United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS B HEWSON (of Counsel) Instructed By: Wilson Houlder & Co 91 South Road Southall Middlesex UB1 1SH
For the Respondent	MR R GREENING (of Counsel) Instructed By: Borough Solicitor London Borough of Hounslow The Civic Centre Lampton Road Hounslow TW3 4DN


 


MR JUSTICE CHARLES:

1. This is an appeal against a decision of an Employment Tribunal sitting at London (South) the Extended Reasons for which were sent to the parties on 29 July 1998.
2. The Appellant (who we directed should not be referred to by his name in the title to these proceedings and herein) (Mr A) maintains that the conclusion of the Employment Tribunal that the Respondents (the London Borough of Hounslow) did not discriminate against him for a reason relating to his disability is wrong.
3. As appears from that finding Mr A's claim was made under the Disability Discrimination Act 1995 (the DDA).
4. The nature of Mr A's claim and the issues before the Employment Tribunal appear from paragraphs 1 and 3 of the Extended Reasons which are in the following terms:

"1. By an originating application that was presented on 20 January 1997, the Applicant complained that he had been discriminated against contrary to the Disability Discrimination Act 1995 by the Respondent dismissing him from his job of Physics/I.T. Technician and that, contrary to the Act, no reasonable steps were taken by the Respondent in respect of the nature and extent of the disability suffered by the Applicant.

3. The issues for the Tribunal to determine were:

(i) whether the Applicant has a disability for the purpose of section 1 Disability Discrimination Act 1995, and if he had;

(ii) whether the Respondent had treated the Applicant less favourably within the meaning of section 5(1)(a) DDA having regard to section 5(3);

(iii) whether the Respondent cannot show that the treatment in question was justified, within the meaning of section 5(1)(d);

(iv) whether the operation of sections 6(1) or 6(2) DDA imposed the duty on the Respondent to make adjustments and if they did;

(v) whether the Respondent had taken such steps as were reasonable in all the circumstances of the case in order to prevent the arrangements or feature having the effect of placing the Applicant at a substantial disadvantage in comparison with persons who are not disabled, having considered whether the employer could have taken steps set out under section 6(3)(a)-(l) and having regard to section 6(4)(a)-(e)."

5. This appeal relates to issues (i) to (iii). Counsel for the Appellant (Mr A) did not pursue an application to amend the Notice of Appeal by reference to what was submitted in her skeleton argument to be developments in the law relating to "reasonable adjustments" to add grounds of appeal relating to section 6(1)(a) and (b) and section 6(3) DDA. The reason Counsel gave was that those grounds relied on the same factual assertions as her arguments in respect of section 5 DDA.
6. In the context of this abandoned application to amend I mention that following the preliminary hearing of Mr A's appeal the Respondents made an application for directions at which Lindsay P made it clear that his appeal could only proceed on grounds mentioned in the Notice of Appeal, as it then existed, or with any amendments thereto that might be allowed.
7. The Notice of Appeal sets out the following grounds:

"The Appellant appeals against paragraph 2 of the decision of the Industrial Tribunal (London South office) of 29 July 1998 replying on the following grounds: -

1. The Tribunal erred in law in its consideration of the defence of justification under Section 5(1)(d) of the Disability Discrimination Act 1995.

2. The Tribunal gave the wrong statutory construction to Section 5(3) of the Disability Discrimination Act 1995 in assessing the threshold of what is 'material' and 'substantial' in determining whether the reason for dismissal was 'material to the circumstances of the particular case and substantial' as provided for in Section 5(3) of the Act. The Appellant contends that the threshold to be applied is considerably higher and relies on authorities for the contention:-

RAINEY -v- GLASGOW HEALTH BOARD 1987 IRLR 26 HL

TOOGOOD -v- GLAN CLWYD HOSPITAL TRUST 2900868/97

3. The Tribunal heard no hard evidence merely speculation as to risk, and this was insufficient to form the view formed.

4. The Respondent failed to provide any psychiatric evidence to the tribunal. The Tribunal erred in law by misattributing an expert opinion to Dr Woolf (The Appellant's expert) which he did not express. (Paragraph 15 of Decision).

The Tribunal found that in Dr Woolf's opinion the Appellant posed '..an incalculable risk' when no such opinion was expressed.

Dr Woolf concluded 'The possibility that he presents a risk to himself is right but probability is very low. One has to admit a possibility but it is speculative'.

5. The Tribunal wrongly drew adverse inference from the Appellant's medical history in support of its finding of justification, which were not supported by the evidence before it -i.e. the Applicant's complete medical history, the tribunal was selective in matters relied on in support and dismissive of Dr Woolf's expert opinion of '...stereotypical views of schizophrenics'.

6. The Respondent failed to show a proper consideration of the Appellant's particular disability by failing to obtain suitable medical opinion. The Tribunal received no evidence as to the Respondent's assessment of the Appellant save unsuitable non-psychiatric medical opinion from Dr Cooper. The tribunals have wrongly upheld a flawed assessment by the Respondent as being acceptable consideration for raising the defence of justification under Section 5 (3) of the Disability Discrimination Act 1995."

8. In our judgment it was correctly asserted and acknowledged by the Appellant's Counsel that there is a degree of overlap in the grounds set out in the Notice of Appeal. As appears therefrom those grounds contain three main elements or arguments, namely

(1) an assertion that the Employment Tribunal took the wrong approach in law to the issue of justification (paragraphs 1 and 2),

(2) the Respondents (and the Employment Tribunal) failed to have proper regard to the Appellant's particular condition and therefor did not have sufficient information to enable them to properly assert (and in the case of the Employment Tribunal to find) that the reason for the dismissal was justified. In particular, the Appellant asserts that the medical opinion obtained by the Respondents was not from a person with appropriate medical qualifications and experience and, as a consequence, the reason for the dismissal (and the conclusion reached by the Employment Tribunal) was based on speculation as to risk and therefore was not justified (paragraphs 3 and 6) and

(3) an argument that the Employment Tribunal made findings that were not supported by the evidence (paragraphs 4 and 5).

9. Before turning to deal with these arguments I mention that there was also a cross-appeal before us.
10. The cross-appeal had two grounds but, in our judgment correctly, Counsel for the Respondents accepted that only one of them was arguable. This was that the Employment Tribunal erred in law in concluding that Mr A was a disabled person. The position of the Respondents was that they were content not to advance such argument if we were minded to dismiss the appeal. At the end of the argument on the appeal we announced that we had decided to dismiss it and would give our reasons later in writing. Accordingly no argument was advanced on the cross-appeal and in those circumstances we are of the view that we should formally dismiss the cross-appeal on the basis that (subject to any direction of the Court of Appeal) the Respondents can pursue their cross-appeal in the Court of Appeal if the Appellant appeals our decision.

Relevant provisions of the DDA

11. The sections that are central to the appeal are sections 5(1) and (3). However, in our judgment these sections have to be construed and applied in their context. In particular, in our judgment, it has to be remembered that there is a linkage between sections 5 and 6, not least because subsection 5(3) is subject to subsection 5(5) (which refers to and covers the case where an employer is under a section 6 duty).
12. The need to consider section 5(1) and (3) in their context causes us to set out sections 5 and 6 in full (and we note that they were referred to in paragraphs 37 and 38 of the Extended Reasons). Those sections are in the following terms:

Section 5 provides:

(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.

Section 6 provides:

(1) Where –

(a) any arrangements made by or on behalf of an employer,

(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.

(2) Subsection (1)(a) applies only in relation to –

(a) arrangements for determining to whom employment should be offered;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit 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) –

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his working hours;

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

(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;

(g) giving him, or arranging for him to be given, training;

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision.

(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.

(7) Subject to the provisions of this section, nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others."

13. In our judgment in considering the issues that are the subject of this appeal the Employment Tribunal were right to have those provisions of the DDA in mind.

The factual background

14. This is helpfully and clearly set out in the Extended Reasons and we pause to comment that, in our judgment the Employment Tribunal deserve praise for the quality of those Extended Reasons.
15. The Employment Tribunal heard evidence and saw documents relating to Mr A's medical history which went beyond the information considered by the Respondents at the time they made their decision to dismiss Mr A. In our judgment this is something that needs to be remembered and, indeed, it was something that was recognised by the Employment Tribunal in their Extended Reasons.
16. We are of this view because information that was not known to the persons who took part in the decision to dismiss introduces (or can introduce) elements of hindsight.
17. In our judgment this does not mean that such evidence is irrelevant to the question whether the reason for the less favourable treatment was justified and thus both "material to the circumstances of the particular case and substantial" (see s. 5(3) DDA).
18. The relevance and effect of such evidence will vary from case to case.
19. As appears later in this judgment we have had regard (i) to the position at the time that the decision to dismiss was made, and (ii) to the position at that time taking into account the further information available at the time of the hearing before the Employment Tribunal.
20. The Employment Tribunal set out the facts in paragraphs 4 to 31 of their Extended Reasons. Those paragraphs are in the following terms:

"4. Having heard the evidence of the witnesses and having considered the documents put before us the Tribunal found the following facts on the balance of probabilities.

5. The Applicant has a psychiatric history which commenced in or about 1989. At that time he was studying to gain an HND in physical sciences at South Bank Polytechnic. He started to have individual counselling sessions at the Polytechnic which lasted for about two years (76-80 at 78). He gained his HND in June 1990. In September 1990 he enrolled at the University College London to study a BSc in Physics, Electronics and Computing. From May to October 1991 he saw another counsellor at UCL. He left at the end of the second year after having failed his examinations and remained unemployed until he was able to secure voluntary work as a work placement, teaching assistant, in February 1994 (36- 7). In December 1992 he had an outburst of verbal aggression at home which he was unable to recall the following day (64-66 at 64 and 76-80 at 79). Then in February 1993 he had an onset of auditory hallucinations in the second person. (He described the sound of this as similar to experiencing a radio that is continually on in the background, save that the voices may comment on his actions or make strong efforts to draw him into a discussion or argument. When the voices begin to talk, it is not clear to, without some investigation of the surrounding environment, whether they are internal or external. ) He believed on this occasion that someone was being held against their will in the neighbouring house. He was concerned and so telephoned the police who came to his house, conducted a search and found nothing. From the 15 February 1993 until the 17 March 1993 he was admitted to the West Middlesex Hospital following this depressive breakdown. During this period in hospital he was recorded as having fantasies of mass murder, rambling about electronics, talking about lights in the street and was having auditory hallucinations in the second person. It was believed by the consultant psychiatrist that he might be suffering from schizophrenia (64-66). He received no medication at first but on the 24 February 1993 he was administered with drugs as part of a drugs trial. On the 26 February 1993 he experienced severe side effects from these drugs, he was immediately administered an antidote. However, the drugs trial continued until the 7 April 1993. Throughout this time he continued to experience side effects from the drugs and the side effects did not wear off. Therefore he stopped taking the drugs in April 1993.

6. The Applicant was referred to the Regional Forensic Unit, Ealing Hospital after being discharged from the West Middlesex University Hospital because the consultant psychiatrist was slightly concerned about the Applicant's continued expressions of fantasies of mass murder (68-71), therefore the Applicant continued to be seen after his discharge as an out patient. It is recorded in a medical report dated 6 May 1993 from the West Middlesex Hospital that the Applicant was looking for work as a laboratory technician and had been encouraged not to return to his studies for the time being because he might find studying too stressful. He reported on this occasion that he had been experiencing unpleasant side effects from his prescribed medication and that he had stopped taking medication on 8th April. It had been agreed that he need not resume his medication for the present and that he would be reviewed within a month (73- 74). The Applicant lives at home with his parents and siblings, and he was assessed, together with his father, at the Regional Forensic Unit, Ealing Hospital on 31 March 1993 and on 17 May 1993 (76-80). In the opinion of the senior registrar the Applicant was not likely to be dangerous in the near future and did not present a risk to members of the public, although it was recommended that he should be regularly supervised so that any untoward behaviour could be detected in good time. It appears to the Tribunal that the Applicant did not inform the registrar that he had ceased taking the prescribed drugs at either interview, we say this because the only reference in that report is to the Applicant complaining that he was suffering side effects from the medication, when we know from the evidence that he had stopped taking medication about a month earlier.

7. At the Applicant's follow up assessment at the West Middlesex Hospital, on 2 June 1993, the Applicant reported feeling well, and told the psychiatrist that he had not taken his medication for a period of six weeks (81).

8. In or about September 1993, the Applicant commenced a four year degree course in physics, studying part-time, evenings, at Birkbeck College, London. The Applicant was the President of the physics society and when in 1996 it was proposed that the physics laboratory would close he set up a working party among the students and organised a campaign against the closures. The Applicant's employment and academic history is set out in his curriculum vitae (34-37). He has held four jobs for short periods since 1984 and has undertaken courses of study. He has acquired additional computing skills during this time.

9. On 1 November 1993 he was assessed at the forensic unit at Ealing Hospital. He was at this time experiencing a number of symptoms. He felt telepathic, he felt that a group of people were trying to brainwash him and were putting thoughts into his head, he believed that some people could read his thoughts, and he thought that voices were trying get him to kill others or himself. He reported that the voices were both an irritant to him and upset his concentration. This was the first occasion on which the Applicant was diagnosed as a paranoid schizophrenic (160-163). The Applicant did not believe that the voices were part of his schizophrenia and despite these symptoms, he reported that he felt normal. He was not detained but a few weeks later on the 26 November 1993 he was admitted to West Middlesex Hospital having been found wandering the streets. He was experiencing auditory hallucinations on this occasion, but he now found them so distressing that he had thoughts of suicide as a means of stopping them. His family were concerned that he might harm himself or get hurt by others. He remained at the hospital as a voluntary patient until his discharge on 13 December 1993 (164-173). He was reluctant to accept any medication and he did not receive any regular medication during his treatment in the hospital.

10. After his discharge he returned to attending the hospital as an out-patient, the first of these appointments was on the 20 January 1994. At the first appointment it was recorded that he was reluctant to take any medication and that he had taken the prescribed neuroleptic, Haloperidol (this drugs acts to stops the auditory hallucinations) in the past but that the side effects were so severe that they interfered with his thought processes and his vision and that his studies would suffer as a result (174-175). It was because he was reluctant to take any medication that he was required to have regular appointments thereafter (174-197). The Applicant has been interviewed by junior trainee psychiatrists during these outpatient appointments and he has not had an in depth assessment of his condition. They invariably express surprise when they discover that he is not taking any medication for his illness.

11. As an alternative to medication the Applicant has chosen to read widely about his illness. By doing so he has acquired a great understanding and insight into his condition. He has discovered, by reading and occasionally attending lectures, a way of controlling the effects of the schizophrenia for example, by telling himself that the voices were a result of the chemical imbalance in his brain and by adopting a variety of coping strategies.

12. He has not told his parents that he had stopped taking medication because it might upset them (177). He has also allowed his own G.P. to believe that he is taking medication.

13. By March 1994 he was confident that he could be relied upon to take medication only when necessary, that he could recognise when he was having an acute episode of schizophrenia and was capable of requesting help. He also believed that regular medication was unnecessary because it would not prevent him from becoming unwell again. At about this time he began to obtain help from Ms Madeline O'Carroll, who was a research cognitive behaviour therapist. For the next two years he had appointments with her at the West Middlesex Hospital. She was instrumental in helping him to remain drug free by developing and refining his methods of dealing with the illness (110-112).

14. It is recorded on the 27 October 1994 during an out-patients appointment that the Applicant had taken the drug Haloperidol for an episode of auditory hallucinations a few weeks earlier. That was the last occasion on which the Applicant took any medication for the auditory hallucinations (182).

15. Dr Woolf examined the Applicant for the purpose of these proceedings. We understand from the evidence of Dr Woolf and the documentary evidence that presently, the Applicant has a chronic medical/mental condition. He has not been symptom free for many years. He expresses no concern at his continued auditory hallucinations. He continues to attend out-patient appointments for a review of his condition. He has not always demonstrated a good insight into his condition and has from time to time sought to rationalise his ideas and auditory hallucinations as not being part of his illness, when they clearly are. Whilst he has deliberately led his family and his G.P. into believing that he takes medication, this is fairly common amongst such patients. Someone with his illness might be expected to be unable to cope with stress, but in the view of Dr Woolf, aside from examination stress the Applicant appears to cope well with the demands of his present demanding employment. The Applicant's symptoms appear to be worse at home than elsewhere. He continues to be interviewed regularly as an out-patient under the supervision of senior house officers at the Middlesex Hospital. His counselling by Ms O'Carroll ending in or about May 1996. He receives no other supervision or treatment for his illness. We understand that he follows the views of a Professor Romme which concerns the daily management of these voices by the individual. Dr Woolf described these methods as alternative to medical orthodoxy, but effective nevertheless. He has been, and continues to be successful in controlling his condition without medication. The Applicant has been free of any acute episodes since 1993, nevertheless there is a possibility that a relapse may occur. The probability of that occurring is low in a work setting, but it cannot be excluded. If an acute episode did occur, then there was a possibility that the Applicant would be a risk to himself, and an incalculable risk to staff and pupils.

16. Dr Woolf, gave evidence that the Applicant is unique in his experience by the way he has managed his condition well and without taking drugs, and by the way in which he appears to be coping with his present stressful job in those circumstances.

The job

17. Cranford Community School is a large secondary school. It has twelve hundred pupils aged between eleven and eighteen years of age. It is a community school and it is used during school holidays and after school providing classes for the local community.

18. On 2 October 1996 the Applicant saw an advertisement for the full time post of physics/information technology technician at Cranford Community School (31). He applied for the job by sending his CY and a covering letter to the school (34-7).

19. The Tribunal heard and accepted the evidence from Ms Spiller, Senior laboratory Technician, about the work of the school's science department and the environment in which the Applicant would have been expected to work. The school has an extensive science department. There are a number of classrooms where laboratory equipment can be used and, in addition, eight laboratories. There is a large central preparation room where equipment is held and this room is also used as a chemical store. The science teachers prepare lessons in the central preparation room and other preparation rooms for individual subjects are also available. The school teaches 'A' level Physics and GNVQ qualifications. The physics IT staff have access to equipment which includes sharps, scalpel, concentrating acids and poisons and radio-active sources. Teachers are not permitted to leave classrooms when pupils are present because of the risk from unattended equipment. Technicians are continually required to be vigilant bearing in mind the potential dangers of the materials. They may receive requests for equipment from pupils. In these circumstances they are obliged to make a risk assessment in order to decide whether the item is being required to the pupils own use, or whether the request is genuinely required for the class room and can be given to the pupil. At the end of each lesson the technician has to count all of the equipment, particularly scalpels, craft knives and mounted needles. A large proportion of the equipment which is set out in various rooms could have potentially serious consequences if used in an unauthorised manner. All technicians are required to assist where necessary. Therefore, for example a physics IT/Technician could be required to assist preparation for chemistry lessons. All technicians are given training in safety aspects and procedures for dealing with spillages. All chemicals have to be decanted and correctly labelled and technicians are required to be vigilant at all times. The science preparation room is a busy area with pupils and teachers coming to and fro. Text books are collected and returned by pupils as is the laboratory equipment. All laboratory technicians are responsible for ensuring that equipment is put down safely and the same number of items returned by pupils. From time to time pupils misbehave and pick things up. They are also capable of deliberately provoking staff. Technicians are continually making preparation for class work and therefore daily required to meet deadlines. We accepted the view of Ms Spiller that the work of a technician at the school is very busy and can be stressful.

Job offer

20. On 2 October 1996, the Applicant received a job description and a person specification (32-3) and was invited to attend an interview which was due to be held on Friday 18 October 1996 (38). On Wednesday 16 October 1996 the Applicant supplied names of referees (43). He attended the interview and was verbally offered the job. The offer was later confirmed in writing and it was made subject to a satisfactory medical report and a police check. A medical questionnaire and a police check form were sent to the Applicant at the same time as the offer letter. There had been a vacancy for a physics/IT Technician for some time. The vacancy was causing a great deal of inconvenience to the department and the existing technicians were being required to cover the vacant post between them which added to their already busy workload. The Respondent school was anxious to have a suitable employee in post as soon as possible and for that reason the Applicant was required to start work on 28th October (39).

21. The Applicant submitted his medical questionnaire to the Respondent on 24 October 1996 (44-46). It was received by the Respondent on Friday 25th October. The Applicant stated under the heading of 'illness and conditions …'

'schizophrenic breakdown Feb 1993 1 month

and schizophrenia Nov-Dec 1 month

1993 13 days.'

He also indicated that he had been hospitalised during these periods.

22. The completed questionnaire was received, by Ms Linda Hoskins, Principal Occupational Health Adviser, the next working day, which was Monday 28 October 1996, the day the Applicant was scheduled to start work. Ms Hoskins was concerned about the references to schizophrenia and telephoned Ms Doreen Dixon, Head of Personnel, Education Department, to ascertain whether the Applicant had indeed commenced employment. Ms Dixon confirmed that he had commenced on that day and Ms Hoskins offered to see the Applicant immediately.

23. The Applicant had been at work for ten minutes when he received a message that Ms Hoskins wanted to see him. He went to her office where she interviewed him about his health and his fitness for work. She took notes of this interview which are at 48-49. During the course of the interview the Applicant told her he had been seen by Dr Evans and that he, Dr Evans, had completed his health questionnaire.

24. After the interview Ms Hoskins telephoned Dr Cooper, Occupational Health Physician and she, Dr Cooper, advised her that a further assessment was required; and that could be in the form of a letter to the Applicant's GP or hospital doctor. Dr Cooper advised that meanwhile, the Applicant should not return to the school.

25. Ms Hoskins wrote to Ms Dixon (50) and advised that further information would be obtained about the Applicant's current and future health. By a letter dated 28 October Ms Hoskins wrote to Dr Evans, Psychiatric Outpatients Department at West Middlesex Hospital. The letter read:

'...In order that I may advise management regarding your patient suitability for the post I would be grateful if you could provide me with a report detailing past medical psychiatric history regarding his schizophrenia. Results of any recent investigations and hospital visits would also be helpful ...' (122).

26. The Applicant, having reported for work on 28 October, was placed on the payroll and received a letter from Ms Dixon setting out that the post was subject to satisfactory references, medical and police clearances. Dr Evans sent a draft report to the Applicant before sending a final report to the Respondent (126-128). The Applicant objected to some parts of the report that he considered would be detrimental to his continued employment. He asked Dr Evans to amend the report in accordance with his request. Dr Evans acceded to part of the request and amended the report before it was sent to the Respondent (56-58).

27. At the conclusion of the report Dr Evans wrote as follows:

'Opinion

The Applicant is a 31 year old man with a three year history of schizophrenia. He has not been on regular medication since 1993 and despite experiencing psychotic symptoms, appears quite stable and not distressed by his auditory hallucinations or other psychotic symptoms. A forensic psychiatrist assessment in 1993 revealed no cause for concern about this gentleman.

Mr [A] is currently stable and has been working as a voluntary teaching assistant for the last 18 months without any problems but obviously the possibility of a relapse cannot be ruled out.' (56-58)

28. Having seen this medical report Dr Cooper arranged an interview with the Applicant. This took place on 4 December 1996. The interview lasted for over 30 minutes. Dr Cooper had available Dr Evans' report, the job description, and the medical questionnaire. The notes she made are at 59-60 (and a typed transcript is at 61).

29. She sent a letter of advice to the school in the following terms:

'...Carlos suffers from a chronic medical condition which led to two periods of hospitalisation, one for one month, and the other for 2½ weeks, both in 1993. Since that time he has continued to have symptoms although less severe. The nature of his illness is such that if a further relapse were to occur, Carlos' capacity to work would be seriously affected. In addition there is a possibility that he could present a risk both to himself other staff and pupils if he were to be employed at Cranford Community School as a technician.'

30. Dr Cooper, prior to the interview with the Applicant noted that he had exercised his rights to see the medical report and to request amendments before it was sent to her under the Medical Reports Act 1988. Therefore, she had some concerns over the accuracy of Dr Evans' report. (It was later that the Respondent received the original unamended report (126-8)). Dr Cooper was aware the type of job the Applicant was going to do having considered Dr Evans' report, the job description and the Applicant's interview, she considered that the environment of the laboratory was very busy and very stressful. She considered that the children could be confrontational, demanding or rude and this would increase the likelihood of a relapse of the Applicant's schizophrenia. She further considered that the Applicant had had thoughts of murdering as many people as possible in twenty four hours during 1993. There was also evidence that persistent fantasies about mass murder dated back to 1989. Whilst the Northwest Thames Forensic Psychiatric Unit assessed him and found no cause for concern, she noted that their assessment did not take place until May 1993. Whilst it appeared that there was not considered to be a cause for concern, the Applicant refused to continue on any medication. This concerned her. She took into consideration the evidence that the Applicant in 1993 when he heard voices that he thought was telepathic and he believed someone had been kidnapped and held next door he acted on his delusional beliefs by calling the police. Although the Applicant had no forensic history she believed that the persistent fantasies about mass murder combined with his incompletely controlled psychotic symptoms and refusal to take medication rendered him a risk to work as a science technician in the school. She accepted that the risk might be small, but she considered that if he acted on his fantasies the consequences could be enormous.

31. Ms Riddell telephoned the Applicant with the intention of informing him that he would not be able to work for the school. His answered the telephone and told her that he would not be at home until much later that evening. She had to send him a dismissal letter written by Mr John Reece, Senior Personnel Officer, Education (63) and she decided to post it, notwithstanding that she had not been able to speak to him, because she expected that the arrival of the letter would be delayed because of the Christmas post. She intended to contact the Applicant by telephone the following morning to speak to him about the decision. However the letter arrived the following day and by the time she had successfully contacted the Applicant by telephone he had already received the letter. He complained he had been discriminated against on the grounds of his disability and he would take legal action."

21. We add that:

(a) as originally drafted the final paragraph of the report of Dr Evans was in the following terms:

"Mr [A] is currently stable, although there is the possibility that the stress of starting work could cause a deterioration in his mental state."

(b) the first four paragraphs of that report as it was sent were in the following terms:

"Mr [A] was diagnosed as suffering with schizophrenia following a hospital admission in February 1993.

He presented with a six week history of outbursts, poor sleep and appetite, and auditory hallucinations, and delusions of a persecutory nature. He was commenced on neuroleptic medication, but developed quite severe dystonic reactions which were reasonably well controlled with Procyclidine.

During his time on the ward he revealed that he had had thoughts of murdering as many people as possible in twenty-four hours, and because of this he was referred to the North West Thames Forensic Psychiatric Service who assessed him and found no cause for concern. Mr [A] later said his thoughts about murdering people were purely intellectual possibilities and he had no reason or desire to perform any such acts. There is certainly no evidence to suggest that he ever posed a risk. He was discharged after one month, and refused to continue on any medication.

He has been seen on a regular basis in the Outpatients Department where he continues to complain of hearing voices, usually of a derogatory or persecutory nature, and he has increasingly been able to cope with the voices only resorting to medication on one occasion in 1994."

(c) as originally drafted the third paragraph of that report was in the following terms:

"During his time on the ward he revealed that he had had thoughts of murdering as many people as possible in twenty-four hours, and because of this he was referred to the North West Thames Forensic Psychiatric Service who assessed him and found no cause for concern. Mr [A] later said his thoughts about murdering people were purely intellectual possibilities, and he had no reason or desire to perform any murders. He was discharged after one month, and refused to continue on any medication."

(d) the forensic psychiatry report prepared in May 1993 in respect of Mr A states that the reason for his referral was "persistent fantasies about mass murder" and that report also refers to the fantasies about mass murder dating back to 1989 (this report was provided on discovery in these proceedings and was not available to the Respondents at the time they made their decision to dismiss Mr A);

(e) the end of paragraph 30 of the Extended Reasons precisely reflects Dr Cooper's reasoning as set out in her written statement and her oral evidence as recorded in the Chairman's Notes.

The grounds of appeal

22. We propose to take the arguments we have identified in paragraph 8 (1) to (3) above in reverse order.

The assertion that a finding of the Employment Tribunal was not supported by the evidence

23. The finding which the Appellant asserts is not supported by the evidence is the conclusion of the Employment Tribunal that the Appellant posed "an incalculable risk".
24. The wider ground contained in paragraph 5 of the Notice of Appeal was not pursued in argument before us. In our judgment Counsel for the Appellant was correct not to pursue such an argument because having regard to the terms of the Extended Reasons and the evidence before the Employment Tribunal it was unsustainable.
25. The finding that was attacked is contained in paragraph 48 of the Extended Reasons which in our judgment has to be read with paragraph 47 thereof. Paragraphs 47 and 48 of the Extended Reasons are in the following terms:

"47. Having found that the reason for the dismissal concerned the Applicant's disability we find that the reason for the dismissal was 'material' within the meaning of section 5(1)(b). In determining whether the reason for the dismissal was 'substantial' we have had regard to the Code of Practice which defines substantial as meaning not just 'trivial' or 'minor'. Dr Cooper concluded that there was a possibility of a risk to staff and pupils if the Applicant relapsed and had an acute episode of schizophrenia. We find that when the Applicant is not suffering an acute episode, and he has not suffered [one] for years, he is able to assess whether the source of the voices is internal or external fairly quickly and make whatever adjustments are necessary to his actions or thought processes. However we are equally satisfied that if he were to suffer the onset of an acute episode he would not be able to make that assessment at all. We bear in mind that he demonstrated a lack of insight into his condition during his last period of hospitalisation. The Applicant gave evidence that he would take drugs if he felt it necessary, however his personal experience with taking drugs for his illness has not been satisfactory and the side effects were very unpleasant for him. He has also carefully avoided alerting either his G.P or his parents to the fact that he is not taking any medication for his condition. It is not clear in those circumstances how far he could be relied upon to take his drugs if necessary. It was for Dr Cooper to assess the risk to staff and pupils if the Applicant suffered an acute episode. We find that Dr Cooper carried out a fair and unbiased examination of the Applicant. We are satisfied that she arrived at a reasoned and reasonable assessment of whether he posed a potential risk to the school. We reject the argument of the Applicant that because he is presently carrying out a demanding job, although in a different environment, that it must follow that he would be no risk to the Respondent school. We consider that each case must turn on its own facts, and it follows that each employer must have regard to all of the circumstances of the job and working environment.

48. The Respondent has satisfied the Tribunal that to continue the Applicant's employment posed an incalculable risk to the staff and pupils of the school. We do not accept the Applicant's submission that the risk of the Applicant relapsing was so small as to be negligible, nor do we accept that he was no more of a risk that another employee who did not have his mental/medical condition but who might suffer a mental breakdown. We consider that an employee without any medical/mental conditions might pose a minor risk, but not an incalculable risk to others. We find that in the circumstances of this case and incalculable risk was more than minor or trivial, and we find that the reason for the dismissal was 'substantial' within the meaning of section 5(3). We conclude that the Respondent has satisfied the Tribunal that the dismissal of the Applicant was justified within the meaning of section 5(1)(b).

26. Additionally, paragraph 48 needs to be read in the context of the last sentence of paragraph 15 of the Extended Reasons which is quoted above but for convenience I repeat it here. It is as follows:

"If an acute episode did occur, then there was a possibility that the Applicant would be a risk to himself, and an incalculable risk to staff and pupils."

27. It appears from the Extended Reasons (and was obviously the case) that there were two stages, or elements, in the risk to be assessed, namely:

(a) the risk of an acute episode occurring, and

(b) the risk of Mr A acting on his fantasies if it did.

28. As appears from paragraph 48 of the Extended Reasons the Employment Tribunal reject the argument put on behalf of the Appellant that the risk of him relapsing was so small as to be negligible and that he was no more of a risk than another employee who did not have his mental/medical condition but who might suffer a mental breakdown.
29. That finding is not challenged and, indeed, in our judgment there was ample evidence before the Employment Tribunal upon which they could base this rejection.
30. On our reading of the Extended Reasons the reference in paragraph 48 thereof to "an incalculable risk to the staff and pupils of the school" is a reference to the second stage or element of the risk that we have referred to above, namely to the risk of Mr A acting on his fantasies if he relapsed and an acute episode occurred. However, in our judgment, if we are wrong as to this and the Employment Tribunal were there describing the totality of the risk this makes no difference.
31. We accept that none of the witnesses used the description "incalculable" in their written evidence and that description is not included in the Chairman's Notes. We shall assume in favour of the Appellant that none of the witnesses used that word. However, this does not mean that the Employment Tribunal were not entitled to make this finding. The task of the Employment Tribunal is to consider and weigh all the evidence. This is something that they plainly did and in our judgment, having regard to the totality of the evidence, there is ample written and oral evidence upon which they could base this finding.
32. We add that, in our judgment, this is so whether the evidence is assessed by reference to the information known to the Respondents at the time they decided to dismiss Mr A, or on the totality of the evidence before the Employment Tribunal.
33. Additionally we are unclear where this confined attack on the language used by the Employment Tribunal (ie their use of the word "incalculable") takes the Appellant. In our judgment in its context this word means "not capable of calculation or precise calculation". It seems to us that in isolation the use of this word by the Employment Tribunal is unobjectionable and in accordance with the evidence. In our judgment this has the consequence that, as recognised by Counsel for the Appellant in her skeleton argument and in her oral argument, there is an overlap in the Appellant's grounds of appeal. We repeat that we agree that this is so and that in our judgment this first argument has no independent validity.

The second argument – the decision to dismiss was based on insufficient information

34. This argument reflects the underlying position of the Appellant. This was (and as we understand it is) that the risk of Mr A relapsing was so small as to be negligible and that even if there was to be a relapse it was only a remote possibility that he would be a risk to staff and pupils.
35. The main thrust of this second argument was that in the particular circumstances of this case the Respondents did not have sufficient information to make a properly informed decision as to risk and therefore that the Employment Tribunal erred in deciding that the reason for the decision to dismiss was justified. This point therefore covers part of the common factual background to the abandoned amendment relating to the section 6 duty to make reasonable adjustments (see paragraph 5 above).
36. In advancing this argument Counsel for the Appellant posed the question:

"Was there hard evidence of a clear and unacceptable risk to safety?"

and submitted that there was not because Dr Cooper did not have the appropriate qualifications and experience to properly assess the risk and placed too much weight on the fact that Mr A was not taking medication and his fantasies concerning mass murders.

37. The Appellant asserts that the fact that he was not, and had not for some time been, taking drugs makes his case unusual and this should have prompted the Respondents (through Dr Cooper or otherwise) to seek specialist advice before deciding what to do. Alternatively (and as we understand it as a subsidiary argument) the Appellant asserts that the Respondents should have discussed Mr A's illness and treatment further with him before reaching their decision.
38. It follows that this argument involves an assertion by the Appellant that his case is unusual and thus, as we see it, inevitably a recognition of, and reliance upon, the fact that the approach the Appellant had taken to his treatment was not in accordance with medical orthodoxy. The Chairman's Notes of evidence make it clear that Dr Woolf (the Appellant's expert witness) confirmed that this was the case.
39. Given the Appellant's knowledge of his treatment and illness (see for example paragraph 13 of the Extended Reasons) and notwithstanding that we accept that it was for the Respondents to establish justification, we find this argument of the Appellant (and in particular his alternative and subsidiary argument) to be somewhat disingenuous having regard to the limited information he provided to the Respondents as to his medical history.
40. However this is a point that the Employment Tribunal have not taken into account in their Extended Reasons and it is one that we therefore leave to one side.
41. We accept that it was for the Respondents to establish that their decision to dismiss Mr A was justified, that their subjective view is not dispositive and they have to satisfy section 5(1)(a) by reference to evidence and on an objective basis. We also accept that the Respondents could not rely on assumptions or stereotypes to justify their decision to dismiss the Appellant.
42. In our judgment the Extended Reasons show that the Employment Tribunal took an approach that had proper regard to those points.
43. In our judgment the Employment Tribunal were perfectly entitled to conclude that the decision of Dr Cooper not to consult a specialist did not have the results that:

(a) at the time the Respondents made their decision to dismiss Mr A they did not have sufficient information to make a properly informed decision, and

(b) therefore the reason for that decision could not be justified.

Indeed, we would go further and record that on the evidence it seems to us that the Employment Tribunal were correct to conclude that the Respondents were sufficiently informed to make a properly informed decision to dismiss the Appellant.

44. In this context it is to be remembered that the Employment Tribunal find that Dr Cooper carried out a fair and unbiased examination of the Appellant. That is a finding of fact which is binding on us and which, in our view, is clearly established by the evidence. Further, having regard to the information provided by Dr Evans and the Appellant, we are of the view that there was no need for Dr Cooper to consult a specialist to confirm (as was confirmed before the Employment Tribunal) that the Appellant's medical history did not accord with medical orthodoxy and that this was a point that the Respondents were entitled to take into account when assessing risk without seeking further and more specialist medical opinion.
45. In argument the Appellant sought to rely on the fact that he was later employed a museum who referred him to two consultant psychiatrists. It was said that this is an example of what could be done in rare situations such as the one the Appellant alleged existed here. Naturally this occurred after his dismissal by the Respondents and in our judgment does not demonstrate either (i) that the Respondents should have referred the Appellant to a specialist, what the result would have been, or ought to have been, if they had done so, or (ii) that what the Respondents did was not justified having regard to the nature of his employment by the Respondents and the risks flowing from the Appellant's illness and medical history.
46. In our judgment the Employment Tribunal did not err in law by concluding (and indeed were correct to conclude) that in the circumstances of this case the Respondents were justified in reaching their decision on the basis of the views of Dr Cooper and the material before them. Further in out judgment those views and that material alone (and taken to together with the additional evidence before the Employment Tribunal) constitute evidence upon which the Employment Tribunal could consider whether the Respondents could show that their decision to dismiss the Appellant was justified and could therefore consider the relevant risks.

The third argument – the Employment Tribunal took the wrong approach in law to the issue of justification

47. This argument was understandably the main one advanced.
48. In argument this ground was to some extent elided with the first two arguments. We have already concluded that the first two arguments do not establish distinct errors of law. Additionally the first two arguments relate to, and overlap with, the third argument in the sense that they are (i) factors relied on by the Appellant to support his view that the Employment Tribunal reached the wrong conclusion on justification, and thus (ii) indicators that they took the wrong approach in law. However it should be remembered that the third argument was not that the decision of the Employment Tribunal was outside the range of permissible options on an application of the test or approach the Employment Tribunal applied. Rather the argument was that the Employment Tribunal applied the wrong test or approach in law to the issue of justification under section 5 (1)(b) and (3) DDA.
49. In advancing that argument the Appellant did not argue that the Employment Tribunal had erred in concluding that the Respondents were not under a section 6 duty to make adjustments or arrangements, for example to consult a specialist or otherwise (see again paragraph 5 above).
50. The relevant events, and the hearing before the Employment Tribunal, took place before the Human Rights Act 1998 came into force. However the Appellant sought to rely on s. 3 of that Act and alleged Convention rights before us to establish that the Employment Tribunal had erred in law in the manner asserted. Naturally this was a new argument that had not been advanced before the Employment Tribunal. During the hearing I indicated that I thought that the issue whether a new argument based on the Human Rights Act could be advance on appeal was an issue before a division of the Court of Appeal at that time. That case was JA Pye (Oxford) Ltd & Anr v Caroline Graham & Anr in which the Court of Appeal gave judgment on 6 February 2001. We have been provided with a transcript of that case by counsel for the Appellant.
51. Before considering the new argument based on the Human Rights Act 1998 we shall consider the issue of the test or approach to be applied to the issue of justification without having regard to that Act and then return to consider whether it makes any difference.
52. After the hearing before the Employment Tribunal this tribunal has decided Heinz Co Ltd v Kenrick [2000] IRLR 144. Paragraphs 13 to 20 of the judgment in that case are in the following terms:

13 (ii) Justification within s.5(1)(b)

Section 5(1), linked with s.4(2), represents a cause of action separate from s.5(2) - Clark v Novacold, supra, at paragraph 93. Once it is held, for the purposes of s.5(1), that the claimant has been treated 'less favourably' for a reason which relates to his disability then further consideration of the complaint within s.5(1) falls into one or other of two cases: cases in which there is no duty on the employer to make adjustments under s.6 and cases where there is such a duty.

14 To take first the case where there is no s.6 duty, it there falls to the employer (the onus is plainly put upon him) to show that such treatment 'is justified' - s.5(1)(b).

15 To justify a state of things is to show or maintain the justice or reasonableness of it; to adduce adequate grounds for it; to show or maintain sufficient reason for doing that which one is called to answer for - see the Oxford English Dictionary. For a practical understanding of the yardstick by which the adequacy, sufficiency, or justice of the reasons given are to be judged one needs some amplification and that is found in s.5(3) which provides:

'(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.'

16 During the hearing the President flirted with the idea that s.5(3) provided only a necessary rather than a sufficient condition for justification, meaning that a tribunal could not hold there to be justification unless the reason for the treatment was 'both material to the circumstances of the particular case and substantial' but that even if the reason satisfied that test there was not necessary justification. Given that the Code of Practice at Paragraph. 4.6, speaking of 'both material to the circumstances of the particular case and substantial' says that that means:

'...that the reason has to relate to the individual circumstances in question and not just be trivial or minor' it might be thought that such a very low threshold for justification was itself indicative of s.5(3) providing, surely, only a necessary condition rather than a sufficient one. Were the condition to be merely necessary, tribunals would have been able, as many would applaud, to adopt a broad approach to justification based on their views, as 'the industrial jury', of the substantial merits of the case rather as is required of them under s.98(4). However, we must recognise that s.5(3) provides that the treatment 'is justified' if the condition is met, not that it 'can' or 'may' be. It thus seems, in the category we are dealing with, that the condition stipulated in s.5(3) is both necessary and sufficient. As the Code has to be taken into account - s.53(6) or 53A(8) - then whatever one might think about the lowness of such a threshold, (lower, it might be thought, than the word 'substantial' would usually indicate), if the reason for the treatment relates to the individual circumstances in question and is not just trivial or minor then justification has to be held to exist in the category of case which we are dealing with, namely that in which no s.6 duty falls upon the employer. This is not a conclusion we reach with enthusiasm but as the language of the domestic statute is clear (and no reference has been made to Community law) the remedy for the lowness of the threshold, if any is required, lies in the hands of the legislature not of the courts.

17 The other category where s5(1) is being considered but where there is also a s.6 duty on the employer, requires the satisfaction of a further condition before justification within s.5(1)(b) can be held to exist. Section 5(5) provides:

'(5) If in a case falling within subsection (1), the employer is under a s.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 s.6 duty'

18 The s.5(3) condition is still necessary in this category but it is now not sufficient as the further requirement of s.5(5) also needs to be satisfied.

19 As for the reference in s.5(3) to 'material to the circumstances of the particular case', the EAT has held that the relevant circumstances include the circumstances of both the employer and the employee - see Baynton v Saurus General Engineers Ltd [1999] IRLR 604. That, we respectfully agree, is plainly right and at least one of the examples given in the Code so suggests. It is of a person who has psoriasis, a skin condition, being rejected for a job modelling cosmetics on some part of his body which was thus disfigured. The example plainly takes account of the particular circumstances of the employer - his need to have an attractive model for his product - as making the applicant's appearance incompatible with the purpose of the work on offer and hence justifying his rejection.

20 (iii) A balancing of interests

In Baynton, supra, the EAT preferred a submission that in applying a test of justification under s.5(3) a tribunal had to carry out a balancing exercise between the interests of the disabled employee and the interests of the employer. We have already noted that the 'circumstances of the particular case' referred to in s.5(3) can include the employer's circumstances. Whilst we would not preclude some balancing exercise, the comparatively limited requirements of s.5(3) are to be borne in mind. It does not require a wider survey of what is reasonable having regard to specific features such as is found in s.6(1) and s.6(4). Under s.5(3) all that is material is whether the reason for the treatment is 'both material to the circumstances of the particular case and substantial' which, under the Code, as we have cited, means that the reason has to relate to the individual circumstances in question and not just be trivial or minor.

53. The provisions of the Code of Practice referred to in Heinz case (and that case itself) caused the Appellant considerable and in our judgment insurmountable difficulty in advancing the argument that the Employment Tribunal had applied too low a threshold for justification and thus the wrong test or approach if his argument under the Human Rights Act is left out of account. This is so notwithstanding (and having regard to):

(a) the point made in Baynton v Saurus General Engineers Ltd [1999] IRLR 604 which is referred to and accepted in the Heinz case (at paragraphs 19 and 20) that the circumstances of a case include those of both the employer and the employee. We agree that this is right, and

(b) the comments that we make on the Heinz case and the DDA in paragraphs 54 to 59 below.

It follows that if the argument under the Human rights Act is left out of account we reject the third argument advanced on behalf of the Appellant.

54. In the Heinz case no reference was made to, or reliance placed on, Community law or Convention rights and no reference was made to other cases in which the word "substantial" has been construed in its statutory context (see for example Palser v Grinling [1948] AC 291 and R v MMC ex parte SYT [1993] 1 WLR 23) which show that it is a word that has a wide range of meaning in ordinary usage and takes colour and meaning from its surroundings . Additionally we comment that it is well established that generally in construing words used in a statute which in ordinary usage have a wide range of meaning (such as "substantial" "trivial" or "minor") examples of their usage by reference to dictionary definitions are unlikely to be helpful in defining the word or in indicating the sense in which it is used (see for example Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163 at 1171 G/H). Here however, as is pointed out in the Heinz case, paragraph 4.6 of the Code of Practice indicates the sense in which the word "substantial" is used in s. 5(3) DDA (i.e. not just trivial or minor) and this Tribunal (through the President) commented that this was a very low threshold. Naturally we accept that that the use of the word "substantial" in the sense indicated by the Code of Practice is not equivalent to its use in the sense equivalent to "considerable, solid or big" (see Palser v Grinling at page 317) and introduces a much lower threshold than that. In our view the use of the word "substantial" in that sense is more akin to the approach to, and interpretation of, the word in the SYT case (i.e. worthy of consideration for the purposes of the Act – see page 29 A/D), although we accept that as in that case that description does not place the word in its range of meaning.
55. The words "trivial" and "minor" used in the Code of Practice are also words that are inherently imprecise and which have a range of meaning. It follows that as with the statutory word "substantial" their application in a given case should be considered having regard to the circumstances of that case. Adopting the guidance of Lord Mustill in the SYT case (at page 29 A/D) we would be wary of, and with respect do not adopt, the description used in the Heinz case that the threshold is "very low" because we think that in the minds of employers, employees and tribunals this could ascribe a spurious degree of precision or (and more likely) lead to a too restrictive approach being adopted. That is not to say that we do not fully accept the view expressed in the Heinz case that the Code of Practice shows that the meaning of "substantial" in the context of s. 5(3) DDA is at the low end of the scale of its range of meaning.
56. We accept the conclusion expressed in the Heinz case that s. 5(3) DDA provides a sufficient condition for justification and thus that in a case like this one (and the Heinz case) where it is the only relevant sub-section and it is satisfied there is justification. However this does not in our view mean that:

(i) applying the description of the word "substantial" contained in the Code of Practice, and

(ii) having regard to the examples given therein which, in our judgment, show the need to retain flexibility in the consideration of the question whether in the circumstances of the given case the sub-section is satisfied because the reason is "substantial" and thus "not just trivial or minor",

a Tribunal should not take a common sense approach to the issue of justification which has regard to the purpose of the DDA (see again Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163 at 1171 G/H).

57. When s. 5(3) DDA is being considered in isolation one of the circumstances of the case is that the employer is not under a s. 6 duty. If, as is recognised in the Heinz case, the employer is under a s. 6 duty different and further considerations, and s. 5(5) DDA, apply.
58. We note, and comment, that s. 6(1) DDA refers to the employee being placed at a "substantial disadvantage in comparison with persons who are not disabled" and that this is a trigger to the s. 6 duty to take reasonable steps. Paragraph 4.12 of the Code of Practice does not expressly refer to the meaning to be given to "substantial" in s. 6(1) DDA. However in our judgment the description of the word "substantial" in paragraph 4.6 of the Code of Practice should be applied to s. 6(1) as well as to s. 5(3) DDA and this view is supported when the examples in paragraphs 4.6 and 4.12 are compared. As is pointed out in the Heinz case the existence of a s. 6 duty (and thus the application of s. 5(5) DDA on justification) introduces a wider survey of what is reasonable having regard amongst other things to the interests and positions of both employer and employee.
59. It seems to us that that the combination of ss. 6(1) and 5(5) (when applied alone and with s. 5(3)) introduces a balance and an overall approach under the DDA which goes a long way to removing the lack of enthusiasm expressed by this Tribunal in respect of the conclusion they reached when considering s. 5(3) DDA in isolation.
60. The Appellant's argument based on the Human Rights Act 1998 was that contrary to the view taken in the Heinz case, which did not have regard to Convention rights, section 5(3) DDA should be construed as setting a relatively high threshold for justification. As we have explained in the context of this appeal this was an argument that related to s. 5(3) alone.
61. The Human Rights Act was therefore relied on to found an argument that although on the interpretation and application of the DDA at the time of the relevant events (and the issue of proceedings and the hearing before the Employment Tribunal) the Respondents did not act (and should not on a proper construction of the DDA have been held to have acted) unlawfully because they could show that their decision was justified, the Human Rights Act has altered the position, and has had the result that we can set aside the decision of the Employment Tribunal and either:

(a) ourselves decide that the dismissal which was lawful on the true construction and application of the DDA at the time it took place is (and was) unlawful, or

(b) remit the case to an Employment Tribunal with the prospect that they would so find.

It seems to me that this would be giving the Human Rights Act a retrospective effect that is contrary to the presumption against retrospectivity.

62. Notwithstanding the Pye case, and for essentially the reasons given by a division of this Tribunal chaired by me in Gibson v British Gas Energy Centres Ltd (EAT/668/98) I am of the view that:

(a) in this case the presumption against retrospectivity and the terms of the Human Rights Act preclude the Appellant from relying on that Act in this case, and

(b) if I am wrong about that this Tribunal should not exercise its discretion to permit the Appellant to raise new arguments based on the Human Rights Act on this appeal.

63. The Gibson case was decided before the Court of Appeal gave judgment in the Pye case. That case related to s. 15 Limitation Act 1980 which precludes a person bringing an action to recover land after the expiration of 12 years from the date on which the cause of action accrued. It was therefore concerned with a limitation point in respect of proceedings begun, and heard by the judge at first instance, before the Human Rights Act came into force. It was argued that after the coming into force of the Human Rights Act the principle contained in s. 3 and Article 1 of the first Protocol could be applied. At paragraph 52 Mummery LJ said:

My conclusions on the section 3 point, stated briefly for the reasons already indicated, are that:

1. The principle of interpretation of primary and secondary legislation contained in section 3 of the 1998 Act can be relied on in a appeal which is heard after the Act came into force, even though the appal is against an order made by the court below before the Act came into force.

and at paragraph 57 in respect of s. 3 Human Rights Act Keene LJ said:

However there is an issue between the parties as to whether section 3(1) of that Act, which requires that "so far as it is possible to do so" legislation must be read and given effect in a way that is compatible with the Convention rights, applies at all to the circumstances of this case. For my part, I read that sub section as applying to all cases coming before the courts on or after 2 October 2000, irrespective of when the activities which form the subject matter of those cases took place. Section 3(1) imposes a clear obligation on the courts in respect of its interpretation of legislation. That applies irrespective of the date of the legislation (see section 3(2)(a)) and I can see no reason to adopt one interpretation of a statute from 2 October 2000 onwards in a case involving activities before that date and a different interpretation where the activities took place after that date.

Those passages provide support for the view that contrary to the decision in the Gibson case the Appellant can, and should be allowed to, rely on s. 3 Human Rights Act.

64. We did not have the benefit of detailed argument on the application of s. 3 Human Rights Act and heard the Appellant's arguments based on that section. In addition argument before us could not have taken account of the decision the Pye case. It is apparent from the representation of the parties in the Pye case that the Court of Appeal would have had the benefit of detailed argument on this point. However the Pye case was dealing with a limitation point and thus with:

(a) the presumption against retrospectivity generally, and

(b) whether that presumption meant that it was not possible to read and give effect to legislation in a way that is compatible with Convention rights if to do so would make an act retrospectively unlawful,

against a different background to that which exists here.

65. To my mind the reasoning in the judgments in the Pye case do not deal with the points referred to in paragraph 64 (a) and in particular 64 point (b) in any detail in the context either of interpreting legislation, or of exercising a discretion to introduce arguments based on the Human Rights Act on appeal. It is for this reason that without the benefit of full argument I remain of the view expressed in paragraph 62 above.
66. However we have decided that (i) it would not be appropriate for us to ask for further argument on the point whether the Appellant can rely on s. 3 Human Rights Act, and (ii) we should consider and determine Mr A's appeal on the basis (or assumption) that he can advance and rely on his arguments based on s. 3 the Human Rights Act. This is because we heard those arguments and announced our decision at the end of the hearing having regard to them on the assumptions (i) that the Pye case would (as occurred), or might, provide support for the view that the Appellant could rely on those arguments on appeal, and (ii) for that, or other reasons, the view I had reached in the Gibson case was wrong.
67. As appears below in our judgment those arguments do not provide a basis for this appeal.

The arguments based on the Human Rights Act 1998

68. The Convention rights relied on by the Appellant were those contained in Article 8 (the right to respect for private and family life) and Article 1 of the First Protocol (the right to peaceful enjoyment of one's possessions) taken together with Article 14 (the right not to be discriminated against in the enjoyment of one's Convention rights). It was pointed out that the Respondents are a public body.
69. We comment on the arguments put as follows:

(a) It was argued by reference to Niemitz v Germany (1993) 16 EHRR 97 in particular at paragraph 29 that Article 8 was sufficiently broad to encompass a right of Mr A to earn a living and to develop relationships at work and therefore that the decision to terminate Mr A's employment was an interference with his Article 8 rights. We do not agree. The Niemitz case was dealing with a very different type of situation, namely a search of a lawyer's home and the general comments of the ECHR should be read in this context. In the circumstances of this case the right Mr A is asserting is effectively a right to be employed rather than a right not to be dismissed this is because the offer pursuant to which he worked for a very short time was conditional. In our judgment the Appellant is seeking to stretch the general passage he relies on in the Neimitz case too far and a right for him to be employed, or not to have a contract of employment terminated (and thus effectively a contractual right, or a right based on a contract) are both outside the "right to respect for his private life".

(b) It was argued in particular by reference to Tre Traktorer v Sweden (1989) 13 EHRR 3099 and Van Marle v Netherlands (1986) 8 EHRR 483 that Mr A's employment was a possession and thus an interest within Article 1 of the First Protocol. Again those cases are dealing with different subject matters and in our judgment the Appellant is seeking to stretch the passages he relies on in them too far and a right for him to be employed, or not to have a contract of employment terminated (and thus a contractual right, or a right based on a contract) are both outside the entitlement to peaceful enjoyment of possessions conferred by Article 1.

(c) In support of the arguments in both (a) and (b) we were referred by way of analogy to the Irish Constitution Article 40.3.1-2 and Cafolla v O'Malley [1985] IR 486 in particular at 493 and Hand v Dublin Corporation [1991] IR 409 in particular at 419 but in our judgment authorities on the Irish Constitution as to the nature and extent of the personal and property rights referred to therein do not assist greatly and do not cause us to change our views as expressed in (a) and (b) above

(d) We accept the submissions made on behalf of the Appellant that disability is a relevant category for the purposes of Article 14 (see Botta v Italy (1998) 28 EHRR 241), that measures to deprive individuals of possessions or property within Article 1 of the First Protocol must be appropriate for achieving their aims and not disproportionate (see James v U.K. (1986) 8 EHRR 123 in particular para. 50) and that interference with a right protected by Article 8 has to satisfy Article 8.2 and be proportionate (see the Niemetz case in particular at paras 69/70 and Young James & Webster v U.K. (1981) 4 EHRR 38 in particular at para. 63).

(e) If our conclusions in sub-paragraphs (a) and (b) are wrong we consider that recognising and applying the points made in sub-paragraph (d) a refusal to offer employment or a termination of a contract of employment that was "justified" for the purposes of, and was thus not made unlawful by, the DDA applying the approach referred to in paragraphs 51 to 59 above would not be breach of a Convention right conferred by Article 8 or Article 1 of the First Protocol because the DDA satisfies Article 8.2 and the qualification to Article 1 by taking a balanced approach to making it unlawful to discriminate against disabled persons. In our judgment this is the case when a s. 6 duty arises under the DDA and when it does not (see again paragraphs 51 to 59 above).

70. We therefore reject the Appellant's argument based on the Human Rights Act 1998 that to render it compatible to Convention rights s. 5(3) DDA should be construed on the basis that the Code of Practice (which a Tribunal is directed to take into account – see s. 53(6) and 53A(8) DDA) should be ignored or modified and the approach to determining whether the reason for the relevant action was "substantial" should be one that interpreted and applied the word "substantial" in the sense of "considerable or big" or higher in the scale of its range of meaning than when it is used in the sense of "not just trivial or minor".
71. We add that if this argument of the Appellant was correct it would cause problems in the interpretation and application of the trigger provision in s. 6(1) DDA which as we have pointed out also uses the word "substantial".

Conclusion on the third argument of the Appellant

72. We reject this argument.

General comment

73. For completeness we add that although we have sympathy for Mr A having regard to the facts found by the Employment Tribunal we are of the view that if either (i) he had advanced and we had permitted him to advance an argument based on s. 6 DDA, or (ii) we had accepted his argument that the Employment Tribunal applied too low a threshold his claim should nonetheless have been dismissed. Our main reason for this is the combination of (i) the existence of the risks (or the elements of the risk) referred to in paragraph 27 above by reason of Mr A's illness, (ii) the point that Mr A's treatment did not accord with medical orthodoxy and (iii) the enormity of the harm that would occur in a school if Mr A was to have a relapse and act on his fantasies.

Overall conclusion

74. As we announced at the end of the hearing this appeal is dismissed.