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THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Courts of Justice
25th March, 1999
e f o r e:
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down Transcript of Smith Bernal Reporting Ltd
Fleet Street, London EC4A 2HG
0171 421 4040
Shorthand Writers to the Court)
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ROBIN ALLEN QC
(Instructed by Messrs Stamp Jackson & Procter, Hull HU1 2AZ) appeared on
behalf of the Appellant
(Instructed by Messrs Clarks, Berkshire RE1 1SX) appeared on behalf of the
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U D G M E N T
approved by the Court
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is the first appeal to this court under the Disability Discrimination Act 1995
(the 1995 Act), which was brought into force in relation to employment on 2
December 1996. Since then well over 3,000 applications have been presented to
the Employment Tribunals (formerly called Industrial Tribunals). The appeal
raises fundamental questions on the interpretation and application of the
definition of "discrimination" in section 5
(1) and (2) of the 1995 Act.
Counsel for the appellant described it as a "revolutionary Act" aimed at the
integration of disabled people into society and, in particular, into the
country's workforce. It is certainly more ambitious in its aim and scope than
the system of registered disabled persons and quotas in the Disabled Persons
(Employment) Act 1944, now repealed. And it is without doubt an unusually
complex piece of legislation which poses novel questions of interpretation. It
is not surprising that different conclusions have been reached at different
levels of decision.
state of affairs should not to be taken as a criticism of the Act or of its
drafting or of the judicial disagreements about its interpretation. The whole
subject presents unique challenges to legislators and to tribunals and courts,
as well as to those responsible for the day to day operation of the Act in the
workplace. Anyone who thinks that there is an easy way of achieving a sensible,
workable and fair balance between the different interests of disabled persons,
of employers and of able bodied workers, in harmony with the wider public
interests in an economically efficient workforce, in access to employment, in
equal treatment of workers and in standards of fairness at work, has probably
not given much serious thought to the problem.
proceedings were started in the Industrial Tribunal on 1 April 1997. The
employee's complaint of discrimination was dismissed on 21 August 1997. On the
employee's appeal on 22 May 1998 the Employment Appeal Tribunal directed that
the case be remitted for re-hearing to the Industrial Tribunal. Both sides
object to that order and appeal to this court.
facts of the case are simple. The law is novel. The arguments are complicated.
The court is indebted to both counsel for being excellent and intrepid guides
in new territory.
attempt to simplify the legal reasoning and to clarify the outcome is made in
the summary at the end of this judgment.
31 July 1995 Mr Darren Clark started employment at a plant in Hull as a Process
Operator with TDG Ltd, which trades as Novacold (Novacold) and carries on the
business of processing and storing frozen food. That job involved a
considerable element of manual work and was physically demanding.
the end of May 1996 Mr Clark performed the function of Assistant Supervisor for
a probationary period. That job was also physically demanding. Before the
probationary period had finished he allegedly suffered an injury at work on 21
August 1996. From early September 1996 he was away from work. Novacold paid him
full sick pay for a period of 16 weeks. He never returned to work before his
dismissal on 24 January 1997.
had obtained a report dated 6 December 1996 from Mr Clark's GP, who expressed
the opinion that it was extremely difficult to anticipate his return to work in
the near future. He was unable to walk properly, let alone lift heavy loads.
Novacold also received from an orthopaedic consultant, Mr Bryant, a report
dated 27 December 1996. Mr Bryant stated that he was unable
give an exact time when it should be possible for Mr Clark to return to work".
interpreted Mr Bryant's report as meaning that Mr Clark was likely to be off
for up to 12 months. Novacold decided to terminate Mr Clark's employment. They
wrote to him to that effect on 14 January 1997 stating that, in view of his
medical condition, they had come to the conclusion that he would be unable to
resume work in his former capacity within a reasonable time scale. They
confirmed that alternative work was not available. He was given the period of
notice to which he was contractually entitled. His employment terminated on 24
1 April 1997 Mr Clark presented an application to the Industrial Tribunal
was not entitled to complain of unfair dismissal under the Employment Rights
, as he had not been in the employment of Novacold for the requisite
period of two years. He gave his dates of employment, which were not disputed
by Novacold, as running from 31 July 1995 until 24 January 1997.
the details of his complaint he stated
see no reason why my job could not have been held open pending recovery from my
injuries. In addition I do not consider that my employers gave reasonable
consideration to alternative jobs within the company that I could do even with
their Notice of Appearance Novacold stated that the reason for Mr Clark's
longer capable of performing the main functions of his job".
contended that full consideration had been given to alternative employment, but
no suitable vacancies were identified to suit Mr Clark's experience,
qualifications or capabilities. Novacold went on to state
company considers that it waited a reasonable length of time for Mr Clark's
condition to improve but even in the circumstances the action taken was
of the Industrial Tribunal
Industrial Tribunal sitting at Hull heard Mr Clark's application on 11 and 23
July 1997. In Extended Reasons sent to the parties on 21 August 1997 the
tribunal explained its unanimous decision that Mr Clark's claim for
discrimination under the 1995 Act failed.
main conclusions of the tribunal may be summarised as follows:-
Clark was suffering from a disability and was a disabled person within Section
of the 1995 Act (para 11). He fell within the definition of disability as he
suffered from "a physical...impairment which has a substantial and long term
adverse effect on [his] ability to carry out normal day-to-day activities".
This is not an issue on the appeal.
Clark was dismissed for a reason relating to his disability within the meaning
of Section 5
(1) (para 13). The reason for his dismissal was found to be that
was no longer capable of performing the main functions of his job and that his
absence was continuing and that [Novacold] needed somebody to perform the role
that he was performing."
Tribunal rejected Novacold's contention that the reason did not relate to Mr
Clark's disability, stating (para 13)
either basis of the reason for dismissal it must be related to the disabled
person's disability, whether he be absent or whether he be incapable of
performing his main functions in employment. It must certainly, in the
tribunal's view, relate to his disability, ie the continuing symptoms arising
from the injury which he has suffered."
Clark was not treated less favourably than Novacold would treat others absent
from work for reasons other than disablement. The tribunal stated (para 18)
that the relevant comparator would be somebody
could have been off work for the same length of time as the applicant, but for
a non-disablement reason, and the treatment that is to be examined is what
would be the treatment (be it actual or hypothetical, and in this case was
hypothetical) that could have been given to such a person who was not a
was no liability under Section 5
(1) of the Act
(para 18) because the tribunal
was likely that a person who had been off work for a similar length of time,
and where there was no foreseeability of a return to work and therefore a
continued long term absence, would have been treated no differently than the
applicant albeit that the reason for the termination of the applicant's
employment related to his disability. Therefore the tribunal is satisfied that
the applicant was not discriminated against as he was not treated less
favourably than a person in a similar set of circumstances. The tribunal in
making that comparison believes that there has to be consideration of similar
circumstances in taking the hypothetical comparison. It is not open to the
tribunal to take a comparison of somebody who, hypothetically or otherwise,
does not have similar circumstances other than disability. So it would not
therefore, for example (an extreme example) be open to the tribunal to make the
comparison with somebody who was not off work and who was performing their
normal functions and who was not disabled."
tribunal explained (in para 19) that, if it had decided in favour of Mr Clark
on the less favourable treatment point, it would then have had to consider
whether there was discrimination against him under section 5
(2) by way of
Novacold failing to comply with a duty to make adjustments under Section 6
of the 1995 Act. It went on to hold that the provisions of section 6
apply for two reasons: first, because there was no question of any arrangement
being called into question which could be said to substantially disadvantage Mr
Clark compared with any other person working for Novacold; and, secondly, the
provisions of section 6
(1)(a) do not, by virtue of the provisions of section
(2), apply to decisions to dismiss.
contrary to the view of the tribunal, there had been less favourable treatment,
it would not have been justified within the meaning of Section 5
(3) of the Act
. The tribunal said
....it is clearly the position that there could have been no prejudice to
[Novacold] in continuing the applicant's employment if his employment had not
been terminated. It would have had no organisational nor economic consequences
at all in terms of wages or other matters.... If there had been a finding of
less favourable treatment and therefore discrimination, the tribunal cannot
find that the respondents in this case would have been able to substantiate the
justification defence as they would not have had a material and substantial
reason for the termination of the employment." (para 20).
had confirmed to the tribunal that
they had continued the applicant's employment and not
to pay him sick pay, it would have been of no economic loss to them for them to
continue that employment under those circumstances." (para 7(p))
to the Employment Appeal Tribunal
Clark appealed to the Employment Appeal Tribunal and contended that there were
errors of law in the decision of the Industrial Tribunal. Judgment on the
appeal was given by the President on behalf of the tribunal on 22 May 1998. It
is reported at  IRLR 420
. The Appeal Tribunal ordered the matter to be
remitted, but allowed the parties 14 days in which to make further submissions.
main conclusions of the Employment Appeal Tribunal can be summarised as follows:-
On the construction of section 5
(1) the tribunal had correctly approached the
identity of the comparator as a person who is unable to fulfil all the
requirements of his job, but whose inability is not related to disability as
defined by the 1995 Act. The Appeal Tribunal, like the Industrial Tribunal,
rejected the contention that the comparator is a person who is able to fulfil
all the requirements of his job. However, it was not apparent from the decision
what characteristics the Industrial Tribunal assumed the hypothetical
comparator to have. It should be asked to deal expressly with that point and
the case was remitted for that purpose.
Industrial Tribunal had erred in law in holding that the duty of adjustment in
had no application to a case where an employee was complaining of
dismissal. The Tribunal was not given the assistance it needed on this point.
Mr Clark's case should have been based on a breach by Novacold of their duty to
make adjustments to accommodate him within their employment eg by altering his
hours of work, allocating some of his duties to others or providing
supervision before dismissing him. Those are matters which form part of the
arrangements on which Novacold afforded employment to him. The Industrial
Tribunal had erred in law in not treating these as additional rights under
(2) and section 6
, which were not contingent on Mr Clark succeeding in
his discrimination claim under section 5
(1). The matter should be remitted to
the Industrial Tribunal to consider whether there was discrimination under
(2), in particular having regard to the relevant provisions of the
Code of Practice.
the issue of justification did not arise for decision on the appeal, there did
not appear to be any ground on which the tribunal's factual decision on that
point could be faulted.
that order Counsel for both parties made further submissions to the President
of the Appeal Tribunal. In the light of those submissions he made an order
dated 17 July 1998 that remission to the Industrial tribunal should be stayed
pending the determination of the Court of Appeal, as both parties wished to
appeal. There are in fact two Notices of Appeal. The first is dated 15 June
1998 and is by Mr Clark, challenging the Appeal Tribunal's interpretation on
the comparator point. The second is dated 18 June 1998 and is by Novacold,
contending that the Employment Appeal Tribunal should not have overturned the
decision of the Industrial tribunal and seeking an order that Mr Clark's
application under the 1995 Act be dismissed.
has been agreed that on this appeal Mr Clark will be treated as the Appellant
and Novacold as the Respondent and that Novacold's Notice of Appeal will be
treated as a Notice of Cross Appeal.
is common ground that the issue on this appeal is whether there was an error of
law in the decision of the Industrial Tribunal on the interpretation and
application of the relevant provisions of the 1995 Act to the facts of Mr
Clark's case. That error might take the form of a misinterpretation of the
relevant provisions of the 1995 Act or of a misapplication of the provisions to
the facts or of a conclusion which no reasonable tribunal, properly directing
itself, could have reached.
provisions of the 1995 Act relating to employment are contained in Part II.
Although their general aims are clear and commendable, the language in which
the detailed implementation of them is expressed is not easy to interpret or to
apply to particular cases.
Contrary to what might be reasonably assumed, the exercise of
interpretation is not facilitated by familiarity with the pre-existing
legislation prohibiting discrimination in the field of employment (and
elsewhere) on the grounds of sex (Sex Discrimination Act 1975) and race (Race
Discrimination Act 1976). Indeed, it may be positively misleading to approach
the 1995 Act with assumptions and concepts familiar from experience of the
workings of the 1975 Act and the 1976 Act.
Unlike the earlier discrimination Acts the 1995 Act does not draw the
crucial distinction between direct and indirect discrimination on specified
grounds; it provides a defence of justification to less favourable treatment
which would constitute direct discrimination and be without such a defence
under the earlier Acts; and it does not replicate the express requirement of
the 1975 Act (section 5(3)) and the 1976 Act (section 3(4)) that, when a
comparison of the cases of persons of different sex or persons of different
racial groups falls to be made, the comparison must be such that the relevant
circumstances in the one case are the same, or not materially different, in the
consequence of these differences is that the terms "discriminate" and
"discrimination" are not used in Part II of the 1995 Act in the same sense as
in the earlier Acts. Failure to discern and observe this difference in meaning
in decision making (and in commentaries on both the 1995 Act and on decisions
under it) can lead to serious conceptual confusion.
Part II of the 1995 Act "discrimination" is defined as less favourable
treatment which is not shown to be justified; if the less favourable treatment
of a disabled person is shown to be justified it is not "discrimination" within
the meaning of the Act. This is to be contrasted with the 1975 Act and the 1976
Act under which a person directly "discriminates" against another if, on the
specified ground of sex or race, he treats that other less favourably than he
treats or would treat other persons. Justification does not enter into it. Such
treatment can never be shown to be justified.
may be helpful to bear these general observations in mind when interpreting the
detailed provisions of the 1995 Act.
4(2) makes it unlawful for an employer to discriminate against a disabled
person in specified ways, including
5 defines discrimination as follows:-
For the purposes of this Part, an employer discriminates against a disabled
person if -
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
he cannot show that the treatment in question is justified.
the purposes of this Part, an employer also discriminates against a disabled
person if -
he fails to comply with a Section 6 duty imposed on him in relation to the
disabled person; and
he cannot show that his failure to comply with that duty is justified."
is dealt with in subsections (3), (4) and (5) as follows
Subject to subsection (5), for the purposes of subsection (1) treatment is
justified if, but only if, the reason for the failure is both material to the
circumstances of the particular case and substantial.
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.
If, in a case falling within subsection (1), the employer is under a section 6
duty in relation to the disabled person but fails without justification to
comply with that duty, his treatment of that person cannot be justified under
subsection (3) unless it would have been justified even if he had complied with
the section 6 duty."
6 concerns the duty of an employer to take reasonable steps to make adjustments
in relation to arrangements and physical features of premises to prevent the
disabled person from suffering disadvantage:-
any arrangements made by or on behalf of an employer, or
any physical feature of premises occupied by the employer,
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.
Subsection (1)(a) applies only in relation to -
arrangements for determining to whom employment should be offered; and
any term, condition or arrangements on which employment, promotion, a transfer,
training or any other benefit is offered or afforded."
(3) sets out detailed examples of steps which an employer may have to take in
relation to a disabled person in order to comply with subsection (1). They
include not only adjustments to premises but also allocating some of the
disabled person's duties to another person, transferring him to fill an
existing vacancy, altering his working hours or assigning him to a different
place of work.
(4) refers to those matters to which regard shall be had in determining
it is reasonable for an employer to have to take a particular step in order to
comply with subsection (1)."
(5) defines what is meant by "the disabled person concerned". That includes
not only an applicant for the employment concerned but also an employee of the
employer concerned: subsection (5)(b)(ii).
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."
6 (11) provides-
section does not apply in relation to any benefit under an occupational pension
scheme or any other benefit payable in money or money's worth under a scheme or
arrangement for the benefit of employees in respect of-
termination of service;
6 (12) states-
section imposes duties only for the purpose of determining whether an employer
has discriminated against a disabled person; and accordingly a breach of any
such duty is not actionable as such."
55 in Part VII (SUPPLEMENTAL) of the 1995 Act contains provisions relating to
victimisation of persons, whether disabled or not, who are discriminated
against for bringing proceedings under the Act or giving evidence in connection
with such proceedings. See subsection (2). Section 55(1) states that-
the purposes of Part II or Part III, a person ("A") discriminates against
another person ("B") if-
he treats B less favourably than he treats or would treat other persons whose
circumstances are the same as B's; and
he does so for a reason mentioned in subsection (2)."
provision in Part VII of the 1995 Act as to what constitutes discrimination by
way of victimisation is an instructive example of the use of the term
"discriminate" in the same sense as direct discrimination in the earlier Acts.
It is different from the sense in which it is used in Part II of the 1995 Act.
on the Appeal and the Cross Appeal
the Industrial Tribunal err in law in holding that Mr Clark was not subject to
discrimination within the meaning of section 5(1) ?
contend that the Industrial Tribunal reached the right decision. Mr Clark
contends that the Industrial Tribunal erred in its construction of section 5(1).
the Industrial Tribunal err in law in holding that there was no failure of duty
on the part of Novacold to make adjustments to Mr Clark pursuant to section
5(2) and 6(1) ?
contend that there was no error of law, that the Industrial Tribunal's decision
is correct and that the Appeal Tribunal should not have interfered with it by
remitting the question to the Industrial Tribunal.
the Industrial Tribunal err in law in holding that, had there been
discrimination, it was not justified within the meaning of section 5(1)(b) and
section 5(2)(b) and (3). Novacold contend that, if it becomes necessary to
determine this issue, the decision of the Industrial Tribunal that
discrimination was not justified should be overturned and a finding that it was
justified substituted. Alternatively, the matter of justification should be
remitted to the tribunal for rehearing.
Section 5(1) Point
two questions posed by the statutory provisions are:-
Mr Clark dismissed for a reason which relates to his disability?
so, did Novacold treat him less favourably than they would treat others to whom
that reason would not apply?
(1) is one of fact. It is common ground that "dismissal" is caught by section
5(1). See section 4(2)(c). The finding of the Industrial Tribunal on the reason
for dismissal is stated above. It is clear that that was a reason which related
to his disability.
order to answer Question (2) it is necessary to compare Novacold's treatment of
Mr Clark with the treatment of others to whom "that reason" would not apply.
is meant by "
the one hand, it is argued on behalf of Novacold that it refers to the whole of
the first clause of the paragraph. That imports two requirements: first, the
existence of "a reason" for the treatment (in this case, the dismissal);
secondly, the causal link between the reason and the disabled person's
disability. It must be a reason "which relates to the disabled person's
disability." Thus "
reason" embraces the significant causal link to the disability. On this
approach the person to whom "
reason" would not apply would be one who, like the disabled person, is
incapable of performing the main functions of his job, but for a reason which
relate to disability. This is the interpretation favoured both by the
Industrial Tribunal and the Appeal Tribunal. On the factual findings of the
tribunal this interpretation leads to the conclusion that Mr Clark was not
treated less favourably than others incapable of performing the main functions
of their job for a non-disability reason.
contrary interpretation is submitted on behalf of Mr Clark. His argument is
reason" refers only to the first three words of the paragraph - "for a reason".
The causal link between the reason for the treatment and the disability is not
the reason for the treatment. It is not included in the reason for the
treatment. The expression "which relates to the disability" are words added not
to identify or amplify the reason, but to specify a link between the reason for
the treatment and his disability which enables the disabled person (as opposed
to an able-bodied person) to complain of his treatment. That link is irrelevant
to the question whether the the treatment of the disabled person is for a
reason which does not or would not apply to others. On this interpretation the
others to whom "
reason" would not apply are persons who would be capable of carrying out the
main functions of their job. Those are the "others" proposed as the proper
comparators. This comparison leads to the conclusion that Mr Clark has been
treated less favourably: he was dismissed for the reason that he could not
perform the main functions of his job, whereas a person capable of performing
the main functions of his job would not be dismissed.
Linguistically section 5(1)(a) is ambiguous. The expression "that reason" is,
as a matter of ordinary language, capable of bearing either of the suggested
meanings. The ambiguity must be resolved by recourse to the context of the
ambiguous language and to the aim of the legislation. The correct approach is
that stated by Waite LJ in
v Tower Boot Co Ltd
 ICR 254
statute is to be construed according to its legislative purpose, with due
regard to the result which it is the stated or presumed intention of Parliament
to achieve and the means provided for achieving it ("the purposive
construction") and the second is that words in a statute are to be given their
normal meaning according to general use in the English language unless the
context indicates that such words have to be given a special or technical
meaning as a term of art ("the linguistic construction")
the historical context of discrimination legislation it is natural to do what
the Industrial Tribunal and the Appeal Tribunal (though "without great
confidence") did, namely to interpret the expression "that reason" so as to
achieve a situation in which a comparison is made of the case of the disabled
person with that of an able-bodied person and the comparison is such that the
relevant circumstances in the one case are the same, or not materially
different, in the other case. This might be reasonably considered to be the
obvious way of determining whether a disabled person has been treated less
favourably than a person who is not disabled.
as already indicated, the 1995 Act adopts a significantly different approach to
the protection of disabled persons against less favourable treatment in
employment. The definition of discrimination in the 1995 Act does not contain
an express provision requiring a comparison of the cases of different persons
in the same, or not materially different, circumstances. The statutory focus is
narrower: it is on the "reason" for the treatment of the disabled employee and
the comparison to be made is with the treatment of "others to whom that reason
does not or would not apply." The "others" with whom comparison is to be made
are not specifically required to be in the same, or not materially different,
circumstances: they only have to be persons "to whom that reason does not or
would not apply".
is to be contrasted not only with the different approach in the 1975 and the
1976 Acts, but also with the express requirement of comparison of with the
treatment of other persons "whose circumstances are the same" stipulated in
victimisation cases by section 55(1) (a) of the 1995 Act.
result of this approach is that the reason would not apply to others even if
their circumstances are different from those of the disabled person. The
persons who are performing the main functions of their jobs are "others" to
whom the reason for dismissal of the disabled person (i.e. inability to perform
those functions) would not apply.
the context of the special sense in which "discrimination "is defined in
section 5 of the 1995 Act it is more probable that Parliament meant "that
reason" to refer only to the facts constituting the reason for the treatment,
and not to include within that reason the added requirement of a causal link
with disability: that is more properly regarded as the cause of the reason for
the treatment than as in itself a reason for the treatment. This interpretation
avoids the difficulties which would be encountered in many cases in seeking to
identify what the Appeal Tribunal referred to as "the characteristics of the
hypothetical comparator". It would avoid the kind of problems which the
English (and Scottish) courts and the tribunals encountered in their futile
attempts to find and identify the characteristics of a hypothetical
non-pregnant male comparator for a pregnant woman in sex discrimination cases
before the decision of the European Court of Justice in
v Emo Air Cargo (UK) Ltd
(No 2)  1 WLR 1454
interpretation is also consistent with the emphasis on whether the less
favourable treatment of the disabled person is shown to be justified. That
defence is not available in cases of direct discrimination under the other
It is also more consistent with the scheme of the 1995 Act as a whole.
As Roch LJ pointed out in the course of argument, the language of section 5(1)
is replicated in other Parts of the Act relating to the definition of
discrimination in other areas: goods, facilities and services in section 20(1);
and premises in section 24 (1). Although neither side sought to place before
the court any
material on section 5, such material appears to be available on the provisions
relating to access to services. The interpretation of the provisions in section
20(1) is relevant to the interpretation of section 5, as they are in the same
the second reading of the Bill for this Act the Minister for Social Security
and Disabled People stated-
Bill is drafted in such a way that indirect as well as direct discrimination
can be dealt with...A situation where dogs are not admitted to a cafe, with
the effect that blind people would be unable to enter it, would be a prima
facie case of indirect discrimination against blind people and would be
unlawful." (253 HC Official Report (6th series) col 150, 24 January 1995)
20(1) provides that
the purposes of section 19,a provider of services discriminates against a
disabled person if-
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
he cannot show that the treatment in question justified."
19 covers,among many other things, access to facilities for refreshment: (3)(f).
important point to note is that, if Novacold are correct in their
interpretation of section 5(1), it would follow that section 20(1), which is in
the same terms, would have to bear a meaning inconsistent with the specific
statement of the Minister on the intended effect of those provisions.
his example. If no dogs are admitted to a cafe, the reason for denying access
to refreshment in it by a blind person with his guide dog would be the fact
that no dogs are admitted. That reason "relates to" his disability. His guide
dog is with him because of his disability.
the Novacold interpretation of the comparison to be made, the blind person with
his guide dog would
be treated less favourably than the relevant comparator i.e." others", to whom
that reason would not apply, would be sighted persons who had their dogs with
them. There could not therefore be any, let alone prima facie, discrimination.
the Minister specifically stated that this would be a prima facie case of
disability discrimination i.e. less favourable treatment, unless justified. It
could only be a case of less favourable treatment and therefore a prima facie
case of discrimination, if the comparators are "others"
"that reason" for refusing access to refreshment in the cafe would not apply to
"others" without dogs.
same point can be made on the example given in the Code of Practice on Rights
of Access issued by the Secretary of State at para. 2.12-
waiter asks a disabled customer to leave the restaurant because she has
difficulty eating as a result of her disability. He serves other customers who
have no difficulty eating. The waiter has therefore treated her less favourably
than other customers. The treatment was for a reason related to her
disability-her difficulty when eating. And the reason for her less favourable
treatment did not apply to other customers.
the waiter could not justify the less favourable treatment, he would have
is clear from this example that the comparison to be made is with other diners
who have no difficulty in eating and are served by the waiter, and not with
other diners who may be asked to leave because they also have difficulty
eating, but for a non-disability reason e.g because the food served up by the
waiter is disgusting.
interpretation of section 20(1) provides support for Mr Clark's interpretation
of section 5(1). The reason for his dismissal would not apply to others who are
able to perform the main functions of their jobs; he has been treated less
favourably than those others. He was dismissed for not being able to perform
the main functions of his job. The "others" would not be dismissed for that
that does not necessarily mean that Mr Clark has been discriminated against.
It is open to Novacold to show that the dismissal is justified, just as it
would be open to the cafe proprietor to justify the exclusion of dogs,
including guide dogs with their blind owners.
Section 5(2) Discrimination Point and the Duty to make adjustments
question is: did Novacold treat Mr Clark less favourably under section 5(2) by
failing to comply with their duty under section 6 to take reasonable steps to
prevent arrangements, on which employment by them is afforded, having the
effect of placing Mr Clark at a substantial disadvantage in comparison with
persons who are not disabled?
difficulty with this point is that, as explained by the Appeal Tribunal on
ordering that the matter be remitted to the Industrial Tribunal, the point was
never apparently fully addressed by it in those terms.
opening words of paragraph 19 of the Extended Reasons indicate that the
tribunal wrongly thought that, as the discrimination claim under section 5(1)
failed, it was not possible to make a discrimination claim under section 5(2).
That is legally erroneous. The language of section 5(2) makes it clear that
failure to make adjustments under section 6(2) may "also" constitute an act of
discrimination against a disabled person and liability for that discrimination
is not contingent on a finding of less favourable treatment under section 5(1).
does not follow from this error of interpretation of section 5(2) that the
decision of the tribunal on this point should be reversed. The tribunal went on
to hold that section 6(2) did not apply where the disabled person had, as here,
been dismissed and there was no arrangement made by Novacold that could be said
to substantially disadvantage Mr Clark compared with any other person working
is contended that this is an erroneous interpretation of section 6(2). The wide
language of section 6(2) and 6(3) is capable of applying to a "dismissal
situation" as was held by the Appeal Tribunal in
v Wiltshire CC
 ICR 1023
. It was pointed out by Bell J at 1033 B-C that, although
section 6 makes no express mention of dismissal, termination of service or
redundancy, the Code of Practice assumes that section applies to a dismissal in
the circumstances of the applicant in that case. "Arrangements on which
employment....is offered or afforded" include alternatives to dismissal, such
as are mentioned in section 6(3)-allocation of the disabled person's duties to
another person, assigning him to a different place of work or transferring him
to fill an existing vacancy. It is important to note, however, that the
complaint in that case under section 5(2) and section 6 was about arrangements
of the employer relating to the criteria for selection for redundancy and the
failure of the employer to make reasonable adjustments to them under section 6
The position in this case is that the only act complained of by Mr Clark in his
IT 1 (and this was confirmed by his Leading Counsel at the hearing of this
appeal) was dismissal. His complaint was that the dismissal was discriminatory,
because it was less favourable treatment within section 5(1)(a) and it was not
justified under section 5(1)(b) because reasonable consideration had not been
given to alternative jobs within the company which he could do even with his
was only open to him to argue that the act of dismissal was itself a breach of
the duty to make adjustments under section 6. An industrial tribunal only has
jurisdiction to adjudicate on the acts of which complaint is made to it and not
on some other act of which the applicant could have made complaint but did not:
 IRLR 124
at 128 and 129;
v London Regional Transport
 IRLR 73 at 76. I agree with the Industrial Tribunal to the extent that
it held that the act of dismissing Mr Clark was not in itself a breach of the
section 6 duties. I should add, however, that there is a possible source of
confusion in the reference in paragraph 19 of the Extended Reasons and the
arguments arising from the reference to "dismissal situations" not being
included in section 6(2). There may well be cases (but this is not one of them)
where a person who has been dismissed complains of both section 5(1)
discrimination by unjustified dismissal and also of section 5(2) discrimination
by pre-dismissal breaches of section 6 duties while he was still in employment.
There is no reason why an employee should not be able to pursue both claims:
they are separate acts of discrimination and the fact that the employee has
been dismissed does not deprive him of the right to complain of a wrong
committed against him while he was still employed in the employer failing to
comply with the duty to make reasonable adjustments to arrangements and to
premises. I would add that, in an appropriate case, there is no reason why the
compensation recoverable for a section 5(2) case should not include
compensation for the loss of a job which flows from the failure to make the
reasonable adjustments, though I would normally expect such compensation to be
awarded on a successful claim for section 5(1) discrimination rather than under
question is: is the less favourable treatment of Mr Clark by Novacold shown to
be justified under section 5(1)(b)? The Tribunal held that it was not. The
Appeal Tribunal saw nothing wrong with that conclusion. This court has had the
benefit of fuller argument on this point, as on the other points.
is an error of law in the reasoning of the tribunal which makes it necessary to
remit the question of justification for rehearing.
section 53(6) of the 1995 Act the duty of the tribunal is as follows-
any provision of a code appears to a tribunal or court to be relevant to any
question arising in any proceedings under this Act, it shall be taken into
account in determining that question."
is true that the tribunal expressly stated that it had "considered the
provisions of the Code of Practice and in particular paragraphs 4.6,4.7 and 4.8
of the Code" and it concluded that "None of the examples set out in the Code
are of particular assistance in this case."
tribunal appears to have overlooked a relevant provision in the Code. Paragraph
6.21 of the Code is headed "Termination of Employment." It provides-
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.
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
provision in the Code is of particular assistance in this case because the
tribunal found as a fact that the reason for Mr Clark's dismissal was that "he
was no longer capable of performing the main functions of his job" (paras 7q
and 13); that his absence was continuing; that they needed somebody to perform
the role that he was performing; and that there was "not available any existing
vacancy that would have provided suitable alternative employment" for him.
Tribunal also found that "it was likely that a person who had been off work for
a similar length of time and where there had been no foreseeability of a return
to work and therefore a continued long term absence, would have been treated
no differently than the applicant" (para 18).
of addressing these points the tribunal concentrated on the examples in the
provisions of the Code quoted by it (in particular, para 4.6) as illustrations
of the requirement in section 5(3) of the 1995 Act that the reason for less
favourable treatment must be both material to the circumstances of the case and
substantial. This approach led the tribunal to focus, to the exclusion of other
material facts found by them, on the finding that there could have been no
prejudice to Novacold "in continuing the applicant's employment if his
employment had not been terminated. It would have had no organisational nor
economic consequences at all in terms of wages or other matters. "(para 20).
a rehearing the tribunal should reconsider that point in the light of all the
other relevant findings of fact already noted and of paragraph 6.21 of the Code.
brief the legal position is that
favourable treatment of a disabled person is only discriminatory under section
5(1) if it is unjustified.
is less favourable if the reason for it does not or would not apply to others.
deciding whether that reason does not or would not apply to others, it is not
appropriate to make a comparison of the cases in the same way as in the 1975
and the 1976 Acts. It is simply a case of identifying others to whom the reason
for the treatment does not or would not apply. The test of less favourable
treatment is based on the reason for the treatment of the disabled person and
not on the fact of his disability. It does not turn on a like-for-like
comparison of the treatment of the disabled person and of others in similar
act of dismissal from employment falls within section 5(1), but not within
section 5(2) and section 6; but an employee who has been dismissed may bring a
case under section 5 (2) for pre-dismissal discrimination involving a breach of
a section 6 duty.
section 5(2) claim for a breach of a section 6 duty is not dependant on
successfully establishing a claim under section 5(1). They are different causes
of action, even though, as recognised by section 5(3), they may overlap.
question whether treatment has been shown to be justified is a question of fact
to be determined on a proper self direction on the relevant law. Such a self
direction includes taking into account those parts of the Code of Practice
which a reasonable tribunal would regard as relevant to the determination of
would allow the appeal to the limited extent of holding that there was less
favourable treatment of Mr Clark within section 5(1)(a) and that there is no
need to remit that question for further consideration by the tribunal; but I
would order that the question of justification of the dismissal of Mr Clark
should be remitted to the same tribunal for rehearing in accordance with the
terms of this judgment. If necessary I would grant Novacold leave to amend
their cross appeal to seek such an order. As things have turned out the
critical question in this case is that of justification of the treatment. This
will also probably be the case with many other complaints under the 1995 Act.
JUSTICE ROCH: I agree.
JUSTICE BELDAM: I also agree.
Appeal allowed in part; case remitted to the Tribunal for the question to be
decided on the issue of justification. No order for costs. Legal aid taxation
of the Appellant's costs.
not part of approved judgment)
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