Post Office v Jones
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE KAY,LADY JUSTICE ARDEN |
| Judgment Date | 11 April 2001 |
| Neutral Citation | [2001] EWCA Civ 558 |
| Docket Number | Case No: A1/2000/0294 EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 11 April 2001 |
[2001] EWCA Civ 558
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM THE EMPLOYMENT APPEAL
TRIBUNAL (HOLLAND J PRESIDING)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lady Justice Arden and
Lord Justice Kay
Case No: A1/2000/0294 EATRF
Melanie Tether (instructed by Messrs Pattinson & Brewer) appeared for the Appellant
David Griffith-Jones and Andrew Burns (instructed by Post Office Legal Services Department) appeared for the Respondent
This is an appeal against a decision of the Employment Appeal Tribunal, Holland J presiding, dated 9 February 2000 whereby they allowed, in part, an appeal against a decision of an Employment Tribunal which gave extended reasons on 10 November 1998. What is now in issue is whether, with respect to what has been described as Period C, the Post Office ("the respondent") discriminated against Mr Jones ("the appellant") within the meaning of that word in section 5(1) and (3) of the Disability Discrimination Act 1995 ("the 1995 Act").
The appellant has worked for the respondent since 1977 on postal deliveries. In 1979 he was diagnosed as having mature onset diabetes, which is also known as Type 2 diabetes. He was treated by diet and subsequently by tablets but, following a heart attack in June 1997, insulin treatment was prescribed. The appellant drove a mail delivery van, the delivery route assigned to him being almost entirely rural.
On 25 September 1997 the appellant was removed from driving duties on the ground that the respondent's standards for professional drivers required that employees having insulin treatment should cease all driving duties. On 12 February 1998 the respondent decided to review the case and the review continued until 30 April 1998. The first period was described as Period A and the review period as Period B. At the end of the review period, the respondent offered to let the appellant return to limited driving duties. The proposed duties required that driving should be limited to a period not exceeding two hours in any period of twenty-four hours, with the period of two hours relating to duty time rather than time actually spent driving. The other terms, which were acceptable to the appellant, were that he would be allowed time within his schedule to take appropriate steps to control his diabetes, that he would be allowed the flexibility to limit his driving should he feel unwell and that he should present himself for a review of his medical condition at intervals not exceeding six months. He was not prepared to accept the two hour limit for driving. The period beginning on 1 May 1998 has been described as Period C.
It is now accepted that there was discrimination during Periods A and B, the concession on Period B being based on delay in conducting the review. The Employment Tribunal found that there was discrimination during Period C, the two hour limit not being justified. They recommended that the appellant be returned to his driving duties. The Employment Appeal Tribunal allowed the appeal on Period C and set aside that finding and recommendation. They further ordered that, in the absence of a satisfactory resolution of the position, the matter be remitted for hearing before a differently constituted employment tribunal. They also considered section 6 but that section is now agreed to be irrelevant to the present case, as the Employment Tribunal found.
Section 5 of the 1995 Act provides, insofar as is material:
"(1) For the purposes of this Part, an employer discriminates against a disabled
person if—
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
(2) …
(3) … for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
A second form of discrimination is defined in section 5(2) and section 6. It is common ground that consideration of those provisions does not now arise in this case. It is accepted that the appellant has been treated less favourably than others for a reason which relates to his disability. The respondent submits that the treatment is justified within the meaning of section 5(3).
Three medical witnesses were called before the Employment Tribunal, Dr N Press, Consultant Physician, for the appellant, and Dr I Thomas, Area Medical Adviser to the respondent, and Dr S Boorman, Principal Medical Adviser to the respondent, on behalf of the respondent. The Employment Tribunal assumed the responsibility of deciding for themselves, on the basis of the medical evidence, whether it was reasonable to limit the appellant's driving. The respondent's case, not accepted by the Employment Tribunal but accepted by the Employment Appeal Tribunal, is that, on the wording of section 5(3), the function of the Employment Tribunal is a more limited one. The "reason" for the less favourable treatment is the risk presented by an insulin requiring driver. The Employment Tribunal, it is submitted, are entitled to consider only whether the reason put forward by the employer is one which is both material to the circumstances of a particular case and substantial.
The Employment Tribunal tried the medical issue. They stated that "Dr Press was able to provide us with the latest information based on extensive studies, which have only recently been released (since this case started)". They added: "The approach we take is to consider whether the [appellant] by reason of his condition posed a risk which falls above or below the line of acceptability". They set out the criteria on which Dr Boorman relied and stated that few of them applied to the appellant. They stated that they understood that the respondent accepted, while the appellant was on tablet treatment, his risk of having a hypo was sufficiently low to be a risk worth taking. (The word hypo is used to describe an attack affecting function, the severity of which may vary, suffered by a diabetic.) On their view of the evidence, the greater risk posed by the fact that the appellant now requires insulin was "negligible". They stated: "We conclude, therefore, that the respondent was not justified in restricting the [appellant's] driving. It follows from that that we find his claim for discrimination under the Act is made out". Having referred to the respondent's duty of "reasonable care to its employees", they stated that they were in no doubt that "the line of what is a reasonable duty of care is just the same as the line of what is an acceptable risk to permit someone to drive".
During the hearing before this Court, the question arose as to whether the Employment Tribunal had understood the medical evidence correctly. Miss Tether, for the appellant, submits that it is not open to the respondent to succeed on that ground because the allegation of perversity had been withdrawn expressly before the EAT. In my view, the approach of the Employment Tribunal to the substance of the medical evidence does present difficulties and may have involved misunderstandings. I am content however to decide the appeal on the basis of the more general arguments presented by the parties as to the construction of section 5(3). There is no doubt that the Employment Tribunal did assume the function of deciding the medical issue for themselves in that, subject to a point on timing which needs to be considered, they put themselves in the shoes of the employers and decided that the employers had come to a wrong decision. They held that a correct appraisal of the appellant's medical condition would have led to the conclusion that he should have been allowed to drive throughout his shift. Since the conclusion was wrong, it could not be either material or substantial. The evidence of Dr Press, not of course available to the employers when the decision was taken, had demonstrated that the employers were wrong to limit the hours of driving.
Miss Tether concedes that the Employment Tribunal were wrong to have regard to post-decision medical evidence. They stated (paragraph 16): "In particular we have had to consider the expert medical opinion and the latest medical research, even though that was certainly not available to the respondent when the initial decision was made in September 1997". (That date was chosen because Period A was then in issue but the same point arises upon a 1 May 1998 decision date). Miss Tether's submission is that the justification turns upon medical evidence which the respondent had, or ought to have had, at the date of the decision. If, by the standards applying at that date, the medical evidence relied on can be shown, to the satisfaction of the Employment Tribunal, to be wrong, justification under section 5(3) is not established. Miss Tether also submits, and on this point I agree with her, that the willingness of the Employment Tribunal to have regard to the "latest medical research" does not in the event affect their decision. Their conclusion was not based on the result of post-decision medical research. It was based on the opinion of Dr Press which they preferred to that of Dr Thomas and Dr Boorman. Dr Press's opinion, though expressed after the decision, did not depend on post-decision medical research.
The appeal turns on the construction of section 5(3). Miss Tether submits that, when the "reason" relied on by the employer for the purposes of the subsection is a belief about the...
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