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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Churchills Stairlifts Plc [2005] EWCA Civ 1220 (27 October 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/1220.html Cite as: [2005] EWCA Civ 1220, [2006] ICR 524, [2006] IRLR 41

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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

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 October 2005

Lord Justice Maurice Kay :

1. 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."

2. 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

3. 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".
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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."

10. 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.
11. 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.
12. 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.
13. 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 victimisation claim because it was out of time and, in the circumstances, it was not just and equitable to allow the appellant to proceed with it.
14. The appellant appealed to the Employment Appeal Tribunal and in a judgment given on 2 December 2004 the Employment Appeal Tribunal (His Honour Judge McMullen QC, Mr S M Springer MBE and Mr S Yeboah) dismissed the appeal. I shall say a little more about the decisions of the Employment Tribunal and the Employment Appeal Tribunal in due course. At this stage it is appropriate to set out the relevant provisions of the Act.

The Statutory Provisions

15. The relevant provisions are to be found in sections 5 and 6. Section 5 defines "discrimination" and section 6 deals with the duty of an employer to make reasonable adjustments. I agree with Mr Richard Lissak QC, who represents the appellant, that the logical order of presentation begins with section 6. It is in the following terms:

"(1) Where –

(a) any arrangements made by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.

(2) Sub-section (1)(a) applies only in relation to –

(a) arrangements for determining to whom employment should be offered;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with sub-section (1) –

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his working hours;

(e) assigning him to a different place of work;

(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;

(g) giving him, or arranging for him to be given, training;

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;;

(l) providing supervision.

(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with sub-section (1), regard shall be had, in particular, to –

(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to taking the step"

16. Section 5, which is headed "Meaning of discrimination", provides:

"(1) For the purposes of this Part, an employer discriminates against the 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 for whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part an employer also discriminates against a disabled person if –

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) Subject to sub-section (5), for the purposes of sub-section (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) For the purposes of sub-section (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(5) If, in a case falling within sub-section (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under sub-section (3) unless it would have been justified even if he had complied with the section 6 duty."

The Decision of the Employment Tribunal

17. In view of the number and complexity of the issues before it, it is unsurprising that the Employment Tribunal was not unanimous in all of its conclusions. The Chairwoman is to be commended for the clarity with which she set out the conclusions of the Tribunal (whether unanimous or by a majority) and the reasoning which explained them. The extended reasons recite the unanimous conclusions that the appellant was disabled within the meaning of the Act and that he was treated less favourably for a reason related to his disability by having the offer of a place on the training course withdrawn. Had it not been for his disability, the respondent would have allowed him to go on the course. Having stated these incontrovertible conclusions the Tribunal then identified as the main issue: "whether the withdrawal of the offer was justified". It added:

"Since, in considering the issue of justification, the Tribunal had to take account of the effect of section 5(5) …, the Tribunal considered whether the respondent had failed to comply with a duty to make reasonable adjustments before returning to the issue of justification of less favourable treatment."

18. By a majority (which included the Chairwoman) the Tribunal held (at paragraph 60):

"Carrying the cabinet was not part of the irreducible minimum of the job, but rather a term, condition or arrangement applied by the respondent. Selling cabinets was the irreducible minimum of the job and, as other companies' methods, to which Mr Patterson referred, demonstrated, this could be done by a variety of means which did not all require sales people to carry a full-sized radiator cabinet."

19. The expression "irreducible minimum of the job" was taken from the decision of the Court of Session Archibald v Fife Council. In the event, the decision of the Court of Session was the subject of a successful appeal to the House of Lords but the decision of the House of Lords was not handed down until some eight days after the decision of the Employment Tribunal in the present case. The decision of the House of Lords, to which I shall return, was not based on the concept of "the irreducible minimum of the job".
20. Having decided that the requirement to carry a full-sized radiator cabinet was an arrangement attached to the job of selling rather than part of the irreducible minimum of the job itself, the Employment Tribunal next considered whether this arrangement placed the appellant at a substantial disadvantage in comparison with persons who are not disabled. Thus it was focusing on section 6(1). It could find no assistance from the authorities on the nature of the comparison which was to be made. It considered three possibilities: (1) a comparison with the population generally who do not have any disability; (2) a comparison with the population generally who do not have the appellant's disability (but might have some other disability); and (3) a comparison with the population of people without the appellant's disability but who share other relevant characteristics with the appellant, for example in this case, height and build, which would be relevant to the ability to pick up and carry a full-sized radiator cabinet. A majority of the Tribunal (the Chairwoman dissenting) concluded that the correct comparison was with the population generally who do not have any disability. On that basis, the Tribunal unanimously concluded that the appellant was not placed at a substantial disadvantage compared with the population generally who do not have a disability

"because of the Tribunal's finding of fact that a majority of the population would be likely to have difficulty carrying the cabinet any distance and lifting it into a car, at least without risk of personal injury. A majority of the non-disabled population would not be able to use the sales aid as required. Therefore, the appellant was not placed at a substantial disadvantage by the requirement to use such an aid, in comparison with the non-disabled population."

Accordingly, the duty to make reasonable adjustments under section 6 did not arise.

21. The Employment Tribunal next considered, on an alternative basis, what the position would have been if the duty to make reasonable adjustments had arisen. It considered two possible adjustments: (1) selling by means other than the carrying of a full-sized cabinet on a permanent basis, for example by a combination of brochures, cross-section and model; and (2) selling by such other alternative means on a trial basis to see how things developed. It concluded that either such step would completely prevent the effect in question within the meaning of section 6(4)(a). Either would also have been practicable within the meaning of section 6(4)(b). It then stated (at paragraph 67):

"The appellant's suggestions for sales aids could have been made reasonably cheaply. The financial and other costs of making the required alternative aids would not have been great. Although the respondent had a commercial view that the methods would be less effective and, therefore, produce less profit, there was no hard evidence for this and any effect on profitability could not be properly assessed unless this was tried: section 6(4)(c). The Tribunal had no specific evidence on the respondent's financial resources, but considered the resources likely to be sufficient to bear the relatively minor costs of making the alternative aids and allowing a trial period: section 6(4)(d). The Tribunal had no evidence of the availability to the employer of financial or other assistance with respect to taking the step, but the availability or otherwise of such assistance was not, in practice, a relevant factor in the respondent's decision not to proceed with these alternatives: section 6(4)(e). The respondent's commercial view was that selling by alternative methods would be less profitable. However, there was no hard evidence that the conversion rate would be less. In these circumstances, the Tribunal did not think it would be a reasonable adjustment to agree to sales by alternative methods on a permanent basis from the outset. However, the Tribunal concluded that, had it decided that the duty to make reasonable adjustments had arisen, that it would have found that allowing sales by alternative methods on a trial basis would have been a reasonable adjustment to make. If the respondent's fears were proved founded, the respondent would then have been entitled to bring the arrangement to an end."

22. Pausing there, it is apparent that the primary finding was that the duty to make reasonable adjustments did not arise because of the comparative exercise favoured by the majority of the Tribunal but that, if it had arisen, the Tribunal would have concluded that the respondent had failed to make a reasonable adjustment in the form of a trial period of selling by means other than the carrying of a full-sized cabinet. On the primary finding, however, this was not a case falling within section 6(1) and, accordingly, section 5(5) was not in play.
23. On this basis the Employment Tribunal then addressed the question of justification for less favourable treatment in the context of 5(1). There, the question was whether "for a reason which relates to the disabled person's disability, [the respondent] treats him less favourably than he treats or would treat others for whom that reason does not or would not apply … and [the respondent] cannot show that the treatment in question is justified". The conclusion of the Employment Tribunal was adverse to the appellant. It held (at paragraph 71):

"In the light of the majority decision that the duty to make reasonable adjustments did not arise, the issue of justification fell to be considered only on the basis that the reason for the treatment had to be both material to the circumstances of the case and substantial. In accordance with the authority of Jones v Post Office [2001] IRLR 384, the Tribunal was not to substitute its own view for that of the respondent; but to decide whether the employer's decision fell within the range of reasonable responses to the known facts. The Tribunal unanimously concluded, applying this approach, that the withdrawal of the offer of a place on the training course, because the applicant was perceived not to be able to carry the cabinet (as turned out to be the reality), was justified. The respondent wished to avoid problems with misrepresentation to consumers. They had a genuine commercial view that their conversion rate would be higher if they used full-sized sample cabinets in their demonstrations in customers' homes. Their reasons for requiring sales people to be able to carry the cabinets and, therefore, this reason for withdrawing the offer to the appellant was material to the circumstances of the case and substantial. … The respondent's decision was justified on the basis of the appellant's inability to carry the cabinet."

24. I have set out the approach of the Employment Tribunal at this length because it assists in understanding the subsequent appeals. Properly deconstructed, the decision (by a majority, with the Chairwoman dissenting) was that the appellant had failed to establish a breach of the duty to make reasonable adjustments under section 6 and had failed to establish discrimination under section 5(1). As to the latter, although he had established less favourable treatment, the respondent had satisfied the Tribunal that the treatment in question was justified.

The decision of the Employment Appeal Tribunal

25. The appeal to the Employment Appeal Tribunal eventually took an unexpected turn. Although the appellant had instigated an appeal on the basis that the Employment Tribunal had taken an incorrect approach to the ambit of "arrangements" for the purposes of section 6(1) and had erred in its approach to the comparative exercise required by section 6(1). The Employment Appeal Tribunal was persuaded by counsel then representing the respondent that, rather than involve itself in the issues raised by the notice of appeal, it should resolve as a preliminary point a different issue raised by a Respondent's Answer. The point raised on behalf of the respondent was in the form of a contention that the decision of the Employment Tribunal in relation to the reasonableness of a trial period of sales without carrying full-size cabinets was perverse. On this basis, the alternative finding of the Employment Tribunal that, if it was wrong on the issues of "arrangement" and comparison, the appellant would have succeeded, was unsustainable.
26. The Employment Appeal Tribunal accepted the submissions made by counsel for the respondent. It referred to the evidence of the respondent's commercial reasons for insisting that salesmen carry actual cabinets. It observed that this was "hard evidence" and that it was wrong of the Employment Tribunal, when considering the duty to make reasonable adjustments, to say that there was no such evidence. The Employment Appeal Tribunal stated (at paragraphs 24 to 26):

"We therefore accept … that with this material the Tribunal could not hold that there was no hard evidence. Indeed the Tribunal in paragraph 71, when it turned to justification for the purposes of the admitted less favourable treatment under section 5(1), seems to accept wholly the case advanced by the respondent. That case is not disputed on appeal under section 5(1) today. In other words the commercial case advanced in evidence by the respondent was accepted for the purposes of acquitting it of unlawful discrimination under section 5(1). Why then should that evidence not be read across into the Tribunal's approach to reasonable adjustments?

In our judgment the Tribunal ought to have had that matter in mind when it considered in detail its approach to section 6(4) and the factors there set out. For it to say there was no hard evidence is wrong as a matter of fact in the sense that it was perverse. It was open to it of course to reject that evidence, but having accepted it for the purposes of section 5(1) it was not open to it to reject it for the purposes of section 6, at least without an explanation. We acknowledge a different legal test is required, but the territory over which the legal test is to be analysed is the same. The evidence produces by the witnesses distilled into findings by the Tribunal can only be made once, and it is then necessary to apply the different tests to it.

… We hold that the Tribunal decision is properly considered to be perverse. That is, there was evidence for the commercial case, which was accepted elsewhere … and there was internal inconsistency in applying it for one test and not the other. The way in which this case has been argued makes it unnecessary for us to deal … with other issues which we regard as important. Since the conclusion we have come to is in our judgment the only one which the Tribunal could have reached, it is not necessary for us to hear further argument or to consider remission of this case to the same or to a different Tribunal."

27. The appeal was therefore dismissed without consideration of the matters raised in the Notice of Appeal which had been filed on behalf of the appellant. The Employment Appeal Tribunal refused permission to appeal to the Court of Appeal but on 1 March 2005 Lady Justice Smith granted permission on the ground that the present appeal has a real prospect of success. She considered that the conclusion of the Employment Appeal Tribunal on its selected issue "may well have been wrong, bearing in mind the different tests that have to be applied under section 5(1) and section 5(2)". In that event the appellant's original grounds of appeal would come into play and in relation to them Lady Justice Smith considered that the Employment Tribunal "might well have erred in its approach to the question of whether the appellant was placed at a substantial disadvantage for the purposes of section 6.

The Grounds of Appeal

28. In this as in any similar case the central question for this court is whether the decision of the Employment Tribunal was correct in law: see Vento v Chief Constable of West Yorkshire County Police [2003] EWCA Civ 1871, per Mummery LJ at paragraph 25. The case for the appellant is that the Employment Tribunal fell into legal error when considering the scope of the "arrangements" pursuant to section 6(1) and in relation to the comparative exercise required by that subsection. It is submitted on his behalf that if the Employment Tribunal had correctly directed itself on these two issues it would have reached a different conclusion in respect of section 6 and this would have impacted on its consideration of section 5. On the other hand, it is suggested that the Employment Tribunal was right and the Employment Appeal Tribunal was wrong on the single issue which the latter decided. It is therefore necessary for us to consider the rival submissions on the issues of (1) "arrangements", (2) the comparative exercise under section 6, and (3) whether the alternative finding about a trial period was perverse as the Employment Appeal Tribunal considered it to be. The case for the respondent is that the Employment Tribunal was correct in relation to (1) and (2) but that the Employment Appeal Tribunal corrected it in relation to (3). It is therefore convenient to consider these three issues in that order.

The "arrangement(s)"

29. The duty of an employer to make reasonable adjustments under section 6(1)(a) arises where

"any arrangements made by or on behalf of an employer … place the disabled person … at a substantial disadvantage in comparison with persons who are not disabled … "

These words are limited by section 6(2) which provides that subsection (1)(a) applies only in relation to

"(a) arrangements for determining to whom employment should be offered;

(b)any term condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded."

30. It is common ground that the Employment Tribunal was correct in its decision that the requirement to carry a full-sized radiator cabinet was a relevant "arrangement" attached to the job of selling. Mr Lissack QC submits that the Employment Tribunal should have gone further and found that the fact that the offer of a place on the training course was subject to an implied condition that the appellant was, or was believed to be, able to carry such a cabinet and/or the fact that he was liable to have the offer of a place on the training course withdrawn if he was, or was believed to be, unable to carry such a cabinet, were also "arrangements" for the purposes of section 6(1)(a) and 6(2)(a). He submits that the reason for the error on the part of the Employment Tribunal was that it did not have the benefit of the decision of the House of Lords in Archibald v Fife Council. If that authority had been before it, the Employment Tribunal would not have confined itself to the "irreducible minimum of the job" test which had loomed large in the decision of the Court of Session.
31. Mrs Archibald was a road sweeper employed by Fife Council. In due course she became medically incapable of carrying out that employment. The Council retrained her for office work but, although she was interviewed for over a hundred posts, she did not succeed in obtaining any in competition with others. She was eventually dismissed on the ground of her incapability to carry out her employment as a road sweeper. Her case was that there had been unlawful discrimination within the meaning of section 5 because the Council had failed to make reasonable adjustments pursuant to section 6 to avoid causing her substantial disadvantage, in particular by its requirement for her to attend competitive interviews. Although she was unsuccessful in the Employment Tribunal, the Employment Appeal Tribunal and the Inner House of the Court of Session, her appeal to the House of Lords was allowed.
32. In addressing the meaning of "arrangements", Lord Hope of Craighead said (at paragraph 11):

"It was an implied 'condition' or an 'arrangement' of her employment within the meaning of section 6(2)(b) that she should at all times be physically fit to do her job as a road sweeper … [After she became disabled she was] exposed … to another implied 'condition' or 'arrangement' of her employment, which was that if she was physically unable to do the job she was employed to do she was liable to be dismissed."

33. The speech of Lord Rodger of Earlsferry (at paragraph 42) is to like effect. Baroness Hale of Richmond added (at paragraph 62):

"Subject to [section 6(2)], the term 'arrangements' is undefined. It could clearly relate to the Council's redeployment policy, but in this case that did not put Mrs Archibald at a substantial disadvantage compared with anyone else. It could equally apply to the terms on which Mrs Archibald held her road sweeping job. An employer's arrangements for dividing up the work he needs to have done into different jobs are just as capable of being 'arrangements' as are an employer's arrangements for deciding who gets what job or how much each is paid … The job descriptions for all their posts are 'arrangements' which they make in relation to the terms, conditions and arrangements on which they offer employment. Also included in those arrangements is the liability of anyone who becomes incapable of fulfilling the job description to be dismissed."

34. If this approach had been enunciated before the decision of the Employment Tribunal in the present case, I have no doubt that the Tribunal would have identified the "arrangements" differently and would have accepted the submission which Mr Lissack now advances to this court. The significance of this is not that, by itself, it would necessarily have ensured that the appellant would have succeeded before the Employment Tribunal. It is that it would have conditioned the comparative exercise required by section 6(1). It is only when the relevant arrangements have been identified that one can proceed to consider whether those arrangements place the disabled person at a substantial disadvantage in comparison with persons who are not disabled. With that in mind, I now turn to the comparative exercise and the second ground of appeal.

The comparators

35. It is clear from the disagreement between the members of the Employment Tribunal that they found the comparator issue particularly difficult. As I have related, the majority view that the correct comparison was with the population generally who do not have a disability did not attract the support of the Chairwoman. In his submissions on this issue, Mr Lissack seeks to build upon his now successful argument about the ambit of the "arrangements" and emphasises that, in the context of section 6(1), the beneficiary of the duty is "the disabled person concerned". The question is whether he is placed at a substantial disadvantage in comparison with persons who are not disabled. This is one of the structural and conceptual differences between the 1995 Act and the Sex Discrimination Act 1975 and the Race Relations Act 1976. Sections 1(1)(b)(i) and 1(2)(b)(i) of the Sex Discrimination Act refer to the "proportion of women". The corresponding provisions of the Race Relations Act (sections 1(1)(b)(i) and 1(1A)(a) refer to the "proportion of persons of the same racial group" and "persons of the same race and ethnic or national origins".
36. The comparative exercise required by section 6(1) of the Disability Discrimination Act was considered in Archibald. Lord Hope said (at paragraph 12):

"[Mrs Archibald's] disability placed her at a substantial disadvantage in comparison with others in the same employment who were not at risk of being dismissed on the ground that they, because of disability, were unable to do the job they were employed to do. These persons, a limited class, were her 'comparators'."

37. Lord Rodger put it in this way (at paragraphs 35 to 42):

"Section 6(1) envisages a comparison, but its exact nature is not spelled out. Lady Hale considers that the duty arises if the disabled person is placed at a substantial disadvantage in comparison with 'non-disabled people generally'. It respectfully appears to me, however, that, to be meaningful, the comparison must be with some limited class of persons who were not disabled …

The difficulty in identifying the appropriate comparators arises, in part at least, because section 6(1) is intended to apply in a range of situations … one cannot identify a single class of persons who are not disabled for the purposes of comparison …

Various factors suggest that the comparison envisaged in section 6(1) need not be with fit people who are in exactly the same situation as the disabled person … [In a case involving applicants for promotion] the question under section 6(1) is whether the basis on which the employer affords his employees the opportunity for promotion places the disabled person at a substantial disadvantage in comparison with non-disabled people who are competing for the same promoted post, irrespective of where or what their current job may be. Mutatis mutandis the same applies to other situations envisaged by section 6(2)(b) …

[The appropriate comparators in Mrs Archibald's case were] other employees of the employer who are not disabled, can therefore carry out the essential functions of their jobs and are, accordingly, not liable to be dismissed on the grounds of disability."

38. In her speech, Baroness Hale did not put it in the way which Lord Rodger had anticipated she might. She said (at paragraph 64):

"[The argument that the comparators] are only non-disabled people doing the same job … is difficult to reconcile with the inclusion of [a transfer to an existing vacancy in] section 6(3)(c) as an example of what might be done [and] also involves reading words into section 6(1) which are not there … For the reasons already explained, this Act does not require the sort of 'like for like' comparison which is involved in the Sex Discrimination and Race Relations Acts. I conclude, therefore, that the duty is triggered where an employee becomes so disabled that she can no longer meet the requirements of her job description."

39. The reference to "reasons already explained" is a reference to the passage which I set out in the first paragraph of this judgment. Notwithstanding the differences of language, it would be inappropriate to discern a significant difference of approach in these speeches. Lord Nicholls of Birkenhead (at paragraph 1) and Lord Brown of Eaton-under-Heywood (at paragraph 74) expressly agreed with all three speeches. Lord Rodger (at paragraph 22) agreed with Baroness Hale that the appeal should be allowed "for substantially the same reasons as she gives". Lord Hope also expressed agreement with the speech of Baroness Hale (paragraph 2), "subject to the following observations".
40. In my judgment Mr Lissack is right to submit that it is apparent from each of the speeches in Archibald that the proper comparator is readily identified by reference to the disadvantage caused by the relevant arrangements. On this basis, the approach of the majority of the Employment Tribunal is not sustainable. Even if the only relevant arrangement had been the requirement to carry a full-sized radiator cabinet, the proper comparators would still have been the six successful candidates who were subject to the requirement but not disadvantaged thereby because they were not rejected as a result. However, if (as I have held to be so) the relevant arrangements included susceptibility to withdrawal of the offer, the proper comparators were the nine people who were admitted to the course. Did the arrangements as a whole place the appellant at a substantial disadvantage in comparison with persons who were not disabled? In my judgment, there is only one answer to this question and that is in the affirmative. Accordingly, the second ground of appeal must succeed. Again, however, this is not in itself enough to ensure that the appellant would be bound to succeed in the Employment Tribunal. Under section 6(1) he would still have to establish that there were reasonable steps which should have been taken in order to prevent the arrangements having the adverse effect. Moreover, the respondent company would not be discriminating unlawfully under section 5 if it could establish that less favourable treatment under section 5(1a) or a failure to comply with a section 6 duty under section 5(2a) was justified by reference to section 5(3) and 5(5). This brings me to the third ground of appeal.

Reasonableness and Justification

41. It will be recalled that the alternative finding of the Employment Tribunal was that, whilst it would not have been reasonable to require the employer to agree to sales by different methods on a permanent basis from the outset, allowing sales by different methods on a trial basis would have been a reasonable adjustment. Thus, if the duty to make reasonable adjustments had arisen, there would have been a breach of it. Such a conclusion would have called for a different approach to section 5(2). The problem then arises as to the relationship between the criterion of reasonableness in section 6 and the criterion of justification in section 5. I have described how the Employment Tribunal, by its alternative finding, considered that reasonable adjustments ought to have been made under section 6 but that the less favourable treatment under section 5(1) was justified. The Employment Appeal Tribunal would not countenance this differentiation. It held that, in the light of the finding of justification, the finding in relation to reasonable adjustments was perverse.
42. The analysis of the Employment Appeal Tribunal acknowledged that justification in relation to section 5 is based on "a different legal test" from reasonableness in relation to section 6. However, it posed the question:

"… the commercial case advanced in evidence by the respondent was accepted for the purposes of acquitting it of unlawful discrimination under section 5(1). Why then should that evidence not be read across into the Tribunal's approach to reasonable adjustments?"

43. It considered that, once the Employment Tribunal had accepted the evidence for the purposes of section 5(1)

"it was not open to it to reject it for the purposes of section 6, at least without an explanation."

It found "internal inconsistency" in the approach to the evidence in relation to the two issues.

44. There is no doubt that the test required by section 6(1) is an objective test. The employer must take "such steps as it is reasonable, in all the circumstances of the case …" The objective nature of the test is further illuminated by section 6(4). Thus, in determining whether it is reasonable for an employer to have to take a particular step, regard is to be had, amongst other things, to

"(c)the financial and other costs which could be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities."

45. It is significant that the concern is with the extent to which the step would disrupt any of his activities, not the extent to which the employer reasonably believes that such disruption would occur. The objective nature of this test is well established in the authorities: see Collins v Royal National Theatre Board Ltd [2004 EWCA Civ 144] [2004 IRLR 395] in which Sedley LJ said (at paragraph 20):

"The test of reasonableness under section 6 … must be objective. One notes in particular that section 6(1) speaks of 'such steps as it is reasonable … for him to have to take'."

46. When one turns to the question of justification in section 5, the position is noticeably different. It is for the employer to show that the less favourable treatment referred to in section 5(1) or the failure to comply with a section 6 duty as referred to in section 5(2) is justified. It is apparent from the terms of section 5(3) and (4) that treatment is justified

"if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

47. Whereas, in relation to section 6, it is ultimately the view of the Employment Tribunal of what is reasonable that matters, the position is otherwise in relation to section 5. As Pill LJ said in Post Office v Jones [2001] EWCA Civ 558, [2001] ICR 805 (at paragraph 27):

"…a reason may be material and substantial within the meaning of the section even if the Employment Tribunal would have come to a different decision as to the extent of the risk."

48. The task of the Employment Tribunal is to consider the materiality and substantiality of the employer's reason. Pill LJ added (at paragraph 28):

"…the members of the Tribunal might themselves have come to a different conclusion on the evidence but they must respect the opinion of the employer … if the reason given is material and substantial."

49. Arden LJ added (at paragraph 41);

"Nor are the Tribunal required to be persuaded themselves. They are not entitled to find that the employer's reason for the discrimination was not justified simply because they take the view that some conclusion, other than that to which the employer came, would have been preferable. Nor can they conclude that justification has not been shown simply because they entertain doubts as to the correctness of the employer's conclusion. If credible arguments exist to support the employer's decision, the Employment Tribunal may not hold that the reason for the discrimination is not "substantial". If, however, the employer's reason is outside the band of responses which a reasonable employer might have adopted, the reason would not be substantial. In short, so far as the second limb of section 5(3) of the 1995 Act is concerned, justification is shown provided that the employer's reason is supportable."

50. These differential tests lead Mr Lissack to submit that evidence which may withstand the more limited scrutiny of section 5(1)(b), in that it supports a reason as being material and substantial (that is of more than trivial significance), may not be conclusive when the Employment Tribunal reaches its own conclusion for the purposes of section 6(1). Thus, a Tribunal may accept that an employer held a view that was genuine, relevant to the circumstances and which provided a more than insignificant reason for the treatment in question. In the absence of a duty to make reasonable adjustments under section 6(1), this may satisfy the requirements of section 5(1)(b). However, the fact that an employer held such a view does not prevent a Tribunal from finding that it would nevertheless be reasonable for the employer to make an adjustment under section 6. Moreover, if the Tribunal concludes that there was a duty to make an adjustment under section 6(1) and that the duty was not complied with, section 5(5) requires it to consider whether the less favourable treatment would have been justified had the employer complied with that duty, see Nottinghamshire County Council v Meikle [2004] EWCA Civ 859, [2004] IRLR 703, at paragraph 66 per Keene LJ.
51. In my judgment, these submissions of Mr Lissack are correct. Sections 5 and 6 call for different tests and the difference is such that something which might otherwise have been justifiable in the context of section 5 nevertheless results in a duty to make an adjustment pursuant to section 6. I consider that the Employment Appeal Tribunal was wrong when it concluded that there was an "internal inconsistency" in accepting the commercial case for the employer in relation to section 5 in isolation but in nevertheless finding that it would be reasonable under section 6 for the respondent employer to allow a trial period to see whether in fact the employer was correct about the commercial case.
52. It was the view of the Employment Appeal Tribunal that the "internal inconsistency" amounted to perversity. In my judgment, there was neither internal inconsistency nor perversity. The test for perversity is a high one. It is appropriate to repeat what Mummery LJ said in Yeboah v Crofton [2002] EWCA Civ 794 [2002] IRLR 634 (at paragraph 93):

"Such an appeal [i.e. one based on perversity] ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence on the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34."

53. That test has not been satisfied in this case. At one point the Employment Appeal Tribunal seems to have explained its decision on the alternative basis of an insufficiency of reasons. Thus, it held that, having accepted the commercial case for the purposes of section 5(1), it was not open to the Employment Tribunal to reject it for the purposes of section 6, "at least without an explanation". It seems to me that the explanation is evident on the face of the decision of the Employment Tribunal. When addressing the question of justification for the purposes of section 5, the Employment Tribunal correctly referred to its more limited role as set out in Jones v Post Office. This is apparent from paragraphs 49 and 71 of the extended reasons. However, when considering the position under section 6, it is clear that the Employment Tribunal had well in mind that it was its own assessment of what was reasonable that mattered. I can see no basis for a "reasons" challenge to the decision of the Employment Tribunal. I conclude that the Employment Tribunal did not fall into legal error in relation to the differential tests but reached permissible conclusions, albeit on alternative bases. It was the Employment Appeal Tribunal that fell into error with its finding of perversity and insufficiency of reasons.

The Cross Appeal

54. By a Respondent's Notice, it is stated:

"The Employment Tribunal erred in failing to consider properly whether the reasonable adjustment suggested to the appellant by the respondent, namely that he should sell a different product (stairlifts), which did not require the carrying of a sample, satisfied its duty under section 6(1) of the 1995 Act. Alternatively, the Employment Tribunal failed to provide adequate reasons for rejecting the reasonable adjustment put forward by the respondent."

55. It is clear that the Employment Tribunal had this aspect of the evidence well in mind. Thus, in relation to the conversation of 10 October, it found:

"Mr Fuery mentioned the possibility of a job selling stairlifts. The applicant expressed no interest in this, so the possibility was not pursued."

56. When the Tribunal came to express its findings about reasonable adjustments it stated (at paragraph 66)

"The Tribunal did not consider that the suggestion of what was arguably another reasonable adjustment, i.e. that the applicant should sell stairlifts, removed the obligation to make other adjustments, if reasonable, which would have enabled the applicant to sell his preferred product."

57. The short answer to this point is that the evidence and the findings of fact did not embrace a firm proposal of the sale of stairlifts as a reasonable adjustment. The witness statement of Mr Fuery did not advance it. The witness statement of the appellant attributed to Mr Fuery a comment that "There might be a possibility of me selling stairlifts". So far as I can see, that is the evidential basis for the reference in the extended reasons. It seems never to have progressed beyond the flying of a kite. In the circumstances, the Employment Tribunal was justified in its conclusion that it had not removed the obligation to make other adjustments, if reasonable, which would have enabled the appellant to sell radiator cabinets. I find no legal error in the decision of the Employment Tribunal on this issue.

Summary and Disposal

58. It follows from what I have said that I would allow this appeal and dismiss the cross appeal. The Employment Tribunal, which had to address these difficult issues before the decision of the House of Lords in Archibald v Fife Council, fell into legal error on the related issues of the relevant 'arrangements' and the comparative exercise required by section 6. However, it did not fall into error in relation to its alternative findings on reasonableness (under section 6) and justification (under section 5). It was the Employment Appeal Tribunal that was wrong in its finding of internal inconsistency and perversity. The question arises whether it is now necessary to remit the case to the Employment Tribunal to reconsider the substantive issues. In my judgment, such a course is not now necessary. I accept the submission on behalf of the appellant that, if the Employment Tribunal had properly directed itself, it would inevitably have found that the appellant had established that he was at a substantial disadvantage in comparison to persons who were not disabled. On that basis, there would have been an equally inevitable finding that to allow the appellant to sell by means other than by carrying a full-sized radiator cabinet on a trial basis was a reasonable adjustment. It further follows that, on this basis, the proper order is one which substitutes a finding that the respondent discriminated against the appellant contrary to section 5(2) and, as a result of the effect of section 5(5), section 5(1) of the 1995 Act. Accordingly, I would remit the case to the Employment Tribunal simply on the question of remedy.

Sir Christopher Staughton:

59. I agree.

Lord Justice Waller:

60. I also agree.