Appeal No UKEAT/1157/02/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 April 2004
Judgment delivered on 26 May 2004

Before
THE HONOURABLE MR JUSTICE SILBER
MS J DRAKE
MR I EZEKIEL

MRS SHAHINA MURPHY	APPELLANT

(1) SLOUGH BOROUGH COUNCIL 
(2) GOVERNING BODY OF LANGLEY WOOD SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR GRAHAM CLAYTON
Solicitor
Hamilton House
Mabledon Place
London 
WC1H 9BD	
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED	

SUMMARY

THE HONOURABLE MR JUSTICE SILBER
I	Introduction

1.	Mrs. Shahina Murphy (“the appellant”) is appealing against a decision of the Employment Tribunal held at Reading, which was entered on the Register and which was sent to the parties on 30 September 2002 in which the Employment Tribunal unanimously dismissed the appellant’s complaint of discrimination under the Disability Discrimination Act 1995 (“the 1995 Act”).

2.	This appeal raises interesting issues (i) on whether a claim for disability discrimination by a teacher should be made against the governors of a school at which the teacher worked or against the local authority responsible for the school at which the teacher worked, (ii) on what causal link has to be shown before a disability discrimination can be upheld between a refusal to provide a disabled employee with paid post-natal leave and her disability and (iii) on when and how disability discrimination or a failure to make adjustments can be justified.

II	The Background to the Application

3.	On 1 September 2000, the appellant commenced employment as a teacher at Langley Wood school (“the school”) where she was employed by the relevant local education authority for the school, which is Slough Borough Council (“the council”).  The school has a delegated budget.

4.	The appellant suffers from a congenital heart disorder and a consequence of this is that she was advised that if she were not to carry a pregnancy to full-term, there was up to a 50% chance of maternal mortality.  Therefore, when the appellant conceived naturally, she was advised by four doctors to have a termination and she duly did so.  In order to have a child of her own with her husband, the appellant and her husband arranged for a surrogate mother to give birth to their child in Los Angeles in the United States of America.  Under the local laws applying, where the birth took place, the appellant is named as the mother on the birth certificate of the child although it is accepted she is not the birth mother.  Under English law, it is the birth mother, who is regarded as the mother (s.27(1) Human Fertilisation and Embryology Act 1990).  The appellant has the right to apply for a parental order in respect of the child born to the surrogate mother (ibid s.20(1)).  It does not matter for the purposes of this appeal if she has done so.

5.	After the birth of her child on 19 November 2001, the appellant sought paid leave, but the governors of the school decided that she would be entitled to only unpaid leave.  The advice which was received from bodies such as the Department of Social Security and the council by the Personnel Committee of the governing body of the school was that the nearest analogy to the appellant’s claim was that of adoptive parents; in that case, there was a discretion vested in the school as to whether to grant paid post-natal leave.  

6.	The governing body followed the advice of the Head Teacher that only unpaid leave should be granted to the appellant because the school was in a precarious financial position having a budget deficit.  During the period of three years immediately prior to the academic year commencing in September 2001, the school had been the subject of “special measures” arising from an OFSTED inspection.  The Head Teacher sought additional funds from the council from its contingency fund so that the appellant could have paid leave, but that application was refused.

III	The Issues in front of the Employment Tribunal 

7.	By an Amended Application, the appellant contended that she was “disabled” within the meaning of the 1995 Act and that contention was not in dispute in front of the Employment Tribunal.  The appellant’s case was that she had been discriminated against first, under the 1995 Act and second, under the Human Rights Act 1998 on the basis that a pregnant woman giving birth to her baby would have been treated differently from the appellant because she would have been allowed paid maternity leave and that there was no objective or reasonable justification for the appellant being given different treatment.

8.	In their Notice of Appearance, the school and the council denied that the appellant fell within the provisions of the 1995 Act; alternatively, if she did fall within the provisions of the Act, it was denied by the school and the council that they had discriminated against her and/or that they had failed to make reasonable adjustments.  A further issue that was raised is whether the council had responsibilities to the appellant under the 1995 Act so as to be a proper respondent to the appellant’s claim for disability discrimination.

IV	The Decision of the Employment Tribunal 

9.	The Employment Tribunal considered first whether a claim for disability discrimination could be made against the council pursuant to the provisions of The Education (Modifications of Enactments Relating to Employment) Order 1999 (“the 1999 Order”).  The Tribunal concluded that the governing body of the school was the employer of the appellant for the purposes of the 1995 Act and so the respondent to the present claim, even though any compensation order made against that entity would be payable by the council.

10.	A majority of the Employment Tribunal found that the appellant had not been treated less favourably in the meaning of section 5(1) of the 1995 Act when compared with somebody who did not have her disability.  One member of the Employment Tribunal disagreed and he considered that there was a direct causal link between the refusal to provide the applicant with paid leave and her disability.  The Tribunal held unanimously that the defence of justification was substantiated because of the financial position of the school.  

11.	The Employment Tribunal then considered whether a claim could be made under section 5(2) of the 1995 Act on the basis that adjustments should have been made by the school in the form of providing paid leave of absence.  Again, a majority found that the school had not failed to comply with its duty while a minority disagreed.  The Tribunal, however, unanimously agreed that if the school had failed to comply with its duty under section 5(2) the defence of justification would succeed.  There was also a further ruling that the Human Rights Act 1998 did not assist the appellant, but that decision has not been the subject of the present appeal and so we will not consider it.

V	The Appellant’s Submissions

12.	Mr. Clayton for the appellant challenges the decision of the Employment Tribunal on the grounds that:-
“(1)	on the proper construction of the 1999 Order, the council was the appropriate respondent for a claim for disability discrimination brought by a teacher (“The Appropriate Respondent Issue”);
(2)	the employers of the appellant treated her less favourably than they would treat others to whom her disability did not apply “for a reason which relates to the [appellant’s disability]” (“The Disability Issue”);
(3)	the Employment Tribunal should not have found that the treatment of the appellant was “justified” (“The Justification Issue”);
(4)	there was a breach of a duty to make reasonable adjustments under section 6 of the 1995 Act (“The Adjustments Issue”).”

13.	We must acknowledge with gratitude the admirably clear and concise written skeleton arguments and oral submissions that were adduced by Mr. Clayton and Mr. Oldham to whom we are indebted.

VI	The Appropriate Respondent Issue

14.	The issue is to determine who was to be regarded for the purpose of a disability discrimination claim in the Employment Tribunal as the “employer” of the appellant.  It is now necessary to explain the statutory background to this issue because the school is a community school within the meaning of that term in the school Standards Framework Act 1988 (“the 1988 Act”) and in the 1999 Order, which has incidentally subsequently been replaced.  It was common ground that it is the 1999 Order, which is material to this appeal.  

15.	The legislation provides a scheme of financial delegation for community schools, which by their governing bodies exercise budgetary powers.  The council, as the local authority, was the employer of the appellant because a community school, unlike some of the other types of schools contemplated by the 1988 Act, did not have the power to enter into contracts for the employment of teachers and other staff (paragraph 3(6) of schedule 10 to the 1988 Act).

16.	Section 81(1) of the 1988 Act provides that:-

“Application of employment law during financial delegation.

(1)	The Secretary of State may by order make such modifications in any enactment relating to employment, and in particular in any enactment - 
a)	conferring powers or imposing duties on employers,
b)	conferring rights on employees, or
c)	otherwise regulating the relations between employers and employees, as he considers necessary or expedient in consequence of the operation of sections 54 – 57 (1) and (3), schedule 16 and paragraph 27 of schedule 17”.

17.	The power conferred by section 81(1) of the 1988 Act was exercised in making the 1999 Order.  The interpretation article in the 1999 Order provides, at article 2(2) that:-

“In this Order reference to employment powers and references to the powers of appointment, suspension, discipline and dismissal of staff conferred by or under sections 54 and 57(1) to (3) of, and schedule 16 and paragraph 27 of schedule 17(2) to the 1988 Act”.

18.	Under the heading of “General modifications of Employment Enactments”, article 3(1) provides that:-

“In their application to governing bodies having a right to a delegated budget, the enactments set out in the schedule shall have effect as if – 
a)	any reference (however expressed) to any employer, a person by whom employment is offered, or a principal included a reference to the governing body acting in the exercise of their employment powers and as if that governing body had at all material times been such an employer, person or principal;
b)	in relation to the exercise of the governing body’s employment powers, employment by the local education authority at a school were employment by the governing body of that school;
c)	references to employees were references to employees at the school in question;
d)	references to dismissal by an employer included references to dismissal by the local education authority following notification of a determination by a governing body under paragraph 25(1) of schedule 16 to the 1988 Act; and
e)	references to trade unions recognised by an employer were references to trade unions recognised by the local education authority or the governing body”.

19.	This is clearly a deeming provision because in the specific circumstances defined in the 1999 Order, the governing body is to be treated as the employer of the teacher.  Sections 5 and 6 of the 1995 Act, which are the provisions relied on by the appellant in her claim for disability discrimination in the present appeal are expressly referred to in the schedule and so fall within the ambit of article 3.

20.	Chapter III of the 1988 Act provides for the government of maintained schools, a community school being a maintained school by virtue of section 29(7) of the 1988 Act.  In section 38 of the 1988 Act, the functions of the governing body of such a school are stated broadly and that:-

“(1) Subject to any other statutory provisions, the conduct of a maintained school shall be under the control of the school’s governing body.

(2) The governing body shall conduct the school with a view to promoting high standards of educational achievement at the school”.

Section 54 of the 1988 Act provides that Schedule 16 of that Act has effect in relation to the staffing of community schools.  The schedule sets out in detail the procedures to be followed when a head teacher, a deputy head teacher, other teachers and non-teaching staff are to be appointed.  Paragraph 22 is headed “Discipline” and it provides that:-

“22(1) 	The regulation of conduct and discipline in relation to the staff of the school and any procedures for giving members of the staff opportunities for seeking redress of any grievances relating to their employment, shall be under the control of the governing body.
(2)	The governing body shall establish - 
a)	disciplinary rules and procedures (including such rules and procedures for dealing with lack of capability on the part of members of the staff), and
b)	procedures such as are mentioned in sub-paragraph (1);
and shall take such steps as appear to the governing body to be appropriate for making them known to members of the staff.
(3)	In determining the capability of members of the staff the governing body shall have regard to any guidance given from time to time by the Secretary of State.
(4)	If the Secretary of State determines that any prescribed rules and procedures are to apply to the school or to any class or description of school to which the school belongs - 
a)	the governing body shall act in accordance with those rules and procedures in determining the capability of members of the staff; and
b)	in the event of any inconsistency, those rules and procedures shall prevail over any rules and procedures established by the governing body under sub-paragraph (2)(a).
(5)	Where the implementation of any determination made by the governing body in the exercise of their control over the conduct and discipline of the staff requires any action which -
a)	is not within the functions exercisable by the governing body by virtue of this Act, but
b)	is within the power of the local education authority,
the authority shall take that action at the request of the governing body”.

21.	Article 6(1) of the 1999 Order provides, insofar as is material, that “this article applies in respect of any application to an employment tribunal and any proceedings pursuant to such an application, in relation to which by virtue of Article 3 or 4 a governing body are to be treated as if they were an employer, a person by whom employment is offered, or a principal”.  In those circumstances, paragraph 6(2) provides that “the application shall be made, and the proceedings shall be carried on, against that governing body”.  Article 6(4) creates an entitlement in a local education authority in such circumstances “to be made an additional party to the proceedings and to take part in the proceedings accordingly”.  

22.	The issue is therefore whether because of the 1999 Order, the governors of the school are deemed to be the employers of the appellant for the purposes of the appellant’s claim under the 1995 Act.  This issue is of substantial importance because if the council is the appropriate employer of the appellant for the purposes of her disability claim and thus the appropriate respondent to her claim for disability discrimination, the issue of justification of its conduct might well raise very different financial considerations than those which would have to be considered if the governors of the school with their more limited resources were deemed to be her employer and thus the appropriate respondent for the purposes of her disability claim.  In addition, local authorities and governing bodies will incur unnecessary costs if they are routinely but incorrectly joined as respondents to disability discrimination proceedings.

23.	Mr. Clayton contends that the scheme and purpose of the legislation is to modify the operation of a variety of provisions in employment legislation “in order to match a power exercisable by a school governing body with accountability”.  He says that the consequences and the intention of the 1999 Order is based on the exercise by the school governing body of an “employment power” as defined by article 2(2).  Mr. Clayton says it therefore follows that in the absence of an exercise by the governing body of an “employment power” as defined in the 1999 Regulations, the ordinary rules relating to the identity of a respondent apply; this would mean that the council as the appellant’s employer would be “the respondent”.  Turning to the facts of this case, Mr. Clayton says when it decided not to grant the appellant paid leave, the governing body of the school was exercising an “employment power”; so on the reading of the 1999 Order, it should be treated as if it had exercised such a power.

24.	Mr. Peter Oldham for the council and the school disagrees and he contends that the 1999 Order means that the appellant’s claim for disability discrimination can only be brought against the governing body.  He relies strongly on the recent decision of the Court of Appeal in Green v Governing Body of Victoria Road Primary school and Kent County Council [2004] EWCA Civ 11, in which it was held that the effect of article 3(1)(a) and article 6 of the 1999 Order was that the governing body was to be treated as the employer of the teacher on an application to an Employment Tribunal by the teacher claiming unfair dismissal; thus any such claim in the Employment Tribunal had to be made against the governing body and not against the local authority.

25.	We have come to the clear conclusion that the effect of the 1999 Order is that the governing body of the school is to be treated as if it was the employer of the appellant and second, that the application to the Employment Tribunal relying on disability discrimination should be made solely against the governing body and not against the council.  Four factors individually and cumulatively lead us to that decision and we will now set them out but in no particular order.  

26.	First, the combined effect of articles 6 and 2(2) of the 1999 Order would, when read with schedule 16 of the 1988 Act, mean that the exercise of any power by the governing body which would effect the interests of any members of staff would mean that they would be regarded as “the employer” of that member of staff for the purpose of disability discrimination proceedings.  As we have explained, article 3 of the 1999 Order deems a governing body to be an employer in respect of acts or omissions of “the governing body in exercise of their employment powers” (article 3(1)(a)).  In article 2(2) of the 1999 Order, “employment powers” are stated to be references to “powers of .. discipline .. of staff” as conferred by the legislation mentioned, which includes section 16 of the 1988 Act.  It is very significant that paragraph 22 of schedule 16, in the opinion of Pill LJ in the Green case (with whom May LJ agreed) was “widely defined and to include exercises of powers which will effect the interests of members of staff.  Such exercises of power may lead to disputes ” ([20] and [41]).  Applying that approach, withholding paid maternity leave would fall within the definition of “discipline” as the exercise of such powers first, would effect the interests of members of staff and second, might lead to disputes. 

27.	Second, Mummery LJ advocated in Green’s case “a broad, purposive approach to the construction of the procedural provisions in article 6” [39].  These words in themselves would be sufficient to ensure that the present claim for disability discrimination would have to be made against the governing body.  It is also significant that Mummery LJ considered that “employment powers” would include “other actions by a governing body in relation to the treatment of staff in the community school, which could lead to the termination of a contract of employment and alleged unfair dismissal” (ibid).  Clearly withholding maternity pay when due or practising disability discrimination by an employer could lead to a claim for constructive dismissal and it should therefore be dealt with in the same way.  This approach means that those who make such decisions, namely the governors, should be called to account for them in the Employment Tribunal.

28.	The third reason is that in Green, May LJ considered that it “cannot not have been the intention of the legislation, which in the 1999 Order that the question whether an application should be made against the governing body, the local education authority or both should turn on the uncertainties of a detailed inquisition into what the application alleges” [49].  In reaching that conclusion, May LJ explained that the words “the powers of appointment, suspension, discipline and dismissal of staff in article 2(2) are in my view a legislative signpost, not a definition”.  In our view, the “signpost” for the purpose of this appeal is that claims that relate to the terms of employment and in particular, the right not to be discriminated should be made against the governing body.

29.	Fourth, there are indications in the Regulations and in particular in the schedule, which show that the term “employment powers” in article 2(2) and 3(1)(a) is meant to have a wide and extended meaning.  Article 3 is the deeming provision in relation to a number of enactments which are set out in the statute in response to the appellant’s submissions that the term “employment powers” have to be narrowly construed.  Mr. Oldham contends, correctly in our view, that many of those statutory provisions which are subject to these deeming powers relate to matters other than what are normally regarded as “the powers of appointment, suspension and dismissal of staff”; these include the way in which an employee is intended to be treated during employment.  

30.	For example, the schedule specifically refers to section 71 of the Employment Rights Act 1996, which deals with ordinary maternity leave.  It also refers to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, which protects an employee against action short of dismissal on grounds relating to the union membership or activities.  The reference to these provisions shows the extensive width that is intended by the legislature to be given to the words “employment powers” in article 3 and to the definition of it in article 2(2).  These references support the contention that in disability discrimination claims, the proper defendant is the governing body.

31.	For those reasons, we consider that the Employment Tribunal was right in holding that this claim for disability discrimination can only be brought against the governors of the school and cannot be brought against the local authority.  Thus, the appeal insofar as it relates to the claim against the local authority must fail and be dismissed.  We will now continue to consider the appellant’s appeal in relation to the claim against the governors of the school.

VII	The Disability Issue

32.	As we have explained, there was a disagreement among members of the Employment Tribunal as to how to resolve this issue.  The majority took the view that the appellant had not been treated less favourably because they held that the reason for the treatment accorded to the appellant “was to do with the fact that she was not the birth mother of her child” (paragraph 14 of the Extended Reasons).  It was said that the appellant was in no different position from somebody who adopted a newborn baby or from a person who had difficulties conceiving because of fallopian tube problems.  In other words, the majority considered that the argument that the reason related to her disability “was to ignore the intermediary step of positively choosing to follow the surrogacy route” (paragraph 14 of the Extended Reasons).

33.	The view of the minority was that there was a direct causal link between the refusal to provide the appellant with paid leave and her disability because the reason for her surrogacy was her disability.  The issue for this Appeal Tribunal therefore is whether the withholding of paid leave was “for a reason which relates to the disabled person’s disability” (s.5(1)(a) of the 1995 Act).

34.	Mr. Oldham contends that the Employment Tribunal was entitled to reach its factual conclusion that the withholding of paid leave was not for a reason relating to the appellant’s disability and so he says that this Appeal Tribunal cannot and should not interfere with it.  Mr. Clayton says that this Appeal Tribunal should scrutinise with care the reasoning of the Employment Tribunal in order to ascertain if it made an error of law, which he says occurred in the construction of s.5(1)(a).

35.	The first issue that has to be considered is to determine the intensity of review permitted of this aspect of this decision by the Employment Tribunal.  Where the Employment Tribunal is carrying out a balancing act such as considering what was “reasonably practicable”, the role of the Employment Tribunal should be to show a margin of deference to such a decision.  The position relating to fact-finding is different.  It is therefore noteworthy that in Jones v Post Office [2001] IRLR 384, Arden LJ stated that the questions of what was an employee’s disability, what was the discrimination by the employer in respect of that disability and what was the employer’s reasons for treating the employee in this way “involved pure questions of fact” [41].  Similarly, in Clark v TDG Limited (Trading as Novocol) [1999] IRLR 318, Mummery LJ who delivered the only reasoned judgment of the Court of Appeal described the question as to whether someone had been dismissed for a reason which related to a disability as “one of fact” [53].  In consequence, this Appeal Tribunal is obliged to discover if the Employment Tribunal made an error of law in its approach to this issue and that leads to a question of statutory construction.

36.	Clark’s case is also helpful in explaining how to construe the words “for a reason which relates to the disabled person’s disability” in section 5(1)(a) of the 1995 Act because, as Mummery LJ explained, that:-

“In the context of the special situation 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 rather than as in itself a reason for the treatment” [63].

37.	Later in his judgment, Mummery LJ tested his approach by referring to an example, which was that:-

“If no dogs are admitted to a café, the reason for denying access to the refreshment in it by a blind person with his guide dog would be the fact that no dogs are admitted.  That reason “relates to” his disability.  His guide dog is with him because of his disability” [68].

38.	The task therefore is to isolate the ultimate reason for the conduct complained of (i.e. the disability) and to ignore the immediate cause (i.e. the guide dog).  This point is also borne out by a further passage relied on by Mummery LJ in the Code of Practice on Rights of Access issued by the Secretary of State, which states that:-

“A waiter asks a disabled customer to leave the restaurant because she has difficulty eating as a result of her disability.  He serves other customers who have no difficulty eating.  The waiter has therefore treated her less favourably than other customers.  The reason was for a reason related to her disability – her difficulty when eating.  And the reason for her less favourable treatment did not apply to other customers.  If the waiter could not justify the less favourable treatment, he would have discriminated unlawfully” [70].

39.	Applying that approach to the present case, the appellant has been treated less favourably than others who have given birth in the conventional way to their own children; “the reason” for the treatment according to the appellant related to her disability, namely her inability to have children.  For those reasons, we consider that the minority was correct and that the decision not to give the appellant paid leave was “for a reason which related to the disabled person’s disability”.  As we will explain, this reversal on a point of law of the majority view of the disability issue will not affect the eventual outcome of this appeal.

VIII	The Justification Issue

40.	The Employment Tribunal found that the treatment of the appellant was justified on the basis that she had been the subject of discrimination.  Section 5(1) of the 1995 Act requires the employers (namely the governors of the school) to “show that the treatment in question is justified” (s.5(1)(b)) but the treatment can only be justified if “the reason for [the discriminatory treatment] is both material to the circumstances of the particular case and substantial” (s.5(3) of the 1995 Act).

41.	On this issue, the Employment Tribunal considered that its function was not very different from the task which the Employment Tribunal performs in cases of unfair dismissal in that it must consider the materiality and substantiality of the employer’s reason on the basis that if, after carrying out that exercise, the opinion of the employers for the reason both material to the particular case and substantial, then in the absence of any perverseness, it should be upheld, even if it is different from the reason that the Tribunal itself might have reached.  

42.	The Employment Tribunal stated it had heard extensive evidence about the state of the school, which, as we have explained has been the subject of special measures in the sense that it was regarded as a “failing school”.  In order to address those measures, it was necessary for the Head Teacher to appoint staff on higher than standard salaries for the area; the school budget was also in deficit.  The Employment Tribunal was also told but without being supplied with any supporting documentary evidence that the council’s budget was also in deficit.  The Tribunal noted that before taking any decision regarding the appellant’s absence, the school had taken personnel advice and that it had also received advice from the council.  

43.	The school had a delegated budget, which meant that it was obliged itself to meet the costs of the appellant’s leave out of its own budget, although a request could be made for a contingency payment for the local authority, but in this case the council had refused to make this payment.  The evidence which was given by the Head Teacher of the school was that the impact on the school of paying the appellant would mean that it would incur financial expenditure which, unlike payments made under the statutory maternity pay scheme was irrecoverable.  She said that the cost to the school of paid leave to the appellant would be “the equivalent amount to about the cost of two pupils in a year”.  So, the Head Teacher said, that with their budget in deficit, this was more money than the school could afford.  The Employment Tribunal unanimously held that the financial situation of the school justified its treatment of the appellant in not granting her paid leave.

44.	This decision is challenged by Mr. Clayton, who said that the financial circumstances were only one factor of many, which should have been taken into account and that the decision of the Employment Tribunal was incorrect.  The first issue to be considered is the intensity of the review that is required.  In response, Mr. Oldham points out that in Jones, Pill LJ (with whom Kay and Arden LJJ agreed) said of the wording of section 5(3) that:- 

“the Employment Tribunal are confined to considering whether the reason given for less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial ([25]).  … 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” [28].

45.	Thus, the role of the Tribunal is not to act as a fact-finder because “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 to which the employer came, would have been preferable” (per Arden LJ in Jones’ case [41]).  That means that:- 

“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 the employer’s reason is outside the band of responses which are reasonable and an employer might have adopted, the reason would not be substantial” (ibid).

46.	Mr. Clayton sought to distinguish that approach by referring to the recent decision of this Appeal Tribunal in Paul v. National Probation Service [2004] IRLR 190, in which Cox J explained that an Employment Tribunal is not permitted to make up its own mind on justification on the basis of its own appraisal of an employee’s medical evidence when there has been a properly conducted risk-assessment by reference to competent and suitably qualified medical opinion [31].  We do not think that there is anything in that decision which casts any doubt on the approach in Jones, because in that case, as in the present case, there was no such assessment.

47.	Bearing in mind our limited powers of scrutiny of the justification issue, we unhesitatingly conclude that the Employment Tribunal was entitled to hold that the school was entitled to justify its decision not to give paid leave to the appellant on the grounds of its financial position.

IX	The Adjustments Issue

48.	The Employment Tribunal considered whether an adjustment should have been made, namely in the form of the provision of paid leave of absence to the appellant.  The relevant statutory provision in the 1995 Act states that:-

“6(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”.

49.	For views similar to those that were expressed in relation to the disability issue, the majority of the Employment Tribunal found that the school had not failed to comply with its duty because the appellant had been provided with leave, albeit not paid.  By the same token for the same reasons set out in the minority view on the disability issue, the other members of the Employment Tribunal found that the school had not complied with its duty.  

50.	Those views were academic because the Tribunal went on to decide unanimously that the defence of justification applied on the adjustments issue for the same reasons as we have explained in connection with the justification issue. It was not suggested by Mr. Clayton that the conclusion on the justification defence in relation to the adjustment issue should be different from this Appeal Tribunal’s decision on the justification defence in relation to the discrimination issue.  This is correct and there is also an additional reason why the decision on the justification on the adjustment issue should be upheld; that is because section 6(4) of the 1995 Act states, insofar as is material to this issue, that:-

“In deciding whether it is reasonable for an employer to have to take a particular step in order to comply with subsection 1 [i.e. the obligation to make adjustments], regard should be had, in particular, to:-
……
(b)	the extent which 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.”

51.	On this matter, the school is deemed to be the employer and we have explained the Employment Tribunal’s findings on the financial position of the school and the Employment Tribunal’s limited powers of scrutiny.  The factors in s.6(4) to which we have referred justify the decision of the school not to make an adjustment so that the appellant received paid leave.  So we agree with the Employment Tribunal on this issue.

X	Conclusion

52.	In those circumstances, we conclude that this appeal must be dismissed