Lord Justice Sedley
This appeal raises a new and sharp question of discrimination law: can an employer's failure to make adjustments to accommodate a disabled employee be unreasonable but justified?
In the Disability Discrimination Act 1995 (the DDA), s.4 makes it unlawful for an employer to discriminate against a disabled person by, among other things, dismissing him. Section 5 then defines discrimination:
The employer's s.6 duty is the following:
The DDA by s. 53A(1) (introduced by the Disability Rights Commission Act 1999) provides for the Disability Rights Commission to "prepare and issue codes of practice giving practical guidance on how to avoid discrimination". As further amended, subsection (8) makes it clear that breach of the code by itself confers no rights, but subsection (8A) provides that a tribunal must take into account any provision of the code which appears to it to be relevant.
An unfair dismissal, under s.98 of the Employment Rights Act 1996, occurs either when none of the potentially fair reasons for the dismissal (which include incapacity) is shown or when the employer has not acted reasonably in treating the reason he has established as a sufficient reason for dismissal.
Changes to the legislation
The justification defence afforded by s.5(4) has been removed from the DDA with effect from 1 October 2004 by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (S.I. 1673). The justification defence afforded by s.5(3) will, however, remain. The present case is therefore one of a substantial but now diminishing residue.
It is relevant to see the form which the new provision is to take. In place of s.5, s.4 is to be preceded by a new section 3A:
The history of this change is material to what we have to decide. As long ago as 1999 a ministerial task force reported that, while the s.5(3) defence of justification of less favourable treatment should be retained, subject to monitoring and possible adjustment by Regulation, the s.5(4) defence of justification of unreasonable failure to make adjustments seemed - judging by the examples given in the Code of Practice - to travel over the same issues as would already have been decided under s.6. They recommended that the justification defence to a breach of s.6 should be removed and the Code modified so as to allocate its examples to the s.6 exercise.
Government's published response was this:
When legislative time allows, we will .... remove the justification for failure to make a reasonable adjustment because this defence can be entirely covered by the need for adjustments only to be reasonable ....
It is both in fulfilment of this commitment and in order to comply with the Framework Directive on Discrimination 2000/78/EC that the amending Regulations cited above have now been introduced.
Mr Collins, who was born in 1938, was for 18 years a semi-skilled carpenter's labourer in the National Theatre's carpentry shop. All the other workers there were time-served skilled tradesmen. On 11 February 2000 he lost about a third of the distal phalanx of his right ring finger when, instead of using a push-stick as he knew he should do, he used his hand to flick away an offcut from a powered bench saw. It was the workshop's first serious accident in the 12 years the head carpenter had been there. The wound healed but with painful neuromas which made the hand - Mr Collins' dominant hand - clumsy. His hand surgeon advised surgery, which offered a better than even chance of success, but Mr Collins' GP was against it, even though on the suggestion of the National Theatre he was shown the surgeon's report. Mr Collins therefore refused surgery, and in the resulting situation the National Theatre terminated his employment. Before doing so they had set up a series of controlled tasks to assess his capability with particular regard to safe working. The employment tribunal found this to have been done fairly and objectively. It resulted in what were found to be "genuine and appropriate concerns" that Mr Collins could no longer work efficiently or safely. A meeting with Mr Collins and his union representative followed under the theatre's long-term sickness procedure, but in the light of a disability for which Mr Collins would still not countenance surgery it was concluded that there was simply no job to which he could return.
The employment tribunal nevertheless concluded that although a permitted reason for the dismissal - incapacity - had been established, it had been both discriminatory and unfair to dismiss Mr Collins. They considered that the National Theatre's focus had been on what Mr Collins could not do, and that it "could have done significantly more in the direction of seeing what adjustments could be made to accommodate" him and enable him to "grow back into the job" (para. 27). Their finding that, albeit marginally, he was disabled within the meaning of the DDA has not been challenged; nor has their finding that the National Theatre was in breach of s.6., sympathetic though one may be to its position.
But the National Theatre on appeal successfully challenged the tribunal's twin conclusions that the dismissal had been discriminatory and unfair. The EAT, in a careful judgment delivered by Mr Commissioner Howell QC, considered that the decision in Jones v Post Office  EWCA Civ 558,  IRLR 384 of this court (Pill, Arden and Kay LJJ), while troubling in its effect, was indistinguishable in principle. They remitted the claims for determination accordingly.
The decision in Jones v Post Office
Jones concerned the dismissal of a Post Office driver who had developed first diabetes and then heart disease. He claimed disability discrimination when he was taken off driving duties as all insulin-dependent Post Office employees were. But he had been subsequently offered limited driving duties, and the Post Office conceded that the complete bar had been discriminatory. The tribunal found that the limited offer was also discriminatory; but the EAT and this court held that they had approached their decision on the erroneous footing that it was for them to say, having heard medical evidence on both sides, whether the employer's decision to set the proposed limit on the employee's driving was justified or not. The decision of this court was
that materiality and substantiality were all that justification required, and
that what was material and what was substantial was for the employer to decide, the tribunal's only power being to decide whether the decision fell within the range of reasonable responses to the known facts.
It is right to say that the consequent threshold of justification has been consistently recognised as a surprisingly low one. The EAT in the present case described it as "not very demanding". But it is also right to say that the facts in Jones clearly warranted the outcome, because the employment tribunal had decided the case on medical evidence obtained after the employer had made its decision. I will return to the question of how, jurisprudentially, that outcome was reached.
The subsections in play in Jones were (1) and (3). Those in play in this case are (2) and (4). In Jones (para.6) Pill LJ recorded:
A second form of discrimination is defined in s.5(2) and s.6. It is common ground that consideration of those provisions does not now arise in this case.
Jones having been decided on this deliberately restricted footing, Pill LJ in the present case gave permission to appeal so that a differential construction could be argued.
In giving permission Pill LJ remarked that the applicant's difficulties should not be underestimated. This was plainly right so far as any merely textual difference is concerned: the reason why there is not a single definition of justification for both subsection (1) and subsection (3) appears at first sight to be simply stylistic. The one provision concerns treatment; the other concerns failure to do something; both require justification, but a unitary definition would require verbose provision of a kind which modern parliamentary drafters rightly try to avoid, at least in legislation of this kind. Two subsections, Richard Lissack QC for the National Theatre submits, simply make a unitary test more comprehensible.
But on examination there may well be more than draftsmanship involved. There is a substantive difference too. Subsections (1) and (3) concern unjustified treatment of a disabled employee. While by virtue of subsection (5) treatment for this purpose is to be tested by an element derived from the s.6 duty, it is there precisely to prevent an employer from taking advantage of his own unreasonable failure to accommodate a disabled employee.
Subsections (2) and (4), by contrast, are there to deal specifically with discrimination which takes the form of an unjustified breach of the s.6 duty. They start, therefore, from a point at which the employer has been shown to have failed to take such steps as were reasonable to prevent the disability resulting in substantial disadvantage.
The test of reasonableness under s.6, as is rightly accepted on both sides, must be objective. One notes in particular that s.6(1)(c) speaks of "such steps as it is reasonable .... for him to have to take". One approaches s.5(2) and (4), therefore, on the footing that the tribunal will already have found the employer's failure to accommodate the employee's disability to be objectively unreasonable. If, however, justification under subsection (4) has the same threshold as this court ascribed to subsection (2) in Jones, it will be a sufficient answer if the employer had a reason for the failure which he himself considered, without irrationality but erroneously, to be material and substantial. Hence the question posed in the first paragraph of this judgment. Put as Catherine Rayner, junior counsel for Mr Collins, puts it in her excellent skeleton argument, can an employer resurrect as a justification for his non-compliance a ground for not accommodating his disabled employee which the tribunal have already rejected as unreasonable?
Towards the conclusion of argument Lord Justice Brooke asked Mr Lissack whether his case was that the same test of justification applied
to discriminatory treatment, which by s.5(1) is established without any regard to reasonableness, and
to failure to make reasonable adjustments, which by s.6 only arises when "all the circumstances of the case" - including the employer's own state of mind - have been explored, evaluated and balanced as the statute and Regulations require. Mr Lissack's candid assent demonstrated how stark the problem is.
There are a number of avenues to a solution. Although some are no longer open to us at this level and some have not been canvassed before us, it is worth noting them all, since our decision may not be the end of this particular road.
First, materiality and substantiality might be necessary but not sufficient conditions of justification. Although not argued before us, this is in my present view an intelligible meaning of the words in subsections (3) and (4). Pill LJ noted in his judgment in Jones (para. 21) that in H J Heinz & Co Ltd v Kenrick  IRLR 144 Lindsay J had "flirted with" this idea before rejecting it, and the rejection now has this court's imprimatur in Jones. If it were not thus concluded I would want to think about it again. The phrase "but only if" is the language of necessity, not of sufficiency. "If", by contrast, is the language of both: it can mean " provided only that" and it can mean "provided at least that".
There is a further element which was not examined in Jones. The clear purpose of s.5(5) is to deny to an employer who has treated a disabled employee less favourably than others any defence of justification which depends directly or indirectly on a breach by the employer of his s.6 duty to make adjustments. How is this meant by Parliament to operate on s.5(3)? In its terms it has to do neither with materiality nor with substantiality, though it could have been so phrased that it did: ".... cannot be material under subsection (3) unless ....", for example. This too suggests that justification may be more than the sum of materiality and substantiality.
Secondly, both subsections might make the tribunal the arbiter of what is material and what is substantial. But this court in Jones was unanimous in rejecting such a construction of s.5(3). Pill LJ (para. 25) concluded:
Upon a consideration of the wording of s.5(3) in context, I conclude that the employment tribunal are confined to considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial.
Arden LJ (para. 35, 41) put it in this way:
It is clear from the wording of s.5(3) that the standard by which the employer's reason is to be reviewed is an objective one. This case has raised the novel question of the intensity of that review .... If credible arguments exist to support the employer's decision, the employment tribunal may not hold that the reason for the discrimination is not 'substantial'.
The present difficulty with the decision in Jones is that, because it took s.5(3) in conscious isolation from s.5(4), the possible impact of the latter on the former was not considered. The third possibility, however, is that the impact of s.6 on subsections 5(2) and (4) is such that the reading of s.5(3) has to be brought into line with it. This too has not been urged upon us by Mr Allen. He is content for the present to leave Jones where it is. It is Mr Lissack who argues that, taking the decision in Jones as given, as we must, there is no daylight between the subsection in issue there and the one in issue here: their key wording is identical. If Mr Allen had sought to meet this challenge frontally, it would have been necessary to consider whether the principle of stare decisis prevented us from considering the argument.
What Mr Allen does urge upon us is a fourth, and in the alternative a fifth, course. His principal submission is that we should adopt a differential interpretation of subsections (3) and (4). The alternative submission, spelt out in Ms Rayner's skeleton argument, is that we should qualify the decision in Jones by excluding from the process of justification under subsection 5(4) anything already rejected by the tribunal as unreasonable under s.6(1). For reasons to which I will come, these seem to me to be two sides of one coin.
It is undoubtedly open to us in the light of the specificity of the argument and reasoning in Jones to read s.5(4) in a different sense from s.5(3). Mr Lissack does not contend otherwise. His argument is that we would be unjustified in doing so.
Mr Lissack's junior Andrew Short has helpfully set out in his skeleton argument the series of issues which arise respectively under subsection (1) and subsection (2). Their parallelism, he submits, argues strongly against a differential construction:
Under s. 5(2):
Was there a duty to adjust? If yes
Did the employer fail to comply with that duty? If yes
Was the failure to comply justified?
Was there less favourable treatment for a reason relating to the disabled person's disability? If yes
Was the less favourable treatment justified? If yes
In cases where there has also been an unjustified failure to comply with the duty to adjust, would the less favourable treatment still have been justified had the employer complied with the duty to adjust?
But are the two provisions parallel or analogous? Mr Short's analysis of s. 5(2) in my view omits something crucial: a failure to comply with the duty to adjust can only occur if the employer's response has fallen short of what it was reasonable for him to do. There is no such qualitiative element to s.5(1): the bare fact of less favourable treatment is all that is required to establish discrimination. The question then is whether Parliament can possibly have meant, by enacting s.6 with s.5(2) and (4), to allow an unreasonable failure to accommodate an employee's disability to be justified so long as the employer tenably regarded it as immaterial or insubstantial. If not, but if Jones is to be respected, the solution has to be a differential meaning.
Mr Lissack contends that this is not open us. He advances two main reasons. One is that the only differential meaning which is available is one which renders s.5(4), so far as anyone can see, otiose. The other, its mirror image, is that Parliament's election to keep a justification defence to a breach of s.6 on the statute book until October 2004 has been made in the knowledge that informed commentators considered s.5(4) not to be otiose and to require repeal for that very reason. We are faced, he submits, with a triple choice: to treat s.5(4) as a dead letter; to import into it an improvised ringfence to prevent the s6 findings from being circumvented; or to give s.5(4) exactly the meaning given to s.5(3) in Jones. He accepts that there is in fact a fourth choice - to give s.5(4) a role but to make the test of materiality and substance an objective one for the tribunal itself to apply - but argues that to do that would be to overset Jones by stealth; and Mr Allen has not invited us to do this.
In my judgment the only workable construction of s.5(4), in the context of the DDA and its manifest objects, is that it does not permit justification of a breach of s.6 to be established by reference to factors properly relevant to the establishment of a duty under s.6. In other words, the meaning of the closely similar words in the two adjacent subsections is materially different. In s.5(4), what is material and substantial for the purposes of justifying an established failure to take such steps as are reasonable to redress disadvantage cannot, consistently with the statutory scheme, include elements which have already been, or could already have been, evaluated in establishing that failure. That this departs significantly from the meaning and effect of s.5(3) is fully explained by the fact that justification under s.5(3) starts from a form of discrimination - less favourable treatment - which is established without the need of any evaluative judgment.
Such differential construction is no doubt rare and to be avoided - Mr Lissack may therefore be right to call it extraordinary - but it is not impermissible if there is no other way to give effect to Parliament's intention. Bennion Statutory Interpretation (4th ed.) at 992-5 stresses the presumption against holding words in an Act to be idle but also cites judicial decisions which have had to go against the presumption. Some of these contain comments about Parliamentary drafting far sharper than anything deserved by the drafter of the DDA which is, as both counsel have stressed, pioneering social legislation always known to be in need of monitoring and review. If absolutely necessary, words may have to be held to be idle.
Here, however, the choice is by no means so stark. Even though, as the task force pointed out and as government accepted, all the examples given in the Code of the operation of s.5(4) are more relevant to s.6 than to s.5(4), there is no reason to think that no circumstances can ever arise in which factors not apt for consideration under s.6 prove material and substantial under s.5(4); and if they do, the justification defence is there to accommodate them. In that event, s.5(4) will operate as this court in Jones has held that s.5(3) operates: anything else would be disruptive of precedent.
The reason why it seems to me that s.5(4) needs to be construed as I have proposed above and not as simply excluding those factors which have in the event been canvassed under s.6 is this. To leave to the respondent in the employment tribunal the choice of where to deploy its arguments will place respondents' advisers in an invidious professional and ethical position, and respondents themselves in a forensic situation in which guile pays. Rather than risk forfeiting a ground for not accommodating an employee's disability by having it objectively rejected under s. 6, an employer would gain a tactical advantage by admitting - indeed asserting - a marginal ground of failure to take reasonable steps and then advancing his full case, which might have failed under s.6, by way of justification under s.5(4).
It follows that the extant statutory provision about discrimination by failure to make adjustments has something close to the shape which it will explicitly acquire when the amendments come into force in October 2004. As it happens, that is also the shape adumbrated in the original
White Paper (Cm 2729, January 1995), which proposed a justification defence for less favourable treatment but not for failure to make reasonable adjustments. What is now s.5(4) was not in the initial Bill but, we are told, entered it just prior to the report stage of its passage in the House of Lords. For the present, the justification which it affords of a failure to make reasonable adjustments is not ruled out but is, on a proper reading of the DDA, heavily restricted.
This makes it unnecessary to address the more modest solution offered by Mr Allen to the present case. He suggests that the employment tribunal's findings of fact are such that the National Theatre cannot on any view of the meaning of s.5(4) establish justification. The full passage of their extended reasons, from which I earlier quoted briefly, is as follows:
On these findings, he submits, the National Theatre has failed to surmount even the modest hurdle set by Jones, because its belief that there was now no feasible role for Mr Collins was not based on any "genuine examination of what modifications to equipment could have been available to help him". In other words, it was not a reasonably held belief. That such a belief fails to get over the threshold for justification emerges, Mr Allen submits, from the two principal judgments in Jones. It must equally be part of the inquiry proposed by Pill LJ at paragraph 25 (can the employer's reason be properly described as material and substantial?) and that proposed by Arden LJ at paragraph 39 (does the employer's reason on critical examination have substance?). A reason based on no genuine examination of whether the disabled employee could be accommodated by modifying the equipment in the workshop, it is submitted, passes neither of these tests.
The National Theatre's cup of woe is already full, and I see no need to make it brim over with the consequences of the employment tribunal's findings of fact. Mr Collins is entitled to succeed because everything going to justification was subsumed in the finding that a s.6 duty existed and was breached, leaving no room for a defence under s.5(4). That is enough.
We have heard no argument on unfair dismissal, and I say nothing about it.
I would allow the appeal by restoring the employment tribunal's decision that Mr Collins' claim under the Disability Discrimination Act 1995 is well-founded and by remitting the claim for a decision on remedy.
Lord Justice Latham
Lord Justice Brooke
I also agree.
Robin Allen QC and Catherine Rayner (instructed by Thompsons) for the Appellant.
Richard Lissack QC and Andrew Short (instructed by Ann Cutting [Employment]) for the Respondent.
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