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Disability Discrimination - Justification

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[Thanks to the Disability Rights Commission, who funded Mr Collins' appeal, for notifying me of this decision]

"This appeal raises a new and sharp question of discrimination law: can an employer's failure to make adjustments to accommodate a disabled employee be unreasonable but justified?"

So says Sedley LJ, in the opening paragraph of Collins v Royal National Theatre Board Ltd. (handed down by the Court of Appeal today).

His conclusion, in para. 32, is:

"In my judgment the only workable construction of s.5(4) [justification defence for failure to make reasonable adjustments], in the context of the DDA and its manifest objects, is that it does not permit justification of a breach of s.6 [duty to make reasonable adjustments] to be established by reference to factors properly relevant to the establishment of a duty under s.6"

This is a quite horrendously complicated decision. The Court of Appeal are basically holding that the threshold for the justification defence is much higher for a failure to make reasonable adjustments (as the questions relating to whether the employer has acted reasonably have already been canvassed - and rejected - in deciding whether there was a breach of duty in the first place) than for treating an individual less favourably on grounds of disability (where the justification defence is low - see Jones v Post Office).

NB The justification defence to a claim of failing to make reasonable adjustments is abolished, with effect from 1st October 2004, by the Disability Discrimination Act 1995 (Amendment) Regulations 2003.