Section 5(3) Disability Discrimination Act 1995 confined the employment tribunal to considering whether the reason given for less favourable treatment could properly be described as both material to the particular circumstances and substantial. * Leave to appeal to the House of Lords refused.
The appellant employee ('J') appealed from the Employment Appeal Tribunal's decision to allow in part an appeal by the respondent company ('the PO') from a decision by the employment tribunal, whereby it found that the PO had discriminated against J on the basis of a disability. The appeal turned on the construction of s.5(3) Disability Discrimination Act 1995. J submitted that: (i) when the "reason" relied on by an employer for the purpose of that subsection was a belief about the effects of a disability, the tribunal was required to objectively determine whether that belief was correct; (ii) when an employer's false belief about the effects of a disability was that it constituted a safety risk, the "reason" was not material for the purposes of the subsection; (iii) the tribunal could determine whether the reason was "substantial"; (iv) medical evidence had to be considered afresh and the tribunal had to make its own risk assessment; (v) it would be fundamentally wrong to import the approach to unfair dismissal into s.5(3) of the Act; and (vi) a ministerial statement when moving an amendment to a clause demonstrated a clear intention to depart from a test based on an employer's opinion.
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