United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS CHRYSTELLA SPIRE (of Counsel) Instructed by: Messrs Levenes Solicitors Grove House 140-142 The Grove Stratford London E15 1NS
For the Respondents	MR COLM NUGENT (of Counsel) Instructed by: London Borough of Newham Legal Services Newham Town Hall East Ham London E6 2RP


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from a unanimous Decision of an Employment Tribunal held at Stratford, London, in October 2001, who in a Decision promulgated on 10 January 2002, decided that:

(i) the Appellant was not unlawfully discriminated against on the grounds of disability;

(ii) the Appellant was fairly dismissed;

(iii) the Appellant was not victimised because he had presented a race discrimination complaint to the Employment Tribunals.

Leave for this hearing was granted at a preliminary hearing on 22 July 2002 (Mr Recorder Langstaff QC presiding) only in relation to the disability discrimination issue.

2. The Appellant is a management accountant who had been working for the Respondents since January 1989. His first position was in the Environment Service Accountancy Group, but in August 1990 he was promoted to Senior Finance Officer Grade SO1. In October 1992 he was transferred to the Leisure Policy and Resources Accountancy Group. In 1996 he was promoted to Finance Officer Grade SO2. In October 1997 the Appellant was transferred to the Social Services and Leisure Accountancy Group.
3. In May 1999 during a meeting with the Appellant's line manager, Mr Vajah and the Head of Financial Support Services, the Appellant was told that his job was to be deleted and that his job was to be carried out by the Principal Finance Officer. He was offered a permanent position in the Housing Accountancy Group or one of three temporary positions. The Appellant felt that the proposed re-organisation fundamentally prejudiced his career path. It was not disputed that the Appellant was very upset by the proposed re-organisation.
4. On 12 May 1999, a report entitled "Restructuring of the Financial Services Division" was published incorporating the deletion of the Appellant's job, moreover he was the only member of the Financial Services team adversely affected by the proposals. The proposals were put on hold insofar as they affected the Leisure Services Division, since the newly appointed Director of the Division wanted to hold his own review. However, the Appellant was already profoundly affected by the proposals and in July 1999, he commenced race discrimination proceedings against the Respondents in the Employment Tribunal.
5. In July 1999 the Appellant went absent from work for reasons of ill-health. He was suffering from depression and anxiety. He stopped work on 16 July and he never returned to work with the Respondents. Over the following nine months the Respondents made attempts to discover the true extent of the Appellant's illness, both through its own members of staff and by suggesting appointments with the Occupational Health Physician, but its attempts were resisted by the Appellant who effectively refused to communicate with the Respondents other than by a third party, Mr Piperdy, or by post. The Respondents' offer to arrange and pay for counselling were effectively rejected. On 9 March 2000 a letter was sent to the Appellant stating that unless the Respondents were provided with a medical report by the Appellant's GP by 20 March, there would be a management hearing to consider the Appellant's position. The management hearing to consider the Appellant's position was arranged for 6 April, but subsequently moved to 17 April.
6. Between 21 and 23 March 2000 the Appellant attended and gave evidence at the Employment Tribunal in Stratford in relation to his complaints of race discrimination and/or victimisation. In the course of that hearing the Appellant gave evidence to the effect:

"I do not feel that I can ever return to work as a result of the way in which I have been treated by the Respondents and that my career is finished."

On 30 March the Respondents' doctor received the General Practitioner's report dated 20  March, which referred to continuing ongoing treatment, more recently from a specialist and that it would be likely therefore that the ill-health would continue for a few months; eventually it would be likely that he would be well enough to return.

7. On 17 April neither the Appellant nor Mr Piperdy attended the full management hearing chaired by Mr Hollands, who after considering all the documents and submissions before him, dismissed the Appellant because, on the evidence:

(a) the Appellant had been absent for a period in excess of eight months;

(b) there was no foreseeable improvement in order to enable a return to work in the near future;

(c) there had been sufficient warnings;

(d) there were no feasible redeployment options after an examination of what might be available during the context of the working week;

(e) there had been very little communication or co-operation from the Appellant;

(f) the General Practitioner's letter does not indicate the prospect of a return to work within a reasonably practicable timeframe;

(g) there had been difficulty in providing cover and secondments had to take place in order to provide a sufficient service.

The Appellant initially appealed against the decision but withdrew the appeal in favour of proceedings before the Employment Tribunal.

8. At the Tribunal hearing, both sides were represented by experienced Counsel with evidence lasting four days including doctors called by both parties - Dr Brener, on behalf of the Appellant and Dr Jacobson, on behalf of the Respondents. Having reviewed the evidence in detail and set out their findings of fact over fifty two paragraphs, and also considered the relevant statutes and case law, the Tribunal dealt with the seven issues that had been identified by both Counsel in the following manner.

(1) They held that the Appellant was not suffering from a disability within the meaning of section 1 of the Disability Discrimination Act 1995.

(2) The Respondents did not know and were not provided with sufficient information to know whether or not the Appellant was disabled.

(3) The dismissal was not an act of disability discrimination, even if the Appellant might be regarded as disabled for the purposes of the Act.

(4) The Respondents were justified in dismissing the Appellant pursuant to section 5 of the Disability Discrimination Act.

(5) The Respondents had not failed to make reasonable adjustments, pursuant to sections 5 and 6 of the Disability Discrimination Act.

(6) The dismissal was not in part an act of victimisation against the Appellant for having brought racial discrimination proceedings against the Respondents.

(7) The Respondents acted reasonably, pursuant to section 98 of the Employment Rights Act 1996 in dismissing for incapacity.

Whilst this appeal has covered points (1) to (5) above, the focus of the submissions from both Counsel has been on the first issue, namely whether the Appellant suffered from a disability within the meaning of section 1 of the Disability Discrimination Act 1995.

The Law

9. By section 1(1) of the Disability Discrimination Act 1995:

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

By 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 was 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 be justified even if he had complied with the section 6 duty"

Section 6 of the Disability Discrimination Act 1995 deals with the duty of the employer to make adjustments at work to prevent a disabled person being at a substantial disadvantage. By section 6(6)

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

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

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

10. Schedule 1 of the Act sets out provisions supplementing the definition of disability in section 1, the relevant parts being as follows:

"1 (1) "Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.

2. (1) The effect of an impairment is a long-term effect if -

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months;

4.(1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following -

(a) mobility;

(b) manual dexterity;

(c) physical co-ordination;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.

6(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

(2) In sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid."

11. In the "Guidance on matters to be taken into account in determining questions relating to the question of disability", (SI 196/1996) paragraph 14 of part 1 states:

"A clinically well recognised illness is a mental illness which is recognised by a respected body of medical opinion. It is very likely that this would include those specifically mentioned in publications such as the World Health Organisation's International Classification of Diseases."

By part 2 of the guidance:

"A1 The requirement that an adverse effect be substantial reflects the general understanding of "disability" as a limitation going beyond the normal differences in ability which may exist among people. A "substantial" effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A "substantial" effect is one which is more than "minor" or "trivial".

A4. The Act provides that an impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities only if it affects that person in one (or more) of the respects listed in paragraph C4 (Sch 1, para 4). An impairment might not have a substantial adverse effect on a person in any one of these respects, but its effects in more than one of these respects taken together could result in a substantial adverse effect on the person's ability to carry out normal day-to-day activities.

B2 It is not necessary for the effect to be the same throughout the relevant period. It may change, as where activities which are initially very difficult become possible to a much greater extent. The main adverse effect might even disappear - or it might disappear temporarily - while one or other effects on ability to carry out normal day-to-day activities continue or develop. Provided the impairment continues to have, or is likely to have, such an effect throughout the period, there is a long-term effect.

C5 In many cases an impairment will adversely affect the person's ability to carry out a range of normal day-to-day activities and it will be obvious that the overall adverse effect is substantial or the effect on at least one normal day-to-day activity is substantial. In such a case it is unnecessary to consider precisely how the person is affected in each of the respects listed in paragraph C4. For example, a person with a clinically well-recognised mental illness may experience an adverse effect on concentration which prevents a person from remembering why he or she is going somewhere; the person would not also have to demonstrate that there was an effect on say, speech. A person with an impairment which has an adverse effect on sight might be unable to go shopping unassisted; he or she would not also have to demonstrate that there was an effect on, say, mobility.

C6 Many impairments will, by their nature, adversely affect a person directly in one of the respects listed in C4. An impairment may also indirectly affect a person in one or more of these respects, and this should be taken into account when assessing whether the impairment falls within the definition. For example -

Medical advice: where a person has been professionally advised to change, limit or refrain from normal day-to-day activity on account of an impairment or only do it in a certain way or under certain conditions;

Pain or fatigue; where an impairment causes pain or fatigue in performing normal day-to-day activities, so the person may have the capacity to do something but suffer pain in doing so; or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time.

C7 Where a person has a mental illness such as depression account should be taken of whether, although that person has the physical ability to perform a task, he or she is, in practice, unable to sustain an activity over a reasonable period.

12. In the Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability, paragraph 4.34 deals with the issue of justification in not making adjustments as follows:

"The Act says that it is discrimination if an employer fails to take a step which it is reasonable for him to have to take, and he cannot justify that failure (s.2). However, if it is unreasonable (under s.6) for an employer to have to make any, or any particular adjustment, he would not then also have to justify (under s.5) not doing so. Failure to comply with the duty of reasonable adjustment can only be justified if the reason for the failure is material to the circumstances of the particular case and substantial."

13. Paragraph 6.21 of the Code deals with the issue of justification on termination of employment as follows:

"Dismissal - including compulsory early retirement - of a disabled person for a reason relating to the disability would need to be justified and the reason for it would have to be one which could not be removed by any reasonable adjustment.

It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not practicable or otherwise not reasonable for the employer to have to make ….."

14. In dealing with the interrelation between section 5 and section 6 this Court in Baynton -v- Saurus Ltd [2000] ICR 375 (Judge Peter Clark presiding) gave the following guidance at page 384A:

"The statutory sequence for establishing justification in a section 5(1)(a) claim is as follows. (1) The disabled applicant shows less favourable treatment, dismissal, under section 1(1)(a) and section 4(2)(d). (2) The employer shows that that treatment - the dismissal - is justified if: (i) the reason for the dismissal is both material to the circumstances of the particular case and substantial (section 5(3) ), unless (ii) the employer is under a section 6 duty in relation to the applicant but fails without justification to comply with that duty, subject to the treatment being justified even if he had complied with the section 6 duty.

Thus, far from the question of a section 6 duty being irrelevant to justification under section 5(1)(b), it will be necessary for the employer to show, for the purpose of establishing the requirements of section 5(3), that the reason for dismissal was material to the circumstances of the case and substantial and that he has not, without justification, failed to comply with any duty under section 6."

Tribunal Decision

15. The Tribunal dealt with their conclusions regarding disability from paragraph 9 onwards in the following way:

"9…….suffered symptoms consistent with moderate to mild depression, including loss of memory and concentration. However, other factors were at work which contributed to his condition, namely the loss of his father and severe pressure which was being generated by the breakdown of marital life. This was especially significant in respect of an Applicant who informed Dr Jacobson that his family life was a primary concern before that of his working environment. There is no evidence to indicate that Mr Chaudhery suffered severe symptoms and, despite the length of time involved, he never received any form of psychiatric treatment. Instead, he received some counselling and relatively modest levels of fluoxetin at 20 mg per dose. It is quite clear from his own evidence and that of his witnesses and the fact that he was able to attend the Tribunal to give evidence, that by March 2000 he was considerably better.

10. This Tribunal prefers the view of Dr Jacobson that there was at times a fluctuating amount of mild to moderate illness. The effect of this illness on Mr Chaudhery was not severe and it was quite clear as the evidence evolved that some of the symptoms referred to were exaggerated. ……..

11 The Tribunal also finds it significant that, within the body of the submissions sent to the formal management hearing, there is nothing of a substantial nature placed before Mr Hollands to put him on notice that this is an Applicant who is suffering from a disability that affects his ability to carry out normal day-to-day tasks.

12 Furthermore, it is revealing that when he is the subject of a home visit, he does not seek to lay any emphasis upon an illness that has been created or triggered by a work-related situation and it would appear that by the time of his previous Employment Tribunal case he had formed the settled intention not to work for the Respondents again ……

14. In coming to these conclusions, the Tribunal has paid particular attention to paragraphs 6 and 7 of the guidance. The Tribunal does not seek to underestimate the effect of depressive illness, nor to ignore the fact that impairment might make the activity more than usually fatiguing. However, it has been difficult to perceive from the medical and other evidence whether at its height the Applicant's illness really reached anything other than medium levels of intensity for short intermittent periods since July 1999 which had significantly subsided and tailed off into mild intensity by March 2000. This Tribunal, on the evidence, takes the view that the illness cannot in all probability be regarded as long-term within the meaning of the Act. Certainly the Applicant has failed to establish according to the civil burden of proof that he was disabled for statutory purposes relating to the 1995 Act."

The Appellant before us complained that within these paragraphs the Tribunal failed to deal properly with the four requirements which have to be satisfied in order that a Tribunal can determine that a person has a disability within the meaning of the Act. In Goodwin -v- Patent Office [1999] ICR 302 this Court (Mr Justice Morison, President) said the following:

"3. Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions. (1) The impairment condition. Does the applicant have an impairment which is either mental or physical? (2) The adverse effect condition. Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect? (3) The substantial condition. Is the adverse effect (upon the applicant's ability) substantial? (4) The long-term condition. Is the adverse effect (upon the applicant's ability) long term?

Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregration should not take one's eye off the whole picture."

16. The first complaint raised is that the Tribunal considered the effects of the Appellant's illness at the date of the hearing (October 2001) rather than the date of the alleged discrimination i.e April 2000. It is well settled that the material time at which to assess disability is at the time of the alleged discriminatory act - see Cruickshank -v- VAW Motorcars Ltd [2002] IRLR 24. We cannot agree with these submissions. From the passages in the Tribunal's Decision, to which we have already made reference, there was clear emphasis on the Appellant's condition as at early 2000. The period between 1999 and 2000 was also the focus of the two joint medical reports to which both we and the Tribunal were referred during the hearing, and it is clear from the Tribunal's findings that they had those reports very much in mind.
17. The second complaint is that the Tribunal, in preferring certain parts of Dr Jacobson's evidence, have ignored those parts of the agreed evidence that would support a finding that the Appellant was indeed disabled under the Act and, further, within their findings have concentrated on the intensity of the illness rather than considering its long-term effects. The agreed written report contained the following paragraph:

"2 With regard to diagnosis: We agree that Mr Chaudhery developed a depressive illness, recorded by his GP who gave him sick certificates for depression and anxiety from 17.7.99 through until at least the time of Dr Jacobson's assessment. Dr Brener considers that he developed a major depressive illness, equivalent to moderate depressive episode F32.1 in ICD-10 (1992). Dr Jacobson considers that he developed a fluctuating depressive illness varying between the level of moderate depressive illness and above that of a mild depressive episode, as defined in the International Classification of Diseases, ICD-10 (1992). Dr Jacobson notes that the course of depression has been difficult to define and that at times while on antidepressants, the Claimant's level of depression probably fell below the threshold of a recognised psychiatric disorder, only to rise again, particularly after marital breakdown in April 2000, wife leaving him to go to India in February 2001, the period around his father's coronary artery bypass graft some time in 2000, and after dismissal from work on 26.4.00."

The doctors prepared a further short handwritten revised report, having discussed matters between them when they both attended the Tribunal hearing. Dr Brener's view in that further report was that the Appellant's activities of daily living had been impaired during his depressive illness from April 1999 onwards, above a trivial level. Dr Jacobson had, however, indicated that his view was that the activities of daily living had been impaired on a fluctuating basis between above trivial for a majority of the time to below trivial for a minority of the time, from April 1999 for more than one year. Both doctors also agreed that in the period between April 1999 and May 2000 it was possible that the Appellant could have attended work-related meetings, depending on his mental state and degree of support.

18. The Tribunal indicated, having no doubt read these reports and also heard from both doctors in evidence, that they preferred the view of Dr Jacobson. That opinion was extremely relevant in that he referred to the impairment for part of the time being "below trivial". The word "trivial" is used in paragraph A1 of the guidance, to which we have already made reference, as a contrast to a substantial effect. When the Tribunal, in paragraph 14, used the phrase "intensity" it is clear to us that they were seeking to contrast the difference between "substantial" and "trivial" and had the guidance very much in mind, and we can see no substance in this complaint.
19. The next complaint in relation to the Tribunal's findings concerns the Tribunal's findings in paragraph 9 which referred to the other factors which they held contributed to the Appellant's condition. The Appellant contends that, within the decision on disability, the Tribunal should not be concerned as to the causes of the illness but rather the effect. However, we can see nothing wrong in the Tribunal referring to these factors within the process of their coming to a conclusion as to whether or not the impairment was long-term i.e if the Appellant's difficulties were being caused by short-term factors that could affect the duration of the illness and, indeed, as the Tribunal found, by March 2000 the Appellant was considerably better.
20. The next complaint was that the Tribunal, having noted that the Appellant had been prescribed "modest levels of fluoxetin" and further noting that by March 2000 he was considerably better, had failed to draw any conclusions in relation to the effect of the medication on that improvement - the so-called "deduced effect". By paragraph 6(1) of Schedule 1 of the Act, the Court has to consider the effect of the impairment on the basis that no medication was being taken. However, as Mr Nugent for the Respondents submits, it was for the Appellant to adduce medical evidence to prove that without the medical treatment he was receiving he would suffer that disability - see Woodrup -v- London Borough of Southwark [2003] IRLR 111. He further submits that in this case the appellant failed to adduce the necessary evidence, and we agree with that submission.
21. The final submission on the issue of disability is that the Tribunal failed to make any findings as to the ability of the Appellant to carry out normal day-to-day activities during the relevant period. Again, we do not agree with that submission. The Tribunal, in preferring Dr Jacobson's evidence clearly had in mind the passage to which we have already made reference where he dealt specifically with the effect of the illness on the Appellant's activities of daily living and categorised those effects as below trivial for some of the period from April 1999 onwards. The Tribunal also concluded from the evidence that some of the symptoms referred to were exaggerated. They noted that there was nothing of a substantial nature placed before Mr Hollands at the management hearing in relation to the Appellant's ability to carry out normal day-to-day tasks and they had already noted that he was well enough to attend the Tribunal to given evidence in early 2000. For these reasons we would reject this submission.
22. Accordingly we can find no fault with the Tribunal's Decision in relation to disability. That would be sufficient to dispose of this appeal, but we will deal briefly with issues raised on the subsidiary findings of the Tribunal. The next issue concerned whether or not the Respondents knew that the Appellant was disabled. The Tribunal made specific findings that the Appellant had taken a substantial number of steps to ensure that the Respondents were never to know the extent of his illness and therefore his potential disability (see paragraph 15), and that the disability had been "masked" from the Respondents "as a result of the deliberate conduct of the employee" (see paragraph 16). The Appellant submits that the Tribunal had made findings which indicated that the Respondents certainly knew of some, if not all, of that Appellant's symptoms. Ms Spire, for the Appellant, referred us to a decision of this Court in

H J Heinz Co Ltd -v- Kenrick [2000] ICR 491 (Mr Justice Lindsay) where, at page 500B, in dealing with the employers' knowledge of an employee's disability, in relation to a claim under section 5(1) he said the following:

"There is, in our judgment, no need to imply into the statute a requirement not expressly present, namely, that the employer should know of the disability as such or as to whether its material features fell within or without Schedule 1 of the Disability Discrimination Act 1995. It may be that O'Neill v. Symm & Co Ltd [1998] ICR 481 does not, in any case, go that far. This is not to say, though, that such knowledge or its absence may not be highly material to justifiability under section 5(1)(b) or (2)(b) or as to steps to be considered or taken under section 6: see also section 6(6)(b)."

At the end of that citation, the President was referring to the specific lack of knowledge defence contained in section 6(6) as a defence to a claim against an employer that he had failed to make adjustments. In that section it is a defence if an employer can prove that he did not know, and could not reasonably be expected to know, that a person has a disability. We note that within that subsection the word "disability" is used, which in our view must connote its statutory meaning, thus the employer would have a defence if he could show that he did not know, or could not be reasonably expected to know, that a person has a disability within the meaning of section 1 of the Act. Thus, in this case, the Tribunal were perfectly entitled to take a view, as far as the section 6 claim was concerned, that even if the employers had some knowledge of the symptoms, they did not know that he was disabled within the meaning of the Act. In this case, the Tribunal went further and found in relation to section 5 that there was no reason for the employers to consider that the reason for the dismissal which they had in mind might relate to disability. That finding was open to them on the facts that they had found, particularly in relation to the adverse conduct on behalf of the Appellant and his representative.

23. The next complaint relates to the Tribunal failing to consider properly whether the Respondents had failed to make reasonable adjustments, pursuant to section 6 of the Act. As we have already indicated, on the finding as to knowledge, the Respondents would have a valid defence under section 6(6). The Tribunal had noted in its findings that the employers, prior to dismissal, had indicated a willingness for the Appellant to return to work on the basis of reduced hours and also offered counselling, and had shown "a willingness ……to take measures to ascertain the precise nature of the illness". The particular complaint made before us by the Appellant is that no adjustment had been offered to the Appellant as a result of the final management meeting. However, the Appellant had decided not to attend that meeting and, on the Tribunal's findings, in paragraph 19, failed to co-operate with the Respondents' reasonable attempts to ascertain his medical position. Insofar as there was any duty on these Respondents to make reasonable adjustments, we are satisfied that the Tribunal's findings were correct.
24. The Appellant then submits that the Tribunal's decision that the Appellant's dismissal was not an act of disability discrimination was an error of law. Again, we are quite satisfied that the Tribunal were entitled to come to the view that the Appellant's alleged disability had no part in the decision to dismiss him. In the light of the Tribunal's findings as to disability and the Respondents' lack of knowledge, the Tribunal were bound to come to a conclusion that disability did not play any part in relation to the decision to dismiss; and even if it did, that the Respondents were justified in dismissing him because of his failure to co-operate with their attempts to ascertain his true medical situation. It is submitted that, in paragraph 18 of the Decision, the Tribunal failed to consider the issue of justification, but we are quite satisfied that in paragraphs 18 and 19 the issues were indeed examined by the Tribunal, and they found "little or no merit" in the submission that the "Respondents should obtain better and more detailed medical evidence before reaching their Decision". Lindsay J, in H J Heinz Co Ltd -v- Kenrick, had referred at page 146 to the "very low threshold for justification" provided the reason is both material to the circumstances of the particular case and substantial. In Jones -v- The Post Office [2001] IRLR 37, The Court of Appeal equated the function of an Employment Tribunal under section 5(3) as being not very different from the task they had to perform in relation to cases of unfair dismissal, i.e. that the opinion of the employer should be respected if it is within the range of reasonable responses under the Employment Rights Act and if the reason given is material and substantial under the Disability Discrimination Act. Quite clearly, in our view, the Tribunal were entitled to come to the view that they did in relation to both dismissal and justification. For these reasons we would dismiss this appeal.