Post Office v Jones

Under section 5(3) of the Disability Discrimination Act 1995, an employer’s reason for disability-related less favourable treatment must have a sufficiently strong connection with the particular circumstances and must carry real weight. The tribunal conducts an objective review, but does not decide afresh what action would have been best.

A properly conducted risk assessment, based on competent expert evidence and producing a supportable, non-irrational conclusion, cannot be displaced merely because the tribunal prefers another expert opinion. Later evidence does not retrospectively invalidate treatment based on all evidence reasonably available when the decision was made. It may, however, require reconsideration and affect whether continued treatment remains justified.

The appellant, an insulin-treated employee who drove a rural delivery van, was removed from driving and later offered limited driving duties. He rejected a restriction confining driving duty to two hours in any 24-hour period.

The Employment Tribunal held that the restriction was unjustified discrimination under section 5(1) and (3) of the Disability Discrimination Act 1995. It preferred the employee’s medical evidence and made its own assessment of the driving risk. The Employment Appeal Tribunal set aside that finding and directed a rehearing before a differently constituted tribunal if the parties could not resolve the matter.

The central issue was the intensity of an employment tribunal’s review when deciding whether an employer’s risk-based reason for less favourable treatment was material and substantial under section 5(3).

1. Appeal dismissed unanimously. Pill LJ delivered the leading judgment. Kay LJ agreed entirely, and Arden LJ agreed with both judgments. The Employment Appeal Tribunal had correctly set aside the Employment Tribunal’s finding and recommendation concerning the disputed driving restriction. Its order for reconsideration by a differently constituted tribunal was left undisturbed.

2. Section 5(3) of the Disability Discrimination Act 1995 imposes an objective test. The tribunal must determine whether the employer’s reason is material to the circumstances of the particular case and substantial. Those conditions are both necessary and sufficient for justification.

3. Per Pill LJ, where the reason rests on a risk assessment, the tribunal may investigate whether an assessment was undertaken, whether appropriate expert evidence supported it, and whether the resulting decision was irrational. Where the assessment was properly conducted, relied on suitably qualified and competently expressed medical opinion, and produced a reason which was facially material, substantial and non-irrational, the tribunal could not substitute its own medical or risk assessment.

4. Per Arden LJ, “material” concerns the quality of the connection between the employer’s reason and the circumstances of the employer and employee. The connection must be reasonably strong. “Substantial” means that the reason carries real weight and survives critical examination. The employer need not reach the best conclusion permitted by all medical knowledge. Justification is established where credible arguments support the decision; a reason outside the range available to a reasonable employer lacks substance.

5. Per Kay LJ, evidence unavailable to the employer at the time does not retrospectively make the original treatment unjustified if the employer considered all evidence reasonably available, including sufficiently qualified medical evidence. New contrary evidence may be submitted for reconsideration. A failure thereafter to consider it may cause continued treatment to cease to be justified.

1. Court of Appeal: Dismissed the appeal in [2001] EWCA Civ 558. It upheld the setting aside of the Employment Tribunal’s Period C finding and left in place the conditional remission for rehearing.
2. Employment Appeal Tribunal: Allowed the employer’s appeal in part, set aside the finding of discrimination and recommendation concerning Period C, and ordered a rehearing before a differently constituted tribunal if no satisfactory resolution was reached.
3. Employment Tribunal: Held that the two-hour driving restriction during Period C was unjustified disability discrimination and recommended restoration of the appellant’s driving duties.