Smith v Churchills Stairlifts Plc

An employer’s arrangements include implied conditions governing access to employment and the circumstances in which an offer may be withdrawn. Whether those arrangements substantially disadvantage a disabled person must be assessed against a limited class identified by reference to the disadvantage caused, rather than the non-disabled population generally.

The reasonableness of an adjustment is determined objectively by the tribunal. This differs from justification, which asks whether the employer’s reason was material, substantial and supportable. An employer’s commercial reason may satisfy the latter standard while an adjustment remains objectively reasonable. If an unjustified failure to make that adjustment occurs, Disability Discrimination Act 1995 section 5(5) also governs whether the associated less favourable treatment can be justified.

The appellant, who had lumbar spondylosis, applied to sell radiator cabinets. The respondent offered him a place on a training course but withdrew it after deciding that every salesperson should carry a full-sized cabinet weighing about 25 kilograms. The respondent did not test the appellant’s ability or properly consider his suggested alternative sales methods.

The Employment Tribunal found less favourable treatment related to disability but, by a majority, held that no duty to make reasonable adjustments arose. It compared the appellant with the non-disabled population generally. Alternatively, it found that permitting alternative sales methods for a trial period would have been a reasonable adjustment. The Employment Appeal Tribunal, in EAT/0674/04/CK, dismissed the appeal because it considered that alternative finding inconsistent and perverse.

The central issues were the identification of the employer’s “arrangements”, the appropriate comparator under section 6 of the Disability Discrimination Act 1995, and the relationship between objective reasonableness and justification.

1. Appeal allowed unanimously; cross-appeal dismissed. The Court substituted findings of discrimination under sections 5(2) and 5(1) of the Disability Discrimination Act 1995. The claim was remitted to the Employment Tribunal solely to determine the remedy.

2. The relevant “arrangements” were not confined to the requirement that a salesperson carry a full-sized radiator cabinet. Following Archibald v Fife Council [2004] UKHL 32, they included the implied condition that the appellant had, or was believed to have, that ability and the resulting susceptibility of his training offer to withdrawal. Arrangements may therefore include implied conditions governing access to employment and liability to adverse employment action.

3. The comparator must be identified by reference to the disadvantage caused by the relevant arrangements. The Employment Tribunal erred by comparing the appellant with the non-disabled population generally. The proper comparison was with the limited class of candidates admitted to the course who were not rejected through inability to carry the cabinet. The arrangements inevitably placed the appellant at a substantial disadvantage.

4. The section 6 reasonableness inquiry is objective. The tribunal must decide for itself what steps it was reasonable for the employer to take, having regard to the statutory considerations. By contrast, justification under section 5 concerns whether the employer’s reason was material, substantial and supportable. A tribunal may therefore accept that an employer’s commercial view justified treatment when considered under section 5 in isolation, yet conclude that an adjustment was objectively reasonable under section 6.

5. The Employment Tribunal permissibly found that allowing the appellant to use alternative sales aids during a trial period was reasonable. Its acceptance of the respondent’s commercial concerns for the different purpose of justification created neither inconsistency nor perversity. Once the reasonable-adjustment duty and its breach were established, section 5(5) required consideration of whether the less favourable treatment would have been justified had the duty been complied with.

6. The respondent’s tentative mention of possible stairlift sales was not a firm adjustment proposal. It did not discharge the obligation to make other reasonable adjustments enabling the appellant to sell radiator cabinets. The Employment Appeal Tribunal had accordingly erred in overturning the Employment Tribunal’s alternative finding.

1. Court of Appeal (Civil Division): Allowed the appeal unanimously and dismissed the cross-appeal. It substituted findings that the respondent had discriminated contrary to sections 5(2) and 5(1) of the Disability Discrimination Act 1995, and remitted the claim solely on remedy: [2005] EWCA Civ 1220.
2. Employment Appeal Tribunal: Dismissed the appellant’s appeal. It held that the Employment Tribunal’s alternative reasonable-adjustment finding was internally inconsistent, perverse and insufficiently reasoned: EAT/0674/04/CK.
3. Employment Tribunal: By a majority, dismissed the disability-discrimination claim. It unanimously dismissed the victimisation claim as out of time. It nevertheless found, in the alternative, that a trial using alternative sales methods would have been a reasonable adjustment.