A cuckoo in the nest? A 'range of reasonable responses', justification and the Disability Discrimination Act 1995

Davies, Jackie 2003. A cuckoo in the nest? A 'range of reasonable responses', justification and the Disability Discrimination Act 1995. Industrial Law Journal 32 (3) , pp. 164-184. 10.1093/ilj/32.3.164

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Abstract

This article considers current interpretation of the justifcation defence within the Disability Discrimination Act 1995 and finds it unsatisfactory. It argues that the Court of Appeal's effective introduction into it of the range of reasonable responses test from unfair dismissal law is conceptually flawed and creates unnecessary procedural complexities. Drawing on analysis by Freer and Freedland, and on Harlow and Rawlings' red light and green light theory of administrative law, it suggests that the range test favours employers and fails to provide a truly objective test of their actions even when applied within its rightful home of unfair dismissal law. It argues that this failure is compounded when the test is transferred to disability discrimination law, where it serves to perpetuate traditional attitudes of employers whose discriminatory decisions may fall within a ‘normal’ range of responses open to a reasonable employer. Examination of the Court of Appeal's reasoning in Jones v Post Office reveals that the range test should be applied only to employers' allegedly discriminatory decisions, not to the investigative processes underpinning those decisions, this being in contrast to application of the test in unfair dismissal law. However, subsequent disability discrimination case law is shown to have blurred this important distinction. The article argues that application of the judicially-modifed justifcation defence adds an unnecessary tier of complexity for employment tribunal panels already struggling to face the challenges posed by an industrial landscape changed by disability discrimination law. The article concludes by suggesting that statutory amendment of the defence is required to re-establish the objective test of employers' actions necessary to ensure compliance with the EU Framework Directive on Employment. Until such time, the already poor success rate for applicants bringing cases under Part II of the Disability Discrimination Act will be further depressed.

Item Type:	Article
Date Type:	Publication
Status:	Published
Schools:	Law
Subjects:	K Law > KD England and Wales
Publisher:	Oxford University Press
ISSN:	0305-9332
Last Modified:	10 Oct 2017 15:33
URI:	https://orca.cardiff.ac.uk/id/eprint/57488

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