Manchester v Romano & Anor [2004] EWCA Civ 834

“22 (2). The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. With this legislation, tribunals are given explicit assistance in two forms, which should detract from the need to adopt a loose construction of the language: - Guidance issued on 25th July 1996 under s 3 of the Act by the Secretary of State (Statutory Instrument No 1996/1996) with statutory effect from 31 July 1996; and - Code of Practice issued on 25 July 1996 but with statutory effect from 2 December 1996. 23. The EAT repeats what it has said on a previous occasion, namely that, at least during the early period of the Act’s operation, reference should always be made, explicitly, to any relevant provision of the Guidance or Code which has been taken into account in arriving at its Decision.”

“Further, in our judgment, the employment tribunal erred in its approach, as evidenced in the last sentence of paragraph 24 of its decision. It is not material to a decision as to whether a person is suffering a disability within the meaning of the Act, to consider how the impairment from which they are suffering was caused. What is material is to ascertain whether the disability from which they are suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant as in this case, it is an impairment which is excluded by reason of the Regulations from being treated as such a disability.”

“Accordingly, in general there will be three or possibly four routes to establishing the existence of ‘mental impairment’ within the [1995 Act], namely: (i) proof of a mental illness specifically mentioned as such in the World Health Organisation’s International Classification of Diseases … (ii) proof of a mental illness specifically mentioned as such in a publication ‘such as’ that classification, presumably therefore referring to some other classification of very wide professional acceptance; (iii) proof by other means of a medical illness recognised by a respected body of medical opinion.”

“For the purposes of [this part/section 22 etc] [an employer/a person] discriminates against a 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 to whom that reason does not or would not apply; (b) He cannot show that the treatment in question is justified.” (a) For a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; (b) He cannot show that the treatment in question is justified.”

“A contrary interpretation is submitted on behalf of Mr Clark. His argument is that ‘that reason’ refers only to the first three words of the paragraph – ‘for a reason’. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression ‘which relates to the disability’ are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation, the others to whom ‘that reason’ would not apply are persons who would be capable of carrying out the main functions of their job. Those are the ‘others’ proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark has been treated less favourably; he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed.”

“But, as already indicated, the 1995 Act adopts a significantly different approach to the protection of disabled persons against less favourable treatment in employment. The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the ‘reason’ for the treatment of the disabled employee and the comparison to be made is with the treatment of ‘others to whom that reason does not or would not apply’. The ‘others’ with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be persons ‘to whom that reason does not or would not apply’.”

“The result of this approach is that the reason would not apply to others even if their circumstances are different from those of the disabled person. The persons who are performing the main functions of their jobs are ‘others’ to whom the reason for dismissal of the disabled person (ie inability to perform those functions) would not apply. In the context of the special sense in which ‘discrimination’ is defined in s 5 of the 1995 Act it is more probable that Parliament meant ‘that reason’ to refer only to the facts constituting the reason for the treatment, and not to include within that reason the added requirement of a causal link with disability: that is more properly regarded as the cause of the reason for the treatment than as in itself a reason for the treatment. This interpretation avoids the difficulties which would be encountered in many cases in seeking to identify what the appeal tribunal referred to as ‘the characteristics of the hypothetical comparator’. It would avoid the kind of problems which the English (and Scottish) courts and the tribunals encountered in their futile attempts to find and identify the characteristics of a hypothetical non-pregnant male comparator for a pregnant woman in sex discrimination cases before the decision of the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd : see Webb (No 2) [1995] IRLR 645. This interpretation is also consistent with the emphasis on whether the less favourable treatment of the disabled person is shown to be justified. That defence is not available in cases of direct discrimination under the other discrimination Acts.”

“(3) It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises – (a) in the way he permits the disabled person to make use of any benefits or facilities; (b) by refusing or deliberately omitting to permit the disabled person to make use of any benefits or facilities; or (c) by evicting the disabled person, or subjecting him to any other detriment.” (a) in the way he permits the disabled person to make use of any benefits or facilities; (b) by refusing or deliberately omitting to permit the disabled person to make use of any benefits or facilities; or (c) by evicting the disabled person, or subjecting him to any other detriment.”

“(2) For the purposes of this section, treatment is justified only if – (a) in A’s opinion, one or more of the conditions mentioned in subsection (3) are satisfied; and (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion. (3) The conditions are that – (a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person); ……. (4) Regulations may make provision, for purposes of this section, as to circumstances in which – (a) it is reasonable for a person to hold the opinion mentioned in subsection 2(a); (b) it is not reasonable for a person to hold that opinion. (5) Regulations may make provision, for purposes of this section, as to circumstances (other than those mentioned in subsection (3)) in which treatment is to be taken to be justified.”

“3.13 Service providers seeking to avoid discrimination, therefore, should instruct their staff that their obligations under the Act extend to everyone who falls within the definition of ‘disability’ and not just to those who appear to be disabled. They may also decide that it would be prudent to instruct their staff not to attempt to make a fine judgment as to whether a particular individual falls within the statutory definition, but that they should focus instead on meeting the needs of each customer.”

“9.26 It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises by evicting the disabled person. This prohibition does not prevent the eviction of a disabled tenant where the law allows it, for example, where he or she is in arrears of rent or has breached other terms of the tenancy, and where the reason for the eviction is not related to disability. However, in each case, appropriate court action needs to be taken to obtain an eviction order.”

“A tenant of a house has recently been diagnosed with AIDS. His landlord gives him a week’s notice to quit the house, although he is not in arrears of rent or otherwise in breach of his tenancy. This is likely to be unlawful.”

“The general approach to justification 7.8 The test of justification is twofold; what did the service provider believe? (a subjective test) and was that belief reasonably held? (an objective test). A service provider does not have to be an expert on disability, but it should take into account all the circumstances, including any information which is available, any advice which it would be reasonable to seek, and the opinion of the disabled person. … The lawfulness of what a service provider does or fails to do will be judged by what it knew (or could reasonably have known), what it did and why it did it at the time of the alleged discriminatory act. 7.9 In some instances, it will not be clear whether any of the justifications apply. It may be shown subsequently that a service provider was mistaken in its opinion in a particular case. Coming to an incorrect conclusion does not necessarily mean that the service provider has discriminated unlawfully against a disabled person. In such cases, a service provider may be able to justify less favourable treatment or failure to make reasonable adjustments if it can show that it was reasonable, in all the circumstances of the case, for it to hold that opinion at the time.”

“34 … In my opinion, that part of the test requires an objective assessment of all the relevant circumstances. But that, of course, raises a question as to what circumstances are relevant for this purpose; and in particular it raises the question of whether a person in the defender’s position is under some sort of obligation to make inquiries of a disabled person before forming any opinion. 35 In considering this aspect of the case, it may be helpful at the outset to make clear that ‘the relevant circumstances’ do not extend to include all of the facts which may be established at a much later stage, for example during proof in a litigation. Counsel for the pursuer did not suggest that the reasonableness of an opinion should be tested, ex post facto as it were, by objective reference to all of the facts which might come to light at a later stage, and I am of opinion that counsel was correct to adopt that position. However, as I have noted earlier, he founded strongly on the submission that the defender should have engaged in dialogue with the pursuer so as to obtain more relevant facts than were immediately available to him. The submission bore, of course, to be founded on the Code of Practice, and in particular on the passage which I have already quoted from paragraph 1.7. 36 In my opinion, counsel’s submission on this point is crucial if the pursuer is to succeed because, like the sheriff, I consider that the opinion reached by the defender, on the facts as then known to him, was a reasonable one for him to reach. … 37 The question then is whether the defender should have endeavoured to obtain more information before finalising his opinion. The Act itself does not impose any such duty, but I accept that the Code contains a suggestion that some inquiry may be desirable. In my opinion, however, the need for further inquiry will depend very much on the facts and circumstances of a particular case. …”

“5 (1) Except as provided by section 25 no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Part III. (2) Sub-paragraph (1) does not prevent the making of an application for judicial review.”

“These incidents have been continuous over the last few years … I am going to work tired because my sleep has been disturbed. This makes my work difficult as I have explained. I am a Driving Examiner and need to be fully aware of what is going on around me … I have been to the courts to obtain some peace and rest … The stress this has caused me in my marriage and in my work is unmeasurable. These latest incidents have taken place since the last court hearing which makes me wonder what exactly does one have to do or where does one go from here.”

“This 38 year old lady has been suffering from depression of mood associated with suicidal thoughts, auditory pseudo hallucinations, persecutory ideas, poor appetite, weight loss, lassitude, difficulty getting off to sleep, early morning wakening, poor concentration and memory. This constellation of symptoms represents a moderate to severe depressive episode in keeping with the World Health Organisation (WHO, 1992) and American Psychiatric Association (APA, 1994) guidelines. She has had previous episodes of depression and therefore satisfies the criteria for a diagnosis of a Recurrent Depressive Disorder. In this setting of depressed and irritable mood she has misinterpreted other people’s intentions and behaved in a hostile manner.”

“I can feel when a mental health episode comes on and I know that when I do have an episode I can get very violent. Sometimes I cannot recall what I have done during the episode and the episodes scare me and I try to keep myself to myself because I know what I can do. Such an episode generally starts with having bad thoughts, feeling panicky and feeling angry. I am trying very hard to combat my mental health which includes taking medication but I try and keep myself to myself because I know that if an episode occurs there is very little I can do to stop it from happening.”

“I am at the end of my tether and I feel that I can no longer cope with the behaviour of the defendant and her family. I am sick of my children having to listen to their abusive language. The comments that the defendant makes to my family and myself are very insulting and hurtful. I feel very vulnerable and worried for the safety of my family and myself.”

“…[T]he complainant … is suffering from serious depression which she is now on medication for. [Her] depression is a direct result of the behaviour of Yvonne Samari. As the landlord’s representative I have considered the health and safety of Sharon Jones and believe it is justified for legal action to continue.”

“A service provider may have treated a disabled person less favourably for a reason related to their disability even if it did not know the person was disabled.”

“A pub employee orders a customer who is lying prone on a bench seat to leave the premises because he assumes she has had too much to drink. However, the customer is lying down as a result of a disability rather than alcoholic consumption. The refusal of further service [which we take it means further service of drink] is for ‘a reason which relates to the disabled person’s disability’. This will be unlawful unless the service provider is able to show that the treatment in question is justified as defined by the Act.”