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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mallon v. Corus Constructions and Industrial [2003] UKEAT 0857_02_2909 (29 September 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/0857_02_2909.html Cite as: [2003] UKEAT 857_2_2909, [2003] UKEAT 0857_02_2909 |
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At the Tribunal | |
On 2 May 2003 | |
Before
HIS HONOUR JUDGE J BURKE QC
MRS C BAELZ
MR K EDMONDSON JP
APPELLANT | |
(A DIVISION OF CORUS UK LTD) |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MS CATRIN LEWIS (of Counsel) Instructed By: Disability Rights Commission 2nd Floor Arndale House The Arndale House |
For the Respondents | MS NAOMI ELLENBOGEN (of Counsel) Instructed By: Messrs Jacksons Solicitors Innovation House Yarm Road Stockton-on-Teess TS18 3TN |
HIS HONOUR JUDGE J BURKE QC:
The Facts and Issues
(1) That the Respondents were justified in refusing to employ Mrs Mallon in the job of shift nurse.
(2) That there were no reasonable adjustments which the Respondents could reasonably have been expected to carry out which would have altered that situation.
(3) (a) That the termination of the interview did not fall within the words of section 4(1)(a) of the 1995 Act because the termination of the interview was not itself an arrangement.
(b) The termination of the interview was in any event justified; since Dr Wilson was justifiably concerned that Mrs Mallon, because of her disability, could not be permitted to undertake the shift nurse's job, there was no point in continuing the interview which the Tribunal found would have "prolonged the agony" for Mrs Mallon.
(c) The termination of the interview did not put Mrs Mallon at a disadvantage.
The Termination of the Interview
"The word 'arrangements' has a wide meaning. Employers should avoid discrimination in, for example, specifying the job, advertising the job and the processes of selection, including the location and timing of interviews, assessment techniques, interviewing and selection criteria."
She draws attention to and relies upon the decision of the Employment Appeal Tribunal, presided over by Morison P, in Ridout v TC Group [1998] IRLR 628, in which it was accepted that the arrangements for the holding of an interview came within the meaning of arrangements for the purpose of that subsection. She argues that if an employer carried out an interview in a manner which disadvantages a disabled person – for example, by requiring a dyslexic to spell accurately – in so doing the employers would plainly be held to have discriminated under that subsection. By analogy she submits that terminating the interview prematurely is plainly part of the arrangements and that the Tribunal's decision to the contrary involves a misconstruction of the relevant statutory provision.
"It would be an act of crass irresponsibility to the applicant and every other worker in the respondent company to allow any insulin controlled diabetic to take up the job of shift nurse."
The Tribunal found that had Dr Wilson continued the interview to its ordinary end he would have had to have subjected Mrs Mallon to a medical examination. As Dr Wilson said, the outcome of that examination would have been inevitable. The Tribunal concluded that not to have terminated the interview would simply have prolonged the agony.
Refusal to Appoint
"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 circumstances 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. ... .
26 ... 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, ... 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."
Kay LJ agreed with the judgment of Pill LJ. Arden LJ also agreed; at paragraph 36, she said:
"36 Section 5(3) uses the words 'material' and 'substantial'. In my judgment, those words cover different subject matter. 'Material' denotes the quality of the connection which must exist between, on the one hand, the employer's reason for discriminating against the employee and, on the other hand, the circumstances of the particular case. The circumstances of the particular case may include those of both the employer and employee. ... Under section 5(3), this connection must be 'material'."
And at paragraph 39, she continued:
"39 The second requirement in section 5(3) is that the reason should be 'substantial'. This means, in my judgment, that the reason which the employer adopted as his ground for discrimination must carry real weight and thus be of substance. ... It is sufficient if their conclusion is one which on a critical examination is found to have substance. Thus a reason which on analysis is meretricious would not be a 'substantial' reason. It would fail to meet the test in section 5(3)."
"28 It is clear that an Employment Tribunal is not permitted to substitute its views as to the merits of the decision of a prospective employer for those of the prospective employer. However, an employer must make such enquiries as are appropriate in the circumstances of the case. These circumstances are bound to vary infinitely."
And the EAT continued, in paragraph 29, as follows:-
"An Employment Tribunal should only interfere where the prospective employer's investigations are outside the reasonable range of responses by a reasonable prospective employer, in the circumstances."
Reasonable Adjustments
Conclusion