Smith v Churchills Stairlifts Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Sir Christopher Staughton,Lord Justice Waller |
| Judgment Date | 27 October 2005 |
| Neutral Citation | [2005] EWCA Civ 1220 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2005/0077 |
| Date | 27 October 2005 |
[2005] EWCA Civ 1220
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL
TRIBUNAL (HHJ McMULLEN QC)
EAT/0674/04/CK
Lord Justice Waller
Lord Justice Maurice Kay and
Sir Christopher Staughton
Case No: A2/2005/0077
Mr Richard Lissack QC and Mr Andrew Short (instructed by the Disability Rights Commission) for the Appellant
Mr David Wrench, Company Customer Services Director for the Respondent
The Disability Discrimination Act 1995 was an innovative piece of legislation, the purpose of which was to enhance the protection of the disabled in the context of employment and in other ways. The Act was innovative partly because its approach was not simply to reproduce those of the Sex Discrimination Act 1975 and Race Relations Act 1976. As Baroness Hale explained in Archibald v Fife Council [2004] UKHL 32, [2004] ICR 954 (at paragraph 47):
"In the [Sex Discrimination Act and Race Relations Act], men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the differences between the genders are generally regarded as irrelevant. The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment."
That is fundamental to an understanding of how the Act works. It is perhaps unsurprising that an Act which proscribes less favourable treatment (discrimination) and requires more favourable treatment ("reasonable adjustments") is a complex one. This appeal illustrates just how great those complexities are.
The Facts
The respondent company sells mobility aids, including stair lifts, rise and recline chairs and adjustable beds. In 2003, it decided to diversify into the manufacture, sale and installation of radiator cabinets. To this end it set up a trading division known as "English Radiator Cabinet Company".
It is common ground that the appellant is a disabled person within the meaning of section 1 of the Act. He has lumbar spondylosis. As a result he has difficulty walking and uses a walking stick when outdoors. If he walks more than 50metres he needs to stop and rest. He is unable to lift and carry heavy objects.
The respondent needed to recruit a national sales force in relation to the radiator cabinets. On 11 September 2003 it advertised the position of sales surveyor. The appellant applied for this position by faxing an application letter. He had a preliminary telephone interview with Mr Paul Fuery, the national sales director of the English Radiator Cabinet Company. This was on 17 September 2003. Mr Fuery informed the appellant that the job would involve selling radiator cabinets direct to home owners. He invited the appellant for a formal interview on 19 September. The appellant attended and the interview was conducted by Mr Fuery and an independent consultant who was advising the respondent. Prior to the interview the appellant had completed an application form. He told the respondent of his condition and said that he would need an automatic car. The respondent agreed that this would be possible. The respondent also raised the issue of whether the appellant would be able to carry sales aids. At this stage no decision had been taken as to the form of sales aids which the sales team would be required to use. The appellant agreed to meet with Mr Fuery to discuss the sales aids. There was some concern on the part of the respondent as to whether the appellant would be able to carry samples.
The appellant was told that he had passed the interview stage and he was offered a place on a training course to commence on 20 October 2003. If he completed the course satisfactorily, he would be offered a job as a salesman.
At some time between the interview on 19 September and 10 October 2003, Mr Fuery and Mr Craig Paterson, the managing director of the respondent, decided that the sales aid to be used by their salesmen would be a full-sized sample radiator cabinet. This was based on a commercial judgment that such a method was likely to achieve a higher conversion rate, that is it would result in more leads ripening into actual sales. Whereas the traditional products sold by the respondent tended to be purchases of necessity so far as the customers were concerned, radiator cabinets were more discretionary purchases. The view was taken that customers were more likely to purchase such items if they could actually see them rather than merely seeing photographs, cut-away sections or miniature versions. Moreover, showing a potential customer the actual product reduced the risk of subsequent complaints of alleged misrepresentation as to its qualities.
A full-sized radiator cabinet is 900mm high by 1050mm wide by 225mm deep. It weighs approximately 25 kilogrammes. Mr Fuery and Mr Paterson came to the conclusion that the appellant would not be able to carry one. On 10 October 2003 Mr Fuery informed the appellant that the offer of the place on the training course was being withdrawn. Mr Fuery mentioned the possibility of a job selling stair lifts. However the applicant expressed no interest in this and so the possibility was not pursued. It seems that, prior to this, the appellant had constructed a model of a radiator cabinet which he thought would enable him to demonstrate the product to potential customers. After the telephone conversation in which Mr Fuery informed the appellant that the offer of the place on the training course had been withdrawn, the appellant telephoned Mr Fuery back and asked if he could at least show him the demonstration model which he had constructed but Mr Fuery refused.
On the next day 11 October, the appellant wrote to Mr Fuery asking for reconsideration. He suggested that he might work on a commission only basis for a trial period, he also suggested an alternative sales method which would dispense with the need for full-sized samples. The response to this letter came not from Mr Fuery but from Mr Paterson who telephoned the appellant on 13 October. He confirmed that the offer was withdrawn. He said that it was because the respondent did not provide automatic cars, because the appellant could not use his own vehicle and because the appellant had not met the job profile. He was a "non-starter". The findings of fact include the following:
"The respondent made, and then confirmed, its decision to withdraw … the offer of a place on the training course without seeing the applicant and without giving him an opportunity to see if he could carry the required samples and without giving any time to considering the [appellant's] proposals for alternative selling methods. Mr Fuery said this was a commercial decision; they thought their method best and wanted uniformity. Mr Paterson, when asked to explain why they did not try [the appellant's] methods, said that [the appellant] was trying to 'rewrite the rule book' and that this was not what they did or wanted to do. Mr Paterson also referred to complications with the national minimum wage and working time, if the [appellant] had a trial period on a commission only basis, but these explanations appeared to the Tribunal to be afterthoughts, which were not in the respondent's mind at the time, and to be obstacles, if any, which would not have been difficult to overcome. The Tribunal considered the reality to be that the respondent had decided this sales method would be best and were not willing to depart from it."
The training course was held in the absence of the appellant on 20 October. There were seven candidates. They were required to carry the sample cabinets as part of a role play. One candidate could not carry the cabinet and left the course. The remaining six passed the course and began employment on 25 October 2003. Of those, five had left the company by the end of February 2004, one because of a bad back.
At the hearing before the Employment Tribunal, a sample radiator cabinet was produced by the respondent. The appellant attempted to lift it but failed. The Tribunal members also tried lifting the cabinet. They made a finding that, due to the weight and size of the cabinet, a majority of the population would be likely to have difficulty carrying it any distance and lifting it into a car, at least without the risk of personal injury.
The appellant presented a claim to the Employment Tribunal on 6 January 2004. It alleged disability discrimination. A Notice of Appearance entered on behalf of the respondent stated that the appellant was not suitable for the training course because (1) his medical condition would prevent him from carrying a demonstration cabinet into people's homes; (2) on his application form he had stated that he was in good health; and (3) he had stated on his application form that he was currently pursuing a previous employer for disability discrimination and personal injury. This latter assertion led to an application on behalf of the appellant to add a victimisation claim.
In a decision promulgated on 18 June 2004, the Employment Tribunal, by a majority (with the chairman dissenting) held that the appellant had not been subjected to unlawful disability discrimination. At the same time, the Tribunal unanimously dismissed the...
To continue reading
Request your trial
-
Ms C Knightly v Chelsea and Westminster Hospital NHS Foundation Trust: 2204705/2018
...Supermarkets [2006] IRLR 664. Ultimately, the tribunal must consider what is reasonable, see Smith v Churchills Stairlifts Plc [2006] ICR 524. The focus is the reasonableness of the adjustment not the process by which the employer reached its decision about the proposed 140. The tribunal mu......
-
Mr Y Saleem v North East London Foundation Trust: 3201912/2019
...preferred by the disabled person. The test of reasonableness is an objective one: see the case of Smith v Churchill's Stairlifts plc [2005] EWCA Civ 1220, [2006] IRLR 41 at [44], in which it is said that, 'So long as the particular adjustment selected by the employer is reasonable it will h......
-
Ms L Aberdein v The Chief Constable of the Police Service of Scotland: S/4108552/2018
...v Ashton [2011] ICR 632 and in Newham Sixth Form College v Sanders [2014] EWCA Civ 734, and Smith v Churchill’s Stair Lifts plc [2005] EWCA Civ 1220 both at the Court of Appeal, The application to the Act was confirmed by the EAT in v HMRC UKEAT/0353/14. The guidance given in Environment Ag......
-
Mrs E Ferguson v Braid Ltd T/a Burns Bar and Maggidog Ltd T/a Burns Bar: 4107268/2019
...v Ashton [2011] ICR 632, in Newham Sixth 15 Form College v Sanders [2014] EWCA Civ 734, and Smith v Churchill’s Stair Lifts plc [2005] EWCA Civ 1220 both at the Court of Appeal, and all in relation to the former statutory provision. The application to the Act was confirmed by the EAT in Muz......
-
Employment Law Bulletin [2007] ELB 116
...Inc [2002] 3 NZLR 333. 5 Archibald v Fife Council [2004] UKHL 32; [2004] IRLR 651; [2004] 4 All ER 303. 6 Smith v Churchill Lifts Plc [2005] EWCA Civ 1220; [2006] ICR 524; [2006] IRLR 41. 7 Collins†v Royal National Theatre Board [2004] EWCA Civ 144; [2004] 2 All ER 851. 8 Collins†v Royal Na......
-
Unconscious bias and the medical model: How the social model may hold the key to transformative thinking about disability discrimination
...disadvantage (sections 20(3) and 20(4) EqA 2010). This has been int erpreted in caselaw – see Smith v. Churchill Stairlifts plc [2006] ICR 524 per Maurice Kay LJ at para. 34;Environment Agency v. Rowan [2008] ICR 218 and RBS v. Ashton [201 1] ICR 632. This dutyhas been extended to the essen......
-
Mental health disability discrimination
...EAT.Senior President of Tribunals Annual Report (2010) Employment Appeal Tribunal. London, UK:HMSO.Smith v. Churchill Stairlifts PLC, [2006] IRLR 41.Stafford and Rural Homes Ltd & Anor v. Hughes, [2009] UKEAT 0360-08-0903.Stansfeld SA, Rasul FR, Head J, et al. (2011) Occupation and mental h......