Williams v J Walter Thompson Group Ltd

The Court of Appeal allowed Ms Williams's appeal and reinstated the employment tribunal's findings that J Walter Thompson Group Ltd (JWT) had unlawfully discriminated against a totally blind employee contrary to the Disability Discrimination Act 1995 (notably ss.5 and 6) and that JWT constructively unfairly dismissed her. The tribunal had found that JWT, having employed the claimant knowing she was blind and unfamiliar with Lotus Notes, failed to investigate properly or to provide reasonable adjustments, including adequate training, appropriate software (JAWS scripting and Lotus Notes adaptation) and suitable work.

The court held that the Employment Appeal Tribunal erred in law by substituting its own view for the employment tribunal's permissible findings of fact and degree on materiality and substantiality in the justification defence. The tribunal had applied the objective "band/range of reasonable responses" test derived from Jones v The Post Office and reasonably concluded JWT's reasons (time, cost and uncertainty) were not material and substantial given JWT's earlier failure to investigate and to take reasonable steps.

This was an appeal from an Employment Appeal Tribunal decision which had allowed the employer's appeal and remitted the case for rehearing. The underlying claims, determined at first instance by an employment tribunal, were (i) direct disability discrimination under s.5(1) of the Disability Discrimination Act 1995, (ii) discrimination by failure to make reasonable adjustments under ss.5(2) and 6, and (iii) constructive unfair dismissal under s.95(1)(c) of the Employment Rights Act 1996.

The claimant, a totally blind woman with relevant IT qualifications, was employed by JWT in September 1999 as a Worldwide IT Developer. JWT knew she was blind and that she lacked Lotus Notes experience. The employment tribunal found JWT ill prepared for her start: required equipment and software (JAWS scripting and a compatible Lotus Notes installation), adequate training and suitable alternative work were not provided for about two years. The tribunal concluded there was direct discrimination (less favourable treatment) in respect of training, provision of software, and suitable work, and a breach of the s.6 reasonable adjustments duty. It also found constructive unfair dismissal and, on the facts, that the resignation was occasioned by discriminatory conduct.

Issues before the Court of Appeal included (i) whether the employment tribunal properly applied the s.5(1) direct discrimination test and the s.6 reasonable adjustments duty, (ii) whether the employer could rely on the justification defences in ss.5(3), (4) and (5) (as then in force), and (iii) whether the Employment Appeal Tribunal had erred by substituting its own view for the tribunal's findings on materiality and substantiality.

The Court of Appeal held that the employment tribunal had correctly applied the law (following Jones v The Post Office) and that the Employment Appeal Tribunal had committed the "sin of substitution" by overturning permissible findings of fact and degree. The court therefore restored the employment tribunal's decision, declaring that the constructive unfair dismissal also constituted an act of disability discrimination within s.4(2)(d) of the 1995 Act (as interpreted in Meikle). The judgment noted the exceptional factual matrix: JWT had employed a blind person to do a job which required equipment and training it failed to secure or to investigate properly, and that this context bore directly on the availability of the justification defence.

Appeal allowed. The Court of Appeal reinstated the employment tribunal's findings that JWT had directly discriminated against Ms Williams and breached the s.6 duty to make reasonable adjustments by failing to provide necessary training, acquire or adapt software and to provide suitable work. The appellate court held that the Employment Appeal Tribunal had erred by substituting its view for the employment tribunal on issues of materiality and substantiality relevant to justification; on the facts the employer's asserted reasons were not within the band of reasonable responses and justification failed. The court further declared that Ms Williams's constructive unfair dismissal was itself an act of disability discrimination under s4(2)(d) of the Disability Discrimination Act 1995.

Appeal from the Employment Appeal Tribunal (order dated 19 November 2003) which had allowed J Walter Thompson Group Ltd's appeal against the employment tribunal and remitted the case for rehearing. The Court of Appeal ([2005] EWCA Civ 133) allowed Ms Williams's appeal and reinstated the original employment tribunal decision, adding a declaration that the constructive dismissal was an act of disability discrimination.