Williams v J Walter Thompson Group Ltd

In disability discrimination cases, an appellate tribunal must distinguish questions of law from permissible findings of fact and degree. It must not substitute its own view on the reasonableness of an employer’s conduct or on whether a reason is material and substantial. The tribunal must apply an objective standard to the employer’s reasons and the known circumstances, while respecting factual conclusions within the permissible range. Where an employer knowingly recruits a disabled person for a particular role, it must properly investigate the training, equipment and adjustments required to perform that role. Financial cost, technological difficulty and uncertainty may be relevant, but their weight depends on the circumstances and the adequacy of the employer’s investigation. Constructive dismissal caused by disability-related discriminatory conduct may itself constitute an act of disability discrimination.

Sue Williams, who was totally blind, was employed by J Walter Thompson Group Limited as a Worldwide IT Developer. She lacked experience of the employer’s Lotus Notes system and required training, adapted software and equipment. The employment tribunal found direct discrimination, failures to make reasonable adjustments and constructive unfair dismissal.

The Employment Appeal Tribunal allowed the employer’s appeal and remitted the discrimination claims for rehearing by a differently constituted tribunal. The Court of Appeal considered whether the Employment Appeal Tribunal had unlawfully substituted its own assessment of reasonableness and justification, and whether the constructive dismissal was itself discriminatory.

1. Appeal allowed. The Employment Appeal Tribunal had committed the sin of substitution. It had disturbed permissible conclusions of fact and degree on materiality, substantiality and justification, rather than identifying an error of law.
2. The employment tribunal had correctly directed itself in accordance with Jones v The Post Office [2001] IRLR 634 and was entitled to apply an objective standard to the employer’s reasons while deciding whether those reasons fell within the range of what a reasonable employer might rely on. An appellate body must not substitute its own view merely because it might have reached a different conclusion.
3. The unusual circumstances were material. JWT knowingly employed a totally blind person for work requiring Lotus Notes, knowing that training and adjustments would be needed, but failed properly to investigate the time and cost of training and the technological possibilities. The tribunal was entitled to find that the resulting treatment and failure to make adjustments were unjustified. The technological difficulties, time and cost did not automatically constitute material and substantial justification.
4. Following Collins v Royal National Theatre Board Limited [2004] IRLR 395, JWT faced the additional difficulty that circumstances relied on under the reasonable-adjustments duty could not also be relied on for the justification defence under section 5(4) of the Disability Discrimination Act 1995.
5. On the facts found, the discriminatory conduct was the effective cause of Ms Williams’s resignation. Applying Nottingham CC v Meikle [2004] IRLR 703, the constructive unfair dismissal was itself a discriminatory act relating to her disability under section 4(2)(d) of the Disability Discrimination Act 1995.
6. The employment tribunal’s decision was reinstated. A declaration was added that the constructive unfair dismissal was a further act of disability discrimination.

• Court of Appeal (Civil Division) [2005] EWCA Civ 133 allowed Ms Williams’s appeal, reinstated the employment tribunal’s decision, and added a declaration that the constructive unfair dismissal was a further act of disability discrimination.
• Employment Appeal Tribunal, on 19 November 2003, allowed JWT’s appeal from the employment tribunal and remitted the discrimination claims for rehearing by a differently constituted tribunal.
• Employment Tribunal found direct disability discrimination, failures to make reasonable adjustments and constructive unfair dismissal.