Collins v Royal National Theatre Board Ltd

An employer cannot justify a breach of the duty to make reasonable adjustments by relying on factors which were, or could have been, evaluated when deciding whether the employer had taken all objectively reasonable steps. Such factors cannot be revived under the former justification defence in section 5(4) of the Disability Discrimination Act 1995.

The defence remains available only where a material and substantial reason falls outside the reasonable-adjustment inquiry. In that limited situation, the employer's reason is reviewed according to the standard applicable to justification of less favourable treatment. Identical statutory language may exceptionally receive different meanings where this is necessary to give effect to the statutory scheme.

A carpenter's labourer suffered an injury which left his dominant hand painful and clumsy. After capability assessments and his refusal of further surgery, his employer concluded that he could no longer work safely or efficiently and dismissed him.

The employment tribunal found that the dismissal was discriminatory and unfair. Although the assessment had been fair, the employer had not sufficiently investigated equipment modifications or allowed the employee to regain fitness and grow back into his job. The Employment Appeal Tribunal allowed the employer's appeal, holding that Jones v Post Office [2001] EWCA Civ 558 required the failure to make adjustments to be reconsidered under a relatively undemanding justification test.

The central question was whether an objectively unreasonable failure to make reasonable adjustments could nevertheless be justified under section 5(4) of the Disability Discrimination Act 1995.

1. Appeal allowed unanimously. The employment tribunal's decision that the disability discrimination claim was well-founded was restored. The claim was remitted for determination of the remedy.

2. The reasonableness of adjustments under section 6 of the Disability Discrimination Act 1995 is determined objectively. Before finding a breach, the tribunal must explore, evaluate and balance all the relevant circumstances. These include the employer's state of mind and the statutory considerations concerning effectiveness, practicability, cost, disruption, resources and available assistance.

3. Section 5(4) could not permit an employer to justify an established section 6 breach by relying upon matters which had already been, or could have been, evaluated in deciding whether reasonable steps were required. Otherwise, an employer could revive as justification a reason which had failed the objective reasonableness inquiry. It could also gain a tactical advantage by withholding its substantive case until the justification stage.

4. Jones v Post Office [2001] EWCA Civ 558 concerned sections 5(1) and 5(3), and deliberately excluded sections 5(2), 5(4) and 6. It therefore did not determine the present issue. Less favourable treatment under section 5(1) contains no initial evaluative element, whereas a section 5(2) breach presupposes an objectively unreasonable failure to make adjustments. That substantive difference justified giving the similar language in sections 5(3) and 5(4) different meanings.

5. The section 5(4) defence was not wholly redundant. A factor which was not apt for consideration under section 6 could still justify the breach if it was material and substantial. For such a factor, the approach in Jones continued to govern. The defence was therefore available, but heavily restricted.

6. All matters advanced as justification in this case were subsumed within the finding that the section 6 duty had been breached. Nothing remained capable of establishing the section 5(4) defence. The court heard no argument and expressed no view about unfair dismissal.

1. Court of Appeal (Civil Division): Allowed the employee's appeal unanimously, restored the employment tribunal's decision that the claim under the Disability Discrimination Act 1995 was well-founded, and remitted the claim for determination of the remedy.

2. Employment Appeal Tribunal: Allowed the employer's appeal, regarded Jones v Post Office [2001] EWCA Civ 558 as indistinguishable in principle, and remitted the discrimination and unfair-dismissal claims for determination.

3. Employment tribunal: Found that the employee was disabled, that the employer had breached its reasonable-adjustment duty, and that the dismissal was discriminatory and unfair.