United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D SQUIRES (of Counsel) Instructed by: Messrs Lamport Bassitt Solicitors 46 The Avenue Southampton SO17 1AX
For the Respondent	MR P GOTT (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) One Kemble Street London WC2B 4TS


 


SUMMARY

Disability discrimination - Justification

The Appellant alleged that the Tribunal had misdirected itself on the issue of justification in a disability discrimination case and had asked whether the employer's decision was rational, in the sense of perverse, rather than within the range of reasonable responses as laid down in Jones v Post Office [2001] ICR 805. EAT held that as a matter of construction of the decision, the Tribunal did not fall into this error.
 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

Background

1. This is an appeal from the unanimous decision of the Employment Tribunal (ET) sitting at Southampton, where it dismissed the Appellant's claim for unfair dismissal and also certain claims of unlawful discrimination contrary to the Disability Discrimination Act. It is only the latter that is the subject of this Appeal. For reasons which will become clear, a detailed recitation of the facts is not necessary for the purposes of dealing with the only ground of appeal in this case. Accordingly, we set them out in relatively summary form.
2. Mr Harman, the Appellant, has idiopathic optic nerve atrophy, a visual impairment which cannot be corrected with spectacles. By the time of the Tribunal hearing, the Ministry of Defence (MOD) (the Respondent to this appeal) had acknowledged that he is disabled within the meaning of the Disability Discrimination Act as a result of this condition.
3. Mr Harman commenced employment with the MOD on 3 September 2001 at the HMS Nelson naval base in Portsmouth. He held the position of a stationery clerk in the stationery store. The post entailed receiving stationery orders, logging them into a computer, fielding telephone enquiries about the orders, checking the orders and then filing the relevant order documents. The previous holder of the position had also physically to deliver the orders, and that involved driving. These were not functions which Mr Harman was in a position to do, given his disability, so the position was accordingly adjusted for him. This involved a substantial reduction in the job, as the Tribunal found, and it was recognised that he would need assistance and an enhancement of visual display equipment.
4. Initially Mr Harman was placed on a one year probationary period. From the beginning, he encountered difficulties with the post. Customers were making complaints. Ordering mistakes were made. Backlogs developed from time to time and Mr Harman was not able to keep on top of the filing element of his job. The probation was extended by a further six months to 10 March 2003. That was to enable the further monitoring of his performance and to provide him with a further opportunity to improve. Five probation reports were produced in respect of Mr Harman, on 8 April 2002, 19 June 2002, 3 September 2002, 3 December 2002 and 10 March 2003. Mr Harman was provided with a magnifying screen for his computer monitor, enhanced lighting, and software to enable him to increase the font size on the screen. Magnifying sheets were also provided to assist Mr Harman in reading documents, but these were found to be unsuitable and they were returned.
5. Mr Harman's workplace was the subject of three workplace assessments in 2001 and 2003. Mr Harman was also provided with training. That was in accordance with the recommendation of the workplace assessments. There was a variety of courses which he attended, including those for keyboard skills and working efficiency, and he was sent on seven specific courses involving the use of computers, information technology, and so forth. He was also the subject of three MOD welfare assessments in 2002 and 2003.
6. Despite the reduction in the duties associated with his position, the additional probation time, the adjustments, and the training, Mr Harman was unable to achieve what the employers considered to be a satisfactory level of performance. Because of his disability, he had to check all the orders twice and that inevitably slowed down performance. There were peaks and troughs but he could not maintain steady progress and consistent satisfactory work. It must be emphasised, however, that there was never any question at all about his commitment, his willingness to work hard, or his co-operation.
7. Mr Harman was given his first formal warning on 3 September 2002. That was following a 12 month probation report. The failings identified in that report included the organisation and management of his work, keyboard skills, and his liaison with line management. A second formal warning was received on 9 December 2002. At the end of his probation and following a further report, a Departmental Review Board (DRB) was commissioned to review Mr Harman's position. The MOD's case before the DRB was that Mr Harman's output was just 25% of that expected and that he was having an extremely adverse impact on the department. These were observations which the Tribunal felt to be unwarranted. Mr Harman claimed that his disability had not been properly recognised and dealt with by line management. The DRB sat on 21 July 2003 and it recommended Mr Harman's dismissal. It concluded that:

"all efforts had been made to assist Mr. Harman in recognising and achieving the required standard of performance. It was therefore concluded that while Mr Harman had a good attendance record and clearly worked hard, it was unlikely that he would be able to maintain an acceptable level of work performance."

They did recommend 100% compensation payments because of his willingness and hard work.

8. Mr Harman was then given a further opportunity to make representations, which he did on 16 October 2003 to Commodore Hussain. The Commodore interviewed various persons who had been concerned with Mr Harman's employment but ultimately confirmed the dismissal on 20 November 2003. The reason given was inefficiency through unsatisfactory performance. Mr Harman's last day of work was 29 December 2003.
9. Mr Harman appealed to the Civil Service Appeal Board. His appeal was held on 4 March 2004 and it was dismissed with reasons given on 16 March 2004. Thereafter, he brought his claim before the ET.

The relevant legislation

10. The material legislation which needs to be considered for the purposes of this appeal is found in section 5 of the Disability Discrimination Act. This was the legislation in force at the material time:

"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 them 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 is justified.

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

11. The approach to the question of justification has been considered by the Court of Appeal in the case of Jones v Post Office [2001] ICR 805. In that case, the employee, Jones, had been employed for some 20 years as a mail delivery driver. However, he had diabetes and had had a heart attack and so he was removed from his driving duties. It was later agreed by the employers that he should be allowed to drive but not so as to exceed two hours in 24. He rejected that offer and claimed that he had been discriminated against pursuant to the 1995 Act. The employer relied on justification. They relied on medical evidence available to them. The ET determined that they had been wrong to do that and that a correct appraisal of the evidence would have concluded that Mr Jones could continue to drive. The Employment Appeal Tribunal (EAT) set that decision aside and the Court of Appeal dismissed the appeal of Mr Jones. Pill LJ set out the approach which should be adopted to the question of justification in a case of this kind, in the following terms:

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

26 The present problem will typically arise when a risk assessment is involved. I am not doubting that the employment tribunal is permitted to investigate facts, for example as to the time-keeping record of the disabled person or as to his rate of productivity, matters which would arise upon some of the illustrations given in the Code of Practice. Consideration of the statutory criteria may also involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision maker, a test approved by Sir Thomas Bingham MR in a different context in R v Ministry of Defence, Ex p Smith [1996] ICR 740, 777-778, the employment tribunal could hold the reason insufficient and the treatment unjustified.

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

28 The limited function of the employment tribunal may in some circumstances place them in a situation which is less than straightforward procedurally. However, it is not one with which they are unfamiliar. It is different but not very different from the task employment tribunals have to perform in cases of unfair dismissal. In Foley v Post Office [2000] ICR 1283 it was held in this court that, in applying the law of unfair dismissal in section 98 of the Employment Rights Act 1996, tribunals should continue to adopt the "band or range of reasonable responses" approach to the issue of the reasonableness or unreasonableness of a dismissal as expounded in Iceland Frozen Foods Ltd v Jones [1983] ICR 17. Under that section the tribunal's task is to consider the reasonableness of the employer's response and, under the present section, it is to consider the materiality and substantiality of his reason. In both cases the members of the tribunal might themselves have come to a different conclusion on the evidence but they must respect the opinion of the employer, in the one case if it is within the range of reasonable responses and in the other if the reason given is material and substantial."

Kay LJ and Arden LJ agreed with the reasoning of the Pill LJ. Arden LJ summarised the position at paragraph 41 in the following terms:

"41 …They are not entitled to find that the employer's reason for the discrimination was not justified simply because they take the view that some conclusion, other than that to which the employer came, would have been preferable. Nor can they conclude that justification has not been shown simply because they entertain doubts as to the correctness of the employer's conclusion. If credible arguments exist to support the employer's decision, the employment tribunal may not hold that the reason for the discrimination is not "substantial". If, however, the employer's reason is outside the band of responses which a reasonable employer might have adopted, the reason would not be substantial. This test was applied by the Court of Appeal in the different context of unfair dismissal in Foley v Post Office [2000] ICR 1283. In short, so far as the second limb of section 5(3) of the 1995 Act is concerned, justification is shown provided that the employer's reason is supportable."

The Decision of the Tribunal

12. The Tribunal gave extended reasons for its decision on 23 August 2005. There had in fact been a delay of over 12 months when the hearing first began but the reasons for that were set out by the Tribunal at paragraph 5 of its decision. The Tribunal there pointed out that there had been a divergence of view between the members of the panel about how the law applied to the findings of fact and there had to be a number of meetings before those differences of view were resolved.
13. The Tribunal held that Mr Harman had not been unfairly dismissed. They concluded that the dismissal had been on grounds of capability, that there had been a proper investigation and appraisal and the conclusion to dismiss did not fall outside the range of reasonable responses. They also rejected a claim that the MOD had failed to make reasonable adjustments, pursuant to section 6 of the Act and they dismissed the complaint of unfavourable treatment. As far as that third element is concerned, the Tribunal concluded that the employers had been justified in taking the steps which they had. The complaints here did not only relate to the dismissal but also to certain other specific acts of alleged discrimination.
14. As we have said, Mr Harman does not seek to appeal the decision of the Tribunal in relation to either the unfair dismissal or indeed the alleged breach of section 6 of the Act. His appeal is directed solely to the question of whether he had received unfavourable treatment contrary to the Act and whether the employer could justify it.
15. The Tribunal's decision in relation to justification is set out between paragraphs 74 and 85. Paragraphs 74 to 82 are as follows:

"74. The MOD's case of justification in relation to the complaint of less favourable treatment is that the reason for the less favourable treatment was both material to the circumstances of the case and substantial. It elaborates on the approach to be taken to this issue by placing reliance upon the decision of the Court of Appeal in Jones v Post Office [2001] IRLR 384. The MOD, founding itself on Harvey paragraph D1/1191, submits that the tribunal must conduct an analysis broadly similar to that involved in determining whether a dismissal was unfair. Thus, what is involved, it is said, is in the nature of a review of the employer's decision.

75. In Jones v The Post Office, the court held that a tribunal, when deciding whether the statutory criteria had been satisfied, was engaged in a limited task. The tribunal has to investigate the facts and assess whether there was evidence on the basis of which the employer's decision could properly be taken. The tribunal can also decide whether the employer's decision was one which went beyond the range of reasonable responses. It is not for the tribunal to decide whether the employer's decision was "correct" in the sense that it was a decision which the tribunal would have reached. The tribunal is permitted to investigate facts, and it might be necessary to assess the employer's decision to the extent of determining whether there was evidence on the basis of which a decision could properly be made.

76. In Surrey Police v Marshall [2002] IRLR 843, the EAT held that a tribunal was entitled to have regard to information not available to the employer at the time of its decision in order to decide whether there was material on which a decision could properly be made, and as to whether it was a decision open to a reasonable decision-maker.

77. Murray v Newham Citizens Advice Bureau [2003] IRLR 340, the EAT held that a tribunal was obliged to consider what materials were available to the employer, and whether the employer should have sought additional information. If the tribunal concludes that the decision not to seek additional information was within the range of reasonable responses, it should consider whether, upon the information that the employer had, the decision was for a reason that was both material and substantial.

78. In Paul v National Probation Service IRLR 190, the EAT held that Jones v Post Office decided that a tribunal was not entitled to make up its own mind on justification when there had been a properly conducted risk appraisal. There had been no properly conducted risk appraisal, and the tribunal ought not to have placed reliance on Jones v Post Office.

79. These decisions demonstrate a number of points relevant to the rule established in Jones v Post Office:

(a) A tribunal need not uncritically accept an employer's assertions.

(b) A tribunal may have regard to information not available at the time for the purpose of conducting a critical analysis of the employer's reasons for its decision.

(c) In deciding whether it was open to a rational employer to make a particular decision, a tribunal may have regard to whether the employer paws in a position to make a proper decision.

Thus, a tribunal must consider whether the employer was in a position to make a proper decision before deciding that the employer's decision was on grounds which were material and substantial.

80. Commenting upon the decision in Jones, Brian Doyle observes of the Tribunal's role as follows:

"It was not the function of the tribunal to decide whether the employer's assessment of the risk was correct, provided it had been conducted properly, was based upon appropriate evidence, and was not irrational. It did not matter that the tribunal might have come to a different conclusion itself. It was not the function to make up its own mind based upon its own appraisal of the evidence." (5th Edition, paragraph 3.2.32).

81. In the present case, we have reached the conclusion that the DRB and subsequently Commodore Hussain were in a position to reach a proper decision. There was voluminous documentation, there were interviews of relevant personnel and there [were] representations made on behalf of Mr. Harman. We do not think that there was any shortcoming in the investigative process which the MOD undertook when looking into the matter. As will be apparent from our earlier findings of fact, most of the material was presented to the DRB and to Commodore Hussain in documentary form, and was supplemented by oral responses to questions from line managers and Mr. Harman.

82. This leads us to the critical point which is whether it was open to the DRB and Commodore Hussain to make the decision that was made on the basis of that material, or whether the decision was irrational. We do not think that it can be described as an irrational decision. It is true that we might not have interpreted the material in the way in which the DRB and Commodore Hussain interpreted it. However, we do not consider that the interpretation which the MOD placed upon that material was impermissible. That they failed to attach the same significance as we would have attached to some of the practical aspects of Mr. Harman's working practices does not invalidate their process – it simply identifies the point at which we must defer to their decision which was made rationally and upon the available materials. It gives us little satisfaction to reach this conclusion, but we accept that the decision in Jones v Post Office requires us to respect decisions made on material and substantial grounds even where we would disagree with those decisions had we been asked to make them."

16. The Tribunal then considered between paragraphs 83 to 85 the other complaints of less favourable treatment and they essentially analysed them in a similar way, concluding that the decision was not irrational and that the Tribunal was bound by the decision in Jones to defer to these decisions as being material and substantial reasons for the treatment alleged.

The Ground of Appeal

17. The ground of appeal is within a very narrow compass. The Appellant contends that the Tribunal erred in law in the way in which it approached the question of justification. It ought to have asked whether the employer's decision fell within the range of reasonable responses of a reasonable employer. That was the test laid down in Jones. Instead, however, it is submitted that it applied in effect a perversity test. It asked whether the decision to dismiss was irrational. Mr Squires, Counsel for the Appellant, submits that this is effectively the same as the perversity test; the terms perversity and irrationality are used synonymously. In effect, therefore, the Tribunal was applying a test which gives greater leeway to an employer than the range of reasonable responses test would provide.
18. Before considering the approach of the Tribunal itself, there are certain stages in Mr Squires's argument which we can deal with briefly, since they are, as we understand it, common ground. First, the concept of rationality and perversity are often used interchangeably. Mr Squires told us that his researches using the web showed that there are nearly 500 cases where the two words are used interchangeably in the same sentence. Fortunately, he forbore from identifying each of these cases to us, and merely referred to five decisions from the House of Lords to which we need not make any specific reference.
19. Second, the test for perversity is much stricter than the range of reasonable responses test. This is clear from the decision of the Court of Appeal in the case of Foley v Post Office [2000] ICR 1283. This was an unfair dismissal case, but Mummery LJ, in the course of giving judgment at page 1292 (d) to (e), considered the question of whether the range of reasonable responses test and a perversity test were the same. He said this:

"It was made clear in Iceland Frozen Food v Jones [1983] ICR 1725 (b) to (d) that the provisions of section 57(3) of the Employment Protection Consolidation Act (which were re-enacted in section 98(4) of the Employment Rights Act 1996) did not require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair in this section."

Tribunals were advised to follow the formulation of the band of reasonable responses approach instead. If the ET in any particular case misinterprets or misapplies that approach, so as to amount to a requirement of a perverse decision to dismiss, that would be an error of law with which an ET could interfere. So here, if the Tribunal adopts a perversity approach when it ought to apply, as Jones establishes, a range of reasonable responses approach, then it will err in law.

20. Third, the proper test to be applied in the context of justification is the range of reasonable responses test. That has never been disputed by the Respondents.
21. Fourth, if the Tribunal did apply a test of rationality in the sense of applying a perversity rather than the range of reasonable responses test, then that may very well have had an effect on the outcome in this case. The Tribunal clearly had some difficulty applying the law to the facts, as they stated in paragraph 6 of the decision. They considered that the employers had reached a decision which they would not themselves have taken. This is not therefore a case where it could confidently be said that it made no difference which test was being applied.
22. Mr Squires also contends, but this is disputed, that there is a normal or usual meaning of irrationality and that it is akin to perverse. We have been referred to a number of authorities, including a passage from the Judgment of Mummery P in Stewart v Cleveland Guest (Engineering) Ltd [1984] IRLR 440 at paragraph 33. He was there considering the circumstances when the EAT can properly interfere with a finding of an ET in circumstances where there is no apparent misdirection or obvious error of law. He said this:

"An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is "irrational", "offends reason", "is certainly wrong" or "is very clearly wrong" or "must be wrong" or "is plainly wrong" or "is not a permissible option" or "is fundamentally wrong" or "is outrageous" or "makes absolutely no sense" or "flies in the face of properly formed logic. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity."

Sometimes the concept of rationality is used more widely, however, to embrace decisions which are ineptly reasoned or where there is no evidence to support the decision: see the discussion in De Smith, Woolf and Jowell Judicial Review of Administrative Action (5^th Edition at paragraph 13-019).

23. Mr Squires accepts that there is some flexibility in the concept, but he submits that it will not, in the ordinary meaning, extend to include cases which are merely outside the range of reasonable responses of the decision-maker. Accordingly, if the Tribunal is going to use the concept in that unusual sense, it should say so.
24. Mr Gott disputes the premise that the concept of irrationality is a term of art. He accepts that it will very frequently be used to mean perversity, but submits that its use in any particular circumstances must be determined from the context. He says that it is plain that Pill LJ was using the term irrational to mean outside the range of reasonable responses in paragraph 26 of Jones, as indeed was Lord Bingham in the Smith case to which Pill LJ made reference. Accordingly, he says that it is not right to start with any assumption as to how the term is used. It is wrong to say that unless the Tribunal makes its meaning crystal clear it must be assumed that it has equated irrationality with perversity. In any event, he submits that even if there were an onus on the Tribunal to make clear how it has deployed that term, it has discharged that onus here.
25. In our view, the term "irrationality" is not perhaps as clearly defined as Mr Squires would suggest, although we accept that it is very frequently used as a synonym for perversity. It may well be that absent any other indication, that will be the more natural meaning to give to the term. But that situation, we surmise, will but rarely arise. In each case where a court uses the term, one has to read the whole decision fairly and see what the Tribunal meant when it was using the concept.
26. The Respondent in this case also relied upon the fact that there have been a number of cases which have followed Jones and in terms cited paragraph 26 of Pill LJ's Judgment. These authorities were Surrey Police v Marshall [2002] IRLR 843, Murray v Newham Citizens Advice Bureau [2003] IRLR 340, Paul v National Probation Board [2004] IRLR 190, Williams v J Walter Thompson Group [2005] IRLR 376 and Edmund Hall v Butterfield [2005] IRLR 751. It is not necessary, in our judgment, to consider these cases in any detail. Suffice it to say that, as Mr Squires points out, in one of these cases is the concept of irrationality used by the court itself in explaining its decision. Rather, the concept of the range of reasonable responses alone is used. We do not think that these authorities assist the argument of either side.
27. It seems to us that the crucial issue lying at the heart of this case is whether on the fair reading of the decision of this Tribunal it did misdirect itself as to the appropriate test. Mr Squires submits that the Tribunal was using the term irrationality in the narrow sense and in particular, as meaning that the Tribunal could only interfere if there was no proper evidential basis for the decision of the employer. He accepts that the Tribunal did initially direct itself properly in paragraphs 75 to 77, where they refer in terms to the range of reasonable responses test and also, in paragraph 76, they refer to a decision open to a reasonable decision-maker. However, he submits that when it came to the application of those principles to the facts of the case, the Tribunal then erred and applied the test of rationality, in the sense of perversity, thereby giving far greater deference to the decision of the employer.
28. He relies on a number of features of the decision to support his analysis. First, he says that in that part of the decision where it applies the law to the facts - in particular from paragraphs 80 onwards - the only concept referred to is rationality, and there is no specific link between that concept and the range of reasonable responses. Nor is there any indication of any intention that the concept should be so used. He points out that there is in fact no reference in terms to paragraph 26 of the Jones case at all, which the Respondents of course rely upon as demonstrating that the Tribunal is using irrationality as meaning outside the responses of the reasonable employer. He further submitted that in any event that observation was itself ambiguous.
29. Mr Squires also pointed out that when the Tribunal referred in paragraph 80 to a paragraph from the book by Professor Doyle on Disability Discrimination Law (Professor Doyle being a highly respected expert in the field), whilst that paragraph itself made reference to the range of reasonable responses tests and clearly was using irrationality in that context, the Tribunal do not reproduce those parts of the paragraph. It should not, he submits, be assumed that they had them in mind.
30. Finally, he suggests that if one looks in particular at paragraph 82 the Tribunal appears to take the view that it can only interfere with a decision if it is made without a proper evidential basis. One can read paragraph 85 in a similar way, he submits. This is one aspect of the classic rationality test.
31. Mr Gott, Counsel for the Respondent, contends that this is simply an unrealistic and unfair reading of the Tribunal's decision. First, he points out that the Jones case itself is referred to on no fewer than six occasions. That is relevant, because it is plain from paragraph 26 that when Pill LJ said that the decision had to be "irrational as being outside the range of reasonable responses" he was obviously intending to define the concept of rationality for the purpose of that decision, at least, by reference to the range of reasonable responses test. They are being used synonymously. There was no ambiguity or lack of clarity, he submitted, in Pill LJ's decision. Moreover, using the concept in that way was legitimate and merely followed a similar use of the concept of rationality by Lord Bingham in the Smith case to which it made reference. Mr Gott concedes that is not how the concept of rationality is always used. Indeed, it may be that it is used relatively rarely in this sense, but that was plainly how Pill LJ was using it and how it would have been understood by the Tribunal in this case.
32. Secondly, he emphasises the fact - which was accepted by Mr Squires - that the Tribunal had properly directed itself in accordance with the range of reasonable responses test in paragraphs 75 to 77. Mr Gott submits that it would be little short of absurd to think that having so directed itself, the Tribunal then, when applying the law to the facts, adopted an entirely different test of rationality used in the sense of perversity.
33. Third, and again this is not disputed, the case for the MOD had at all points been that Jones established a range of reasonable responses test. Mr Gott had relied on Jones himself, and also on a passage from Harvey on Industrial Relations and Employment Law, which confirmed that Jones established the range of reasonable responses test for establishing justification in a case of this kind. Nobody had ever suggested at any stage that a perversity test was appropriate. There was nothing to put that in the mind of the Tribunal, and no reason to suppose that the Tribunal understood the reference to rationality in the Jones decision as requiring the application of the perversity test to anything like it. There is no reference in the decision to any of the classic cases on rationality in the sense of perversity.
34. Fourth, it would be, he submits, wholly unreal to believe that the Tribunal would have looked at the passage from Professor Doyle's book and not been aware of the fact that he was using the concept of irrationality to mean outside the range of reasonable responses. That was made plain beyond doubt in the sentences immediately preceding and immediately following the part of the paragraph actually quoted in the text. The former said this:

"The Tribunal could also so decide if the employer's decision was an irrational one, going beyond the range of reasonable responses open to a reasonable decision-maker."

And the latter was as follows:

"Its role is said to be not very different from that which it has under section 98 of the Employment Acts Rights 1996 in unfair dismissal cases (the so-called "band of reasonable responses" test)."

He submits that the Tribunal would have had no misconception of the proper test and were plainly intending to apply it. It was a basic premise on which all the arguments before the Tribunal had been advances.

Conclusion

35. We are unanimously of the conclusion that Mr Gott is correct. It seems to us wholly unrealistic to think that this Tribunal, having properly directed itself as to the relevant law in paragraphs 75 to 77 and having made express reference to the range of reasonable responses test, would then have applied a traditional perversity test when applying the law to the facts. The whole debate before the Tribunal was based on the premise that the test was that enunciated clearly and unambiguously in Jones. The reference to the paragraph in Harvey, which was advanced in submission before the Tribunal by Mr Gott, was entirely consistent with that. To the observations of Professor Doyle in his book on discrimination law, we would add the observation that in paragraph 82 of its decision, the Tribunal said this:

"We do not consider that the interpretation which the MOD placed upon that material was impermissible."

36. The term "impermissible" we think has the flavour of a Tribunal which was applying the range of reasonable responses test. It is a classic way of describing a decision which the Tribunal might or would not itself have reached but which is within the range of reasonable responses. We do not think that the Tribunal, simply by saying that the decision was not impermissible, was saying that it was logical or had a proper evidential basis. We recognise, as Mr Squires submits, that it is important that Tribunals should not water down the range of reasonable responses test - particularly in this field - but we do not think, when the decision is read fairly, that the Tribunal fell into that particular error. We would, however, suggest that it would preferable if Tribunals did not use the concept of irrationality when applying the range of reasonable responses test, either in this context or indeed in unfair dismissal law. The concept of rationality is frequently used as a synonym for perversity, or "Wednesbury unreasonableness", as public lawyers say, and to use the term as a synonym for a decision outside the range of reasonable responses can lead to unnecessary confusion, as in this case.
37. It follows that notwithstanding the forceful and attractive submissions of Mr Squires that the appeal fails.