Morse v Wiltshire County Council
| Jurisdiction | UK Non-devolved |
| Date | 1998 |
| Court | Employment Appeal Tribunal |
Discrimination, Disability - Employment - Duty to make adjustments - Employee's disability preventing driving - Employer selecting for redundancy on criterion of possession of driving licence - Whether breach of duty to make adjustments - Whether failure to comply with duty justified -
The respondent council needed to reduce its workforce for financial reasons and selected staff for redundancy on the basis of criteria that included possession of a driving licence. The applicant was unable to drive following an accident which had left him disabled and was dismissed. On his complaint that he had been discriminated against on the ground of his disability, contrary to section 5(1) and to sections 5(2) and 6(1) of the Disability Discrimination Act 1995,F1 the industrial tribunal found that the reason for his dismissal was redundancy; that his selection for redundancy had been based on a lack of capability due to his disability; that, accordingly, he had been less favourably treated for a reason related to his disability than others who did not have that disability, within the meaning of section 5(1)(a); but that the dismissal was justified for the purposes of section 5(1)(b), as the reason for it was material to the circumstances of the case and substantial within the meaning of section 5(3). The tribunal further held that no reasonable adjustment could have been made pursuant to section 6(1), and they dismissed the complaint.
On appeal by the applicant, contending that, under section 5(1), each criterion for selection for redundancy had to be considered as a “reason” for less favourable treatment requiring justification, and that, in relation to section 5(2) discrimination, the tribunal had failed properly to apply section 6: —
Held, (1) that the criteria for selection for dismissal by reason of redundancy were not necessarily the same thing as the reason for selection for dismissal by reason of redundancy and might make a varying contribution to the reason for selection for dismissal; and that the industrial tribunal had posed the correct test in relation to the discrimination under section 5(1), namely, whether the council had shown that its treatment of the applicant was justified, pursuant to section 5(1)(b), in that the reason for it, the applicant's lack of flexibility, was both material to the circumstances of the case and substantial, as required by section 5(3) (post, pp. 1031F, 1032A–B).
(2) Allowing the appeal, that the words “any … arrangements on which employment … is … afforded” in section 6(2)(b) of the Act of 1995 were wide enough to cover arrangements in relation to whether employment continued or was terminated; that, accordingly, though there was no express mention of dismissal or redundancy in section 6(2), the duty of an employer under section 6(1) to take such steps as were reasonable to prevent the disabled person being put at a disadvantage applied to a dismissal for redundancy; that section 5(2)(4) and section 6(1)(2)(3)(4) required the industrial tribunal to go through a number of sequential steps when considering an allegation of failing to comply with a section 6 duty, namely, to decide, first, whether the provisions of section 6(1) and (2) imposed a duty on the employer and, if so, whether the employer had taken such steps as were reasonable to prevent the disabled person being placed at a substantial disadvantage, having regard to whether the employer could reasonably have taken any of the steps set out in section 6(3) and to the factors set out in section 6(4); that, if, but only if, the employer had failed to comply with a section 6 duty, the tribunal had then to decide whether the employer had shown that his failure to comply was objectively justified within the meaning of section 5(4); and that, since it was not clear that the tribunal had made any real inquiry in accordance with the provisions of section 6 before considering the question of justification, the case would be remitted to another tribunal for rehearing (post, pp. 1033D–1034B, 1035D–F, 1036B).
The following cases are referred to in the judgment:
Cobb v. Secretary of State for Employment [
Hampson v. Department of Education and Science [
Sidhar v. Gubb & Hauff Precision Engineering Co. Ltd (unreported), 10 April 1997,
Staffordshire County Council v. Black [
The following additional cases were cited in argument:
Jones v. Tower Boot Co. Ltd. [
Webb v. Emo Air Cargo (U.K.) Ltd. [
Appeal from an industrial tribunal sitting at Bristol.
By an originating application dated 2 June 1997 the applicant, Mr. Peter Morse, complained that he had been unlawfully discriminated against on the ground of his disability and unfairly dismissed by his employer, Wiltshire County Council. By a decision promulgated on 5 September 1997 the industrial tribunal dismissed the application.
The applicant appealed on 15 October 1997 on the grounds, inter alia, that the industrial tribunal had (1) erred in holding that the applicant's lack of flexibility was material and substantial within the meaning of section 5(3) of the Disability Discrimination Act 1995, when considering whether the discriminatory treatment was justified; and (2) failed to have regard to section 6(3) of the Act of 1995 when finding that the council had not failed to make adjustments as required by section 6(1).
The facts are stated in the judgment.
Charles Ciumei for the applicant.
Sean Wilken for the council.
1 May. The following judgment of the appeal tribunal was handed down.
Bell J. This is an appeal by the applicant, Mr. Peter Morse, against the decision of the industrial tribunal held at Bristol on 4 September 1997 that his application complaining of disability discrimination and unfair dismissal should be dismissed.
The essential facts are that the applicant was employed by Wiltshire County Council as a road worker from May 1963 until he was dismissed by reason of redundancy in March 1997. Latterly, and a result of local government reorganisation, he was employed by the civil engineering division of Wiltshire Direct Services, a department of the council which did work for the council in competition with outside agencies, since all the council's relevant work was awarded by direct tender.
The council accepted that the applicant was dismissed. It contended that the reason for his dismissal was that he was redundant and that the dismissal was fair. It also admitted that the applicant has a disability within the meaning of the Disability Discrimination Act 1995 and that he had been subjected to a detriment, namely, selection for dismissal by reason of redundancy, for a reason related to his disability; but it contended that this was not unlawful because its reasons for behaving in this way were material to the circumstances of the case and substantial. No reasonable adjustments would have avoided this state of affairs. The relevant facts found by the tribunal were as follows.
In May 1986 the applicant was severely injured in a road accident. He was left with a 20 per cent. disability, involving limited movement and grip in his right hand, stiffness in his right leg and a susceptibility to blackouts. The advice from the occupational health physician, when the applicant returned to work in July 1987, was that he should not work on heights, or near water if he was alone, or operate power tools. Although he was physically capable of driving a vehicle, he very responsibly refused to do so, because of his tendency to blackouts. After his return to work the applicant was employed on cyclic maintenance; mainly grass cutting, clearing pathways and minor maintenance work. Although he did do some bridge work, he was taken off that in 1993 after he had a blackout. It appears that he mainly assisted others or did labouring work if the jobs demanded the use of power tools or the manoeuvring of heavy weights.
In late 1996 it became clear to the council's direct services that it faced a major financial problem. It had seen a potential drop in income of more than a half from 1995/96 levels. It therefore concluded that it was necessary to reduce the size of the workforce by 35 to bring the level down to about 90. It took the view that it was essential to retain only the most flexible workforce. A major consideration was the requirement under its contract with the county to provide a winter road service. That alone imposed a requirement that 74 of its staff should be fully trained qualified drivers or loader drivers, and 70 or more of those would need to have a heavy goods vehicle licence which the applicant did not have and would not be able to get.
The council therefore conducted a review of its workforce and made a series of selections for redundancy upon the basis of criteria which were commonly used by the organisation over the years. The tribunal was satisfied that the possession of a driving licence was a key consideration, as henceforth it was anticipated that the work pattern would be of men working in pairs, carrying out a wide variety of maintenance tasks across the region. Individual mobility and versatility were therefore essential. The selection criteria were in place before the Disability Discrimination Act 1995 came into force, and they were not modified in the light of that Act.
The applicant was assessed, with others, by the assistant director of the direct services. He relied upon information from the applicant's manager and supervisors and upon the occupational health physician's comments, but he did not consult the applicant direct as to his current...
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