Veitch Penny LLP - Exeter | Crediton, Devon

Case

Mallon v Corus Constructions and Industrial
Employment Appeal Tribunal - (29 September 2003)

Issues

(1) Disability Discrimination
(2) Reasonable adjustments
(3) Interview procedure

Facts

Susan Mallon was an experienced nurse and a diabetic. Her diabetes was controlled by self-injection of insulin. She applied for a post with Corus as an occupational health nurse, whose duties included having responsibility for responding to on-site accidents in an emergency response vehicle.

She was invited to an interview with the company’s Senior Medical Officer, Dr Wilson. Upon learning of her condition, the interview was terminated. The interviewer had concluded, in accordance with the company’s medical guidelines, that as she would be a lone worker, Mallon was at risk due to her insulin dependency. In reaching this decision, he had taken account of the guidelines provided by the DVLA and the Medical Commission on Accident prevention. Consequently, Mallon was not offered the position.

Ms Mallon made a complaint to the employment tribunal on the basis of disability discrimination.

Corus conceded that Mallon had not been offered the job due to her disability. However, it went on to state that this less favourable treatment had been justified under s. 5(1(b) of the Disability Discrimination Act 1995.

Ms Mallon further argued that the premature termination of the interview was discriminatory against her in the “arrangements” made for the interview, contrary to s. 4(1)(a) of the Act.

The Tribunal held that there was no doubt that Ms Mallon came within the definition of “disability” for the purposes of the Disability Discrimination Act. It found that Corus’ refusal to offer her employment was related to her disability.

Ms Mallon appealed the decision.

Decision

The Appeal Tribunal found that the Tribunal’s finding in respect of the premature termination could not be faulted, as in reality, Mallon could not guarantee she would never suffer a hypoglycaemic attack. This reasonable and genuinely held belief justified Corus’ stance.

Where a case involved a risk assessment, the Tribunal did not have to decide whether the employer’s assessment was correct. It was limited to deciding whether the employer’s reasons for the less favourable treatment were material to the circumstances of the case. In this case, Corus had carried our reasonable investigations and made a reasonable risk assessment based on medical guidance. Therefore their reason for the treatment was based on a material risk that justified the less favourable treatment.

In respect of the issue of reasonable adjustments, the Tribunal had been correct in finding that no reasonable or effective adjustments could have been implemented. In the event that they could have made reasonable adjustments, they would not have been able to prevent or avoid the risk of Mallon suffering from uncontrolled episodes.

Comments

The Employment Appeal Tribunal dismissed Mallon’s appeal. Whilst it found that Corus’ premature termination of the interview and refusal to offer employment did amount to less favourable treatment due to her disability, the less favourable treatment was justified because Mallon could not guarantee that she would never suffer from an attack in the future.