Bruce v Chamberlain & Anor Rev 1

Under the Disability Discrimination Act 1995, the duty to make reasonable adjustments addresses a particular disadvantage arising from disability. It does not require an employer to alter selection criteria to compensate for a disabled applicant’s lack of knowledge or experience where those criteria are unrelated to the disability. A generalised disadvantage in career development is insufficient. The applicant’s circumstances must fall within the specific statutory framework. A claim alleging breach of sections 5(2) and 6 may be struck out as misconceived where it has no reasonable prospect of success. The fact-sensitive nature of discrimination claims does not prevent strike-out where the legal defect is clear, although a distinct section 5(1) claim may remain.

Mr Bruce, a disabled solicitor, applied to Addleshaw Goddard for an employment-law post. He was not selected because he lacked relevant experience and knowledge, including knowledge of TUPE.

He alleged that the selection criteria should have been adjusted under sections 5(2) and 6 of the Disability Discrimination Act 1995. The Regional Chairman struck out that part of the claim under paragraph 15(2)(c) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2001. The Employment Appeal Tribunal upheld that decision in EAT/0404/2003/MAA, treating an earlier EAT decision concerning selection criteria as binding. The central issue was whether the proposed adjustments were legally arguable where the criteria were unrelated to the disability.

1. Permission refused. Lord Justice Wall refused permission to appeal to the Court of Appeal and formally refused permission to appeal to the House of Lords.
2. Paragraph 15(2)(c) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2001 permits an originating application to be amended or struck out where it is scandalous, misconceived or vexatious. Although discrimination cases are fact-sensitive, a claim may properly be struck out where the relevant legal contention has no reasonable prospect of success.
3. The section 6 duty under the Disability Discrimination Act 1995 concerns a particular substantial disadvantage in comparison with non-disabled persons which is connected with the disability. It does not require an employer to modify selection criteria merely because a disabled applicant lacks experience or knowledge required for the post. In the example given, knowledge of TUPE was an objectively relevant requirement and had no connection with disability. No section 6 duty therefore arose to alter that criterion.
4. The court did not need to resolve the abstract question whether a direct causal connection between disability and the criterion is always required. The criteria in issue were unrelated to disability, and the asserted general disadvantage in career development could not be translated into the specific statutory framework.
5. The court followed the reasoning in Bruce v Cavalier and Thompsons. It distinguished Mid-Staffordshire General Hospitals NHS Trust v Cambridge and Archibald v Fife Council, because those decisions concerned disability-related disadvantages in existing employment. They did not govern a case concerning an applicant’s failure to meet selection criteria unrelated to disability. The section 5(1) argument remained open, but the section 5(2) and 6 argument was misconceived.

• Court of Appeal (Civil Division): On renewed oral application, permission to appeal was refused under [2004] EWCA Civ 1047; permission to appeal to the House of Lords was also formally refused.
• Employment Appeal Tribunal: Judge McMullen QC upheld the strike-out of the section 5(2) and 6 claim and refused permission to appeal.
• Employment Tribunal: The Regional Chairman struck out part of the first originating application under paragraph 15(2)(c) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2001. The separate section 5(1) and victimisation complaints were not disposed of in the same way.