Disability discrimination: Unreasonable failure to accommodate disabled employee cannot be justified

In Collins v Royal National Theatre Board Ltd the Court of Appeal holds:

• Where an employment tribunal has found that an employer has failed to comply with the duty under s.6 of the DDA to make reasonable adjustments to accommodate a disabled employee, that failure cannot then be justified under s.5(4) of the DDA.
• This construction of s.5(4), which states that a failure to comply with the s.6 duty will be justified if the reason for the failure is both material to the circumstances of the particular case and substantial, is more demanding than that ascribed by the Court of Appeal in Jones v Post Office [2001] IRLR 384 to the similarly worded s.5(3), which provides for a justification defence to less favourable treatment of a disabled employee.
• This differential construction is appropriate because less favourable treatment, unlike the failure to make reasonable adjustments, is a form of discrimination that is established without the need for any evaluative judgment.