Smith v Churchills Stairlifts Plc

Factual and Procedural Background

The Defendant, a company selling mobility aids, diversified in 2003 into manufacturing and selling radiator cabinets through a trading division. The Appellant, a disabled person with lumbar spondylosis, applied for a sales surveyor position related to radiator cabinets. After a preliminary and formal interview, the Appellant was offered a place on a training course conditional on satisfactory completion. Subsequently, the Defendant decided the sales method would require carrying full-sized radiator cabinets weighing approximately 25 kilograms. The Defendant withdrew the Appellant's training place offer, citing concerns about his ability to carry the cabinets and other reasons including vehicle provision and job profile suitability. The Appellant challenged this decision, alleging disability discrimination under the Disability Discrimination Act 1995.

The Employment Tribunal (ET) found the Appellant was disabled and subjected to less favourable treatment but concluded the treatment was justified and no duty to make reasonable adjustments arose. The Employment Appeal Tribunal (EAT) dismissed the Appellant’s appeal, holding the ET’s alternative finding of a reasonable adjustment trial period was perverse due to internal inconsistency in the ET's application of evidence. Permission to appeal to the Court of Appeal was granted, focusing on the correct interpretation of "arrangements" and the comparative exercise under section 6 of the Act.

Legal Issues Presented

1. What constitutes "arrangements" under section 6(1) and (2) of the Disability Discrimination Act 1995 in relation to the employer’s obligations?
2. What is the appropriate comparator group for assessing whether a disabled person is placed at a substantial disadvantage under section 6(1)?
3. Whether the Employment Tribunal’s alternative finding that a trial period of selling by alternative methods was a reasonable adjustment was perverse as held by the Employment Appeal Tribunal.
4. The relationship and distinction between the tests of reasonableness under section 6 and justification under section 5 of the Act.

Arguments of the Parties

Appellant's Arguments

• The Employment Tribunal erred in limiting the scope of "arrangements" and should have included the implied condition that the Appellant be able to carry the cabinet and the possibility of withdrawal of the offer as arrangements.
• The comparative exercise should focus on the disabled person concerned and compare with persons who are not disabled but share relevant characteristics, not the general non-disabled population.
• If the Tribunal had correctly applied these principles, it would have found a duty to make reasonable adjustments under section 6 and discrimination under section 5.
• The Employment Appeal Tribunal was wrong to find perversity in the ET’s alternative finding regarding reasonable adjustments and justification.

Respondent's Arguments

• The requirement to carry a full-sized radiator cabinet was a relevant arrangement attached to the job, and the ET was correct in its approach.
• The commercial reasons for insisting on carrying full-sized cabinets were supported by hard evidence and justified the withdrawal of the offer.
• The Employment Appeal Tribunal correctly found the ET’s alternative finding of reasonable adjustment to be perverse due to internal inconsistency in applying the evidence.
• The suggestion that the Appellant sell stairlifts was a reasonable adjustment but was not pursued as the Appellant showed no interest.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Archibald v Fife Council [2004] UKHL 32	Clarification of the concept of "arrangements" and the nature of comparators under the Disability Discrimination Act 1995; the duty to make reasonable adjustments; the irreducible minimum of the job test.	Guided the Court in redefining the scope of "arrangements" beyond the irreducible minimum test and in identifying the appropriate comparator group for assessing substantial disadvantage.
Jones v Post Office [2001] IRLR 384	Test for justification of less favourable treatment under section 5(1) of the Disability Discrimination Act 1995; the range of reasonable responses.	Applied by the Employment Tribunal to assess whether the employer's decision to withdraw the offer was justified.
Vento v Chief Constable of West Yorkshire County Police [2003] EWCA Civ 1871	Standard for appellate review of Employment Tribunal decisions on questions of law.	Referenced to establish the standard by which the Court of Appeal would assess the correctness of the Employment Tribunal's legal conclusions.
Collins v Royal National Theatre Board Ltd [2004] EWCA Civ 144	Objective nature of the reasonableness test under section 6 of the Disability Discrimination Act 1995.	Supported the Court’s explanation of the objective test for reasonableness in making adjustments.
Nottinghamshire County Council v Meikle [2004] EWCA Civ 859	Interaction between failure to make reasonable adjustments (section 6) and justification of less favourable treatment (section 5(5)).	Used to explain how failure to comply with section 6 affects the justification analysis under section 5.
Post Office v Jones [2001] EWCA Civ 558	Clarification of the employer’s burden to justify less favourable treatment under section 5(1).	Reinforced that the Tribunal must respect the employer’s reason if material and substantial, even if it might have reached a different view.
Yeboah v Crofton [2002] EWCA Civ 794	Standard for establishing perversity on appeal from Employment Tribunals.	Referenced to emphasize the high threshold for overturning Tribunal decisions on perversity grounds.
British Telecommunications plc v Sheridan [1990] IRLR 27	Guidance on the caution required in appeals based on perversity.	Quoted to support the Court’s approach to the Employment Appeal Tribunal’s finding of perversity.

Court's Reasoning and Analysis

The Court began by emphasizing the innovative nature of the Disability Discrimination Act 1995, which requires reasonable adjustments that may involve more favourable treatment of disabled persons. The Court analyzed the Employment Tribunal’s approach to "arrangements" under section 6, concluding that the ET erred by narrowly defining arrangements and relying on the "irreducible minimum of the job" test, which was superseded by the House of Lords decision in Archibald.

The Court held that the relevant arrangements must include the implied condition that the Appellant be able to carry the cabinet and the possibility of withdrawal of the training offer, broadening the scope of the arrangements. This redefinition impacted the comparative exercise under section 6(1), where the ET majority had incorrectly compared the Appellant to the general non-disabled population rather than to an appropriate comparator group of non-disabled persons subject to the same arrangements.

Relying on Archibald, the Court identified the proper comparators as those non-disabled persons admitted to the training course and not disadvantaged by the arrangements. This comparison demonstrated that the Appellant was placed at a substantial disadvantage, satisfying section 6(1).

The Court then distinguished between the tests under sections 5 and 6. Section 6 requires an objective assessment of what is reasonable for the employer to do, considering costs and disruption, while section 5 involves whether the employer’s less favourable treatment is justified by a material and substantial reason. The Court found the Employment Appeal Tribunal erred in holding that the ET’s acceptance of the employer’s commercial justification under section 5 precluded a different conclusion on reasonableness under section 6. The Court held there was no internal inconsistency or perversity in the ET’s alternative findings.

Regarding the Respondent’s suggestion that the Appellant sell stairlifts as a reasonable adjustment, the Court found no legal error in the ET’s rejection of this as it was not a firm proposal and the Appellant expressed no interest.

Ultimately, the Court allowed the appeal, concluding that the ET erred in its approach to arrangements and the comparative exercise under section 6, but did not err in its findings on reasonableness and justification. The Court ordered that the case be remitted to the Employment Tribunal solely for determination of remedy.

Holding and Implications

The Court of Appeal ALLOWED the Appellant’s appeal and DISMISSED the Respondent’s cross appeal.

The Court held that the Employment Tribunal erred in law by incorrectly defining the relevant "arrangements" and by applying an inappropriate comparator group in assessing substantial disadvantage under section 6 of the Disability Discrimination Act 1995. However, the Tribunal did not err in its alternative findings regarding the reasonableness of adjustments and justification for less favourable treatment.

The case was remitted to the Employment Tribunal solely for the determination of remedy, as the Court concluded that the Appellant had established discrimination contrary to sections 5(2) and 5(1) of the Act due to the failure to make reasonable adjustments.

No new precedent was established beyond the application of existing principles clarified in Archibald and related authorities. The decision clarifies the proper identification of arrangements and comparators under section 6 and affirms the distinct tests for reasonableness and justification under sections 6 and 5 respectively.