Collins v National Theatre

The Court of Appeal held that an employer's failure to make reasonable adjustments under section 6 of the Disability Discrimination Act 1995 cannot be justified under section 5(4) by reference to factors which have already been or could have been evaluated and rejected in establishing that breach. The court interpreted the statutory scheme so that justification under s.5(4) is materially narrower than the justification test in s.5(3) (considered in Jones v Post Office), because s.5(4) starts from an objectively established unreasonable failure to comply with the s.6 duty. The tribunal's finding that the respondent had breached s.6 therefore left no room for a successful s.5(4) defence in this case; accordingly the tribunal's decision that the dismissal was discriminatory was restored and the matter was remitted for remedy.

Background and parties: The appellant, Mr Sidney Collins, a long-serving semi-skilled carpenter's labourer at the National Theatre, suffered a disabling injury to his dominant hand. The respondent was the Royal National Theatre Board Limited.

Nature of the claim and procedure: Mr Collins claimed disability discrimination under the Disability Discrimination Act 1995 and also asserted unfair dismissal. An employment tribunal found he was disabled and that the National Theatre had breached its s.6 duty to make reasonable adjustments; it concluded the dismissal was discriminatory and unfair. The Employment Appeal Tribunal (EAT) allowed the employer's challenge as to discrimination and remitted the matter following the Court of Appeal's decision in Jones v Post Office [2001] EWCA Civ 558. The case came to the Court of Appeal on the question whether an employer's failure to make adjustments can be "unreasonable but justified" under s.5(4).

Issues framed:

• Whether justification under s.5(4) of the DDA can be established by reference to reasons that the tribunal has already found objectively unreasonable when deciding the s.6 duty.
• How s.5(4) should be construed in relation to s.5(3) and the decision in Jones v Post Office.

Court's reasoning: The court analysed the statutory text and purpose. It observed that s.5(3) and Jones treat justification of less favourable treatment with a low threshold (material and substantial), and allocate a measure of deference to employer judgment. By contrast s.5(4) concerns an already established failure to comply with s.6. The court concluded that permitting an employer to justify such a breach by relying on the very factors found unreasonable under s.6 would undermine the statutory scheme and create perverse tactical incentives. Accordingly s.5(4) must be construed more narrowly: factors which have been or could have been considered and rejected in the s.6 inquiry cannot later be relied on to justify the breach. The court further noted that legislative amendments shortly to remove this justification defence rendered its restrictive reading consistent with Parliamentary intention.

Disposition: The Court of Appeal allowed the appeal, restored the employment tribunal's finding that the dismissal was discriminatory under the DDA and remitted the claim for determination of remedy. The court did not decide the unfair dismissal claim.

Appeal allowed. The Court held that s.5(4) of the Disability Discrimination Act 1995 cannot be used to justify an employer's breach of the s.6 duty by relying on matters which have already been, or could have been, evaluated and rejected when establishing that breach; therefore the employment tribunal's finding of discrimination was restored and the matter remitted for remedy.

On appeal from the Employment Appeal Tribunal (decision given by Mr Commissioner Howell QC), which had set aside the employment tribunal's discrimination finding and remitted the claim after applying Jones v Post Office [2001] EWCA Civ 558; the Court of Appeal restored the employment tribunal's decision and remitted for remedy. Neutral citation: [2004] EWCA Civ 144.