Paragraph 4.6 of the Code expands : "material" means that the reason for the treatment must relate to the individual circumstances and "substantial" means not just trivial or minor. H J Heinz Co Ltd v Kenrick 2000 IRLR 144 EAT confirms that relating to the individual may refer to the circumstances of both worker and employer (paragraph 19 approving Baynton v Saurus General Engineers Ltd 1999 IRLR 604), and that the threshold is low.

Is materiality assessed subjectively or objectively? Do the requirements to be material and substantial apply only to the employer’s decision itself, or do they extend to the prior investigation and considerations which underpin the decision?

1.2 Following Post Office v Jones 2001 IRLR 384 CA, a distinction may need to be drawn between cases in which an employer has to exercise discretion in relation to health and safety, and cases where they do not.

Jones addressed this issue in the context of a health and safety dismissal case that, unusually, proceeded to appeal solely on the basis of s5(1). In the leading judgement LJ Pill distinguishes between the two in paragraphs 25 and 26:

A subjective test is therefore proposed. According to LJ Pill, the defence requires there to be (i) a risk assessment, (ii) appropriate expert evidence underpinning the decision, and (iii) a rational decision. So an apparently rational decision alone is not enough : materiality (and substance?) require the employer to obtain "appropriate" evidence, and to follow appropriate procedure of obtaining a risk assessment prior to reaching a decision.

Does the materiality have to be substantial, or does "substance" apply only to the quality of the ultimate decision? See Lady Justice Arden, paragraphs 34 to 39.

The Code at paragraph 4.6 provides no examples of health and safety/risk assessment type cases.

Does the Jones ratio extend beyond risk assessments to cases where an employer places reliance on a medical opinion?

London Borough of Hammersmith and Fulham v Farnsworth 2000 IRLR 691 EAT is a pre-Jones decision. Here, the occupational works doctor concluded that the Applicant, a job applicant, had a history of mental illness and was likely to take time off work due to ill-health in the future. This advice was accepted by the employer. The Tribunal, supported by the EAT, held that this assumption was not justified on the facts : the Applicant had a good sickness record in her previous job and there was simply no evidence to justify an assumption that she was liable to take more time off. (See also Marshall v Surrey Police and Fielden v Edenfield Soap, both summarised EOR 98).

So is Farnsworth an example of "inappropriate" expert evidence? Or in a case where the employer is relying on medical evidence, but not in the context of a risk assessment, can the Tribunal scrutinize the employer’s decision objectively?

The Farnsworth medical report did appear to be based on assumptions not necessarily borne out by the facts. But so was the report in Jones, and what is the difference between an expert properly drawing on their own medical experience to reach an acceptable medical judgement, and their reaching unacceptable stereotypical conclusions?

1.3 The role of the expert is addressed in s58 of the DDA and in the Code (for example 4.62). Occupational health doctors are acting as the agent of the employer. In Farnsworth the occupational doctor was named as a Respondent (though due to the facts of the case rather than any matter of principle the case against them was dropped on appeal). If an expert reaches a stereotypical assumption about a disabled worker during the course of employment, are they as agents discriminating by treating the worker less favourably by reason of the disability, in a way that cannot be justified? Given the defence of s58(5), can and should they not be named as Respondents?

1.4 LJ Pill distinguishes between risk assessment and non-risk assessment type cases. What is the standard of justification applicable to non-risk assessment cases? If Jones respects the integrity of an employer’s judgement in certain cases, does that mean by implication that a Tribunal may objectively assess other types of case?

The Code at paragraph 4.6 provides straightforward examples of unlawful stereotyping where the employer has carried out little or no investigation or analysis of the facts prior to reaching a decision. There is no suggestion that subjective standards should be applied.

Mr Justice Lindsay in Heinz v Kenrick at paragraph 40 speaks in terms of a limited, and objective, balancing exercise between the interests of the employer and employee:

1.5 The limits of the duty (assumed to be objective) are illustrated by Mulligan v Commissioner for the Inland Revenue 2 December 1999, EAT/691/99 EOR DCLD 43: the DDA does not require an employer to accept a lower quantity or volume of work; Tiquin v Abbey National plc 31 March 1999 2400947/98 EOR DCLD 43 that the DDA does not require a new job to be created by the employer for the disabled worker.

The Framework Directive, to be implemented by 2 December 2006, provides definitions of direct and indirect discrimination both of which, to some extent, are encompassed in the "for a reason which relates to" of the DDA. The defence available for direct discrimination in the Directive depends on the job requiring "genuine occupational qualifications". For indirect discrimination, a type of Bilka justification defence is proposed : indirect discrimination will occur where an apparently neutral provision, criterion or practice would puts persons having a particular disability at a particular disadvantage compared with other persons "unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving it are appropriate and necessary". Both the direct and indirect defences clearly require an objective assessment of the situation.

The indirect discrimination provisions are subject to the duty of reasonable accommodation, in that if an employer is under an obligation to adjust, then the indirect provision falls away. In cases such as Jones or Kenny v Hampshire Constabulary 1999 IRLR 76, where arguably the duty to adjust is exhausted or inapplicable, then will the indirect provisions apply? Ss 5(1) and 5(3), as interpreted by Jones do not fit easily with these provisions.

The Government’s Regulatory Impact Assessment in relation to the Framework Directive acknowledges that the justification defence will require amendment in this respect.

Secondly s5(2) and (4), mirroring the terms of s5(3) : a failure to adjust may be justified for "material" and "substantial" reasons.

The words "such steps as it is reasonable, in all the circumstances of the case" suggest an objective analysis. This is re-enforced by the s6(4) considerations, and the Code at paragraph 4.21ff.

2.2 Morse v Wiltshire County Council 1998 IRLR 352 EAT expressly rejects the Jones type argument that a Tribunal should do no more than assess whether an employer’s explanation was capable of being material and substantial. Instead they envisage an objective test : "In taking these steps, the tribunal must, in our view, apply, an objective test asking whether the employer’s failure to comply with its s.6 duty was in fact objectively justified". Many EAT and Tribunal decisions similarly adopt a similarly objective approach (eg EAT in Fu v London Borough of Camden 2001 IRLR 186 overruling a Tribunal decision that the employer’s decision was reasonable : "the employment tribunal appear to have considered that their task was to determine if the actions of the employer were within a "band of reasonable responses" and not, as they should, to ask themselves to form a judgement as to whether such actions were reasonable"). Indeed, no reported cases suggest the test is other than objective. But, the similarity of wording for s5(3) and s5(4) is unsettling, though there is clearly no equivalence to reasonableness in s5(1), and the Government is proposing to delete the s5(4) justification defence, on the basis that "such steps as it is reasonable" represent sufficient protection for employers.

2.3 The objective nature of the defence is reinforced by British Gas Services Ltd v McCaull 2001 IRLR 60 EAT dealing with issues of knowledge (though contrast Quinn v Schwartzkopf Ltd 2001 IRLR 67 EAT). Similarly Woodhead v Halifax plc 28 November 1999 1802483/98.

"One might think that there may well be additional risks to the personal safety of an employed disabled person. For example, a fire may put a disabled person (and those who help him or her) at greater risk. Working from a wheelchair may not be as ergonomically sound as working from a modern office chair. The application of the health and safety provisions to the employment of a disabled person needs much thought."

"The Health and Safety Commission will work in partnership with the Department for Education and Employment and the Disability Rights Commission to ensure that health and safety law is never used as a false "excuse" for not employing disabled people or continuing to employ those whose capacity for work is damaged by their employment"

"Task Force recommendation 5.40 : We recognise that some employers have concerns about the health and safety implications of employing disabled people. We recommend that examples which illustrate these concerns should be investigated and that consideration should be given as to how the concerns might best be addressed (without risking employers becoming more concerned as a result).

Government response : We have asked the DRC and the Health and Safety Executive to continue working together to identify employers’ concerns about the health and safety implications of employing disabled people and try to address them."