THE WORDS of section 5(3) of the Disability Discrimination Act 1995 confined an employment tribunal to considering whether the reason given by an employer for less favourable treatment of an employee suffering from a disability met the statutory criteria of being both material to the circumstances of the particular case and substantial.
The Court of Appeal dismissed the appellant's appeal against a decision of the Employment Appeal Tribunal that his claim that he had been discriminated against by his employer on grounds of disability had not been made out.
The appellant had been employed by the respondent since 1977, driving a mail delivery van. In September 1997, after having a heart attack and being prescribed insulin treatment for diabetes, the appellant was removed from driving duties on the ground that the respondent's standards for drivers required that employees having insulin treatment should cease all driving duties. The respondent reviewed the case and at the end of April 1998 offered to let the appellant return to limited driving duties of two hours per day.
The appellant was not prepared to accept the driving limit, and complained to an employment tribunal that the respondent had discriminated against him on grounds of disability contrary to section 5 of the Disability Discrimination Act 1995. The employment tribunal heard medical evidence, and assumed the responsibility of deciding for themselves, on the basis of that evidence, that it was not reasonable for the respondent to have limited the appellant's driving.
The respondent appealed, and the Employment Appeal Tribunal allowed the appeal, holding that section 5(3) limited the tribunal's consideration to whether the reason put forward by the employer was one which was both material to the circumstances of a particular case and substantial. …