Academic journal article Public Personnel Management

Jones V. Post Office: Has the Defense of Justification Been Watered Down under the United Kingdom's Disability Discrimination Act?

Academic journal article Public Personnel Management

Jones V. Post Office: Has the Defense of Justification Been Watered Down under the United Kingdom's Disability Discrimination Act?

Article excerpt

Does the United Kingdom Court of Appeal's judgment in Jones v Post Office [2001] EWCA Civ 558, [2001] I.C.R. 805, [2001] I.R.L.R. 384 represent a watering down of the defense of justification under the Disability Discrimination Act of 1995 (DDA)? Under Section 5 of the DDA, an employer discriminates if it treats a disabled worker less favorably than an able-bodied one. The employer discriminates if it cannot show justification or does not comply with Section 6 duties to make "reasonable adjustments" without showing justification. This paper will examine Jones v. Post Office and whether the Court of Appeal's decision represents a watering down of the justification defense and a shift in favor of employer rights in the United Kingdom with respect to the DDA.

Background

The driver of a mail delivery van was diagnosed with mature onset of diabetes. Having been treated unsuccessfully by diet and tablet treatment, he was prescribed insulin and consequently was removed from driving duties, an action that was required by the Post Office's regulations.

After reviewing the case, the Post Office agreed to allow the driver to drive no more than two hours within a 24-hour period. The driver did not accept this decision. (1)

Disability Discrimination and the Justification Defense

Under Section 5 of the Disability Discrimination Act of 1995 (DDA), an employer discriminates if it treats a disabled worker less favorably than an able-bodied one, the comparator approach under British Sugar v. Kirker. (2) The employer discriminates if it cannot show justification (Baynton v. Saurus) or does not comply with Section 6 duties to make "reasonable adjustments" without showing justification. (3)

Section 6 duties include taking reasonable steps to remove obstacles that treat disabled employees less favorably. Compliance may require altering the workplace, conditions or equipment (e.g., providing a sign language interpreter for a deaf employee), weighed against practicality, cost, and whether adjustments can be made to remove the disadvantage to the disabled worker.

Under Section 5(3) of the DDA, less favorable treatment is justified "if, but only if, the reason for doing so is both material to the circumstances of the particular case and substantial." (4)

The Employment Tribunal

The employment tribunal accepted the driver's contention that the two-hour driving limitation was not justified. The tribunal, hearing medical evidence from both parties, approached the case by considering whether the driver's condition posed a risk that fell above or below a line of acceptability.

The tribunal looked at the medical evidence upon which the Post Office had relied and decided that few facts applied in this case. They looked at the risk of the driver having a "hypo," an attack that would affect function, though severity might vary.

The Post Office had believed the risk to be sufficiently low when on tablet treatment, but when required to take insulin, they believed the risk too high. The tribunal, however, concluded that the risk was "negligible," and based its decision on the medical evidence presented by the driver. The Post Office did not have this information at the time that it made its decision. The tribunal decided in favor of the driver and concluded that the Post Office failed to show it was "justified" in treating the driver less favorably (e.g., limiting driving duties).

The tribunal asserted itself in the sense that it determined which medical evidence was most convincing at the time the case was presented to them and made its own assessment.

The Employment Appeal Tribunal (EAT) overruled the decision and concluded that the tribunal's review of the Post Office's risk assessment should be more limited. The case went to the Court of Appeal. (5)

The Court of Appeal

The Court of Appeal agreed with the EAT's judgment to overrule the tribunal's decision. …

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