only lawful way in which the Tribunal could have given effect to its preference for the views of Dr. Press would be to recommend that the Post Office within a specified period did consider taking further steps pursuant to Section 6 in the light of the opinion of Dr. Press as to the concurrent and continuing risk of Mr. Jones experiencing a hypoglycaemic episode. The contrast between the recommendation that was made and that which was open to the Tribunal is not mere pedantry. First, the format of the recommendation that was open to the Tribunal is of a piece with our emphasis on the role of the Post Office as employers. Had the Tribunal not misdirected itself, it would have focussed upon that which the Post Office had done and its resultant justification so that any recommendation would have been directed in the natural course of things to these employers as is recognised by the terms of Section 8(2)(c). Again, any consideration of the scope given by Section 8(2)(c) would have constituted another prompt to see this matter as inevitably centred upon the exercise of Section 6 powers - without the latter how else was the recommendation to take effect, a fortiori with the three accepted conditions? Second, we draw attention to the recommendation as it was expressed. The objection does not just arise by reference to the scope of Section 8(2)(c). Given that the Tribunal had effectively constituted itself as quasi-employer for the purposes of its decision and for the purpose of a recommendation in the terms chosen, the fact remains that it is not the employer and it owes none of the duties of such. Mr. Burns correctly submitted that the views of Dr. Press go simply to the likelihood of an accident happening - they cannot cover all the factors that an employer under the duties imposed by the common law and the Health and Safety at Work etc Act 1974 must consider: such factors remained for his clients. It is unfortunate and, we have to say, wrong for the Post Office to be effectively directed to return Mr. Jones to driving without any interim exercise of its own discretion so that it could justify that state of affairs (and any untoward consequences) as employers. We cite 'untoward consequences': suppose that Mr. Jones were immediately returned to driving solely on the Tribunal's recommendation and did have an hypoglycaemic episode leading to an accident involving a third party. What then would be the position of the Post Office vis à vis the latter?

(e) By way of a supplemental submission we are invited by Miss. Tether to consider two very recent authorities that have become available since we reserved this judgment. We do so as follows:

(i) Vicary v British Telecommunications (1999) IRLR 680. This is a decision of this Tribunal with the issue being as to whether an Employment Tribunal had correctly approached the question whether an applicant had a disability for the purpose of the Act. Miss. Tether draws attention to a passage at 682 in which this Tribunal rules that it was for the Employment Tribunal to make its own assessment in resolving the issue so that there was a limit to the relevance of expert medical opinion. She invites us to regard this as supporting the approach of the Tribunal in the present case. In the event we are not assisted. The issue in Vicary reflected the already quoted Section 1, that is, a Section outwith that part of the Act relating to 'Discrimination by Employers'. The scope for the Tribunal allowed by Section 1 is plainly different from that posed by Sections 5 and Section 6. Its terms readily invite an assessment by the Tribunal on the basis of the evidence unaffected by any justification tendered by the employers.

(ii) Rose v Bouchet (1999) 1RLR 463. This decision of the Edinburgh Sheriff Court related to alleged disability discrimination in relation to premises, a concept introduced in Section 22. By Section 24(2) prima facie discriminatory treatment by a person ('A'):

" ..... is justified only if-

(a) in 'A's opinion, one or more of the conditions mentioned in subsection (3) are satisfied; and

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

It was necessary for the Court to apply this subsection and to that end the Sheriff Principal directed himself:

"My decision

Having considered the relevant provisions in the Act, I am satisfied that, for the reasons advanced by the solicitor for the defender (which I have summarised earlier), the employment provisions in ss. 5 and Section 6 are significantly different from the provisions in s. 24, with the consequence that no assistance in the construction of the latter section is to be derived from cases dealing with the employment provisions. It is therefore necessary to look in detail at what is actually contained in s.24. Having done so, I have come to the conclusion that it is unhelpful to seek to construe the provisions of that section as requiring either a wholly objective or a wholly subjective interpretation. In my opinion, the provisions require an interpretation which is in part objective and in part subjective. Moreover, I am of opinion that the manner in which the provisions fall to be applied in a particular case will depend to a large extent on the facts and circumstances of that case."

He then developed this direction by holding that the test invoked by Section 24(2)(a) was subjective and that necessary for (b) was objective. Miss. Tether draws attention to the contrast between the terms of this provision and those of Section 5 relevant to the instant case. She submits that had Parliament intended there to be any subjective element to the issue 'justification or no' as arising under Section 5 then the drafting would have been similar to that utilised in the same Act for Section 24(2). Absent such terms, then the Section 5 issue was to be resolved wholly objectively as was the apparent view of this Tribunal. In response, Mr. Burns points to the different context. For the purposes of Sections 22 and 24 an opinion has to be established and then substantiated as reasonable. For the purposes of Section 5 a justification has to be established and the issue becomes as to whether it is material to the circumstances of the case and substantial. For our part we do not gain assistance, particularly having regard to its structure and drafting, by comparing one part of the Act with another. As it seems to us, any approach to Section 5 has perforce to be part subjective and part objective. Thus justification cannot arise until it is subjectively claimed. Once there are findings of fact as to what is claimed (a subjective exercise), then there follows the inevitably objective enquiry into materiality and weight. We agree with the Sheriff Principal that no light is thrown on Section 24(2) by Section 5, and vice versa, but for reasons integral to both Sections the respective approaches by a Tribunal are inevitably the same.

Section 59

15. This point, dealt with by the Tribunal in the already recited paragraph 18, is categorised by Mr. Burns as his 'central submission'. With respect, we would regard it as simply an additional point for the Post Office - which is as well because we reject it. The object of Section 59 is presumably to prevent a finding of unlawful discrimination when that which is prima facie discriminatory is authorised or required by a statute or a regulation. It would seem to be essentially another example of the 'belt and braces' approach evinced by this statute since the existence of a material statute authorising or requiring what otherwise would be discriminatory suggests readily demonstrable justification and thus no discrimination. Be that as it may, Section 59 had here no ready relevance. That which was said to be unlawful was not authorised or required by statute - it was not the latter that demanded a restriction on his driving, rather it was the employers' perception of what was appropriate in fulfilment of the duties imposed upon them by common law and statute.
16. That said, it is not without interest as to how the point arose - and how it was dealt with. Seemingly, the Post Office felt it necessary to remind the Tribunal that it was subject to concurrent obligations to others pursuant to the Health and Safety at Work etc Act 1974 presumably so as to deflect the Tribunal from making decisions that were for the Post Office as employers. Further, the Tribunal then felt it right to make those decisions so that it sought to anticipate and rule upon the relationship between the Post Office and employees and third parties on the basis of unrestricted driving by Mr. Jones in the course of his employment. Our point as to the failure of the Tribunal to keep within the limitations imposed by the complaint is illuminated by this resultant need to look as quasi-employer at potential breaches of duty arising under the 1974 Act - the matter instanced by us in the preceding part of this judgment.

Conclusion

17. We uphold the finding of discrimination with respect to Periods A and B. We allow the appeal of the Post Office with respect to Period C and set aside the finding and the recommendation. If the parties have not already satisfactorily resolved the position of Mr. Jones (by, say, another Section 6 adjustment), then we have no option but to order a rehearing before a differently constituted Tribunal. We draw strong attention to the need to assist the latter by careful selection and presentation of all the evidence that is material.