Appeal No.	 EAT/554/01/ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	           On 14 January 2003
Judgment delivered on 11 March 2003

Before
HIS HONOUR JUDGE D SEROTA QC
MR B BEYNON
MR J R CROSBY

MR E MURRAY	APPELLANT

NEWHAM CITIZENS ADVICE BUREAU LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised
______________________________________________________________________________

	APPEARANCES

For the Appellant	MS H WILLIAMS
(of Counsel)
Instructed by:
Messrs Christian Fisher
Solicitors
42 Museum Street
Bloomsbury
London WC1A 1LY	
For the Respondent	MR J STEWART
(of Counsel)
Instructed by:
Messrs Bates Wells & Braithwaite
Solicitors
Cheapside House
138 Cheapside
London EC2V 6BB	

JUDGE D SEROTA QC

Introduction
1	This is an appeal by Mr Edward Murray from the Decision of the Employment Tribunal at London Central, promulgated on 16 March 2001.  The Tribunal was presided over by Ms A M Lewzey.  The Employment Tribunal held that Mr Murray was disabled, within the meaning of the Disability Discrimination Act 1995 (“the Act”).  The Employment Tribunal went on to find that Mr Murray had not been the victim of discrimination on the basis of his disability.  The Employment Tribunal further held that lest it be wrong in its Decision that Mr Murray had not been discriminated against on the grounds of his disability, it would find that the less favourable treatment he received was justified.  The Employment Tribunal also refused to permit Mr Murray to amend his Originating Application to add a claim for breach of section 5(2) of the Act.

2	There is no appeal against the finding that Mr Murray was subject to a disability, within the meaning of the Act, nor is there an appeal against the refusal of permission to amend.  The EAT (presided over by HH Judge Levy QC) on 10 December 2001) allowed Mr Murray’s appeals to proceed to a full hearing in relation to the finding that he had not been discriminated against by reason of his disability, and that if he had been discriminated against by reason of his disability, such discrimination was justified.  

History and factual background
3	Mr Murray has the misfortune to suffer from paranoid schizophrenia.  Paranoid schizophrenia can be controlled by medication and other treatment, but is otherwise incurable.  Mr Murray began to suffer from paranoid delusions in 1985, but it was only in 1993 that he was diagnosed as suffering from paranoid schizophrenia.  At the time, he was studying for a law degree at the London School of Economics.  His psychological illness deteriorated and he stabbed a neighbour with a knife.  He spent some time on remand in Brixton Prison, and thereafter, spent time at a secure unit at Horton Hospital.  He was then diagnosed as suffering from paranoid schizophrenia and received treatment and appropriate medication.  

4	In June 1998, he became interested in working as a volunteer at a Citizens Advice Bureau, and made application to a number of bureaux.  On 11 November 1998, he attended a pre-selection meeting with the Deputy Manager of Newham Citizens Advice Bureau, Ms K Batchelot.  Newham Citizens Advice Bureau operated a bureau in London Docklands.  The purpose of the pre-selection meeting (which was attended by two other potential volunteers) was to enable Ms Batchelot to explain the aims, principles, policies and training to would-be applicants, as well as the amount of time required to be spent, travel expenses, days of availability and commitment required.  Applicants who were interested in taking matters further could then telephone and attend the CAB to see the nature of the work undertaken at first hand and then proceed to a selection interview.

5	During the course of Mr Murray’s meeting with Ms Batchelot, he disclosed that he had been diagnosed as a paranoid schizophrenic, and that he had been in prison for stabbing someone.  The Employment Tribunal was satisfied that Ms Batchelot had no problems with Mr Murray’s illness, but was concerned that he had been involved in a violent incident.  This was a matter of great concern to the CAB, particularly as volunteers might be exposed to conditions of some stress.  Ms Batchelot reported the matter to the CAB Manager, Ms Stella Young.  Ms Young was concerned about the matter and discussed the matter with a Regional Development Officer of NACAB (the National Association of Citizens Advice Bureaux) London Region.  Ms Young was advised to outline her concerns about the effect of severe pressures on Mr Murray’s health, and suggest an alternative volunteering outlet for him that would reduce these risks.  She was also advised that she could ask for consent to contact Mr Murray’s GP and request his opinion on risks that might be posed by the employment of Mr  Murray as a volunteer.  

6	On 9 December 1998, Mr Murray, who had informed the CAB that he wished to take his application forward, attended an interview with Ms Young.  It is common ground that Ms Young told him of stresses to which volunteers might be subject, and that some of the clients, who were vulnerable people, might because of the nature and scale of their issues, become abusive and aggressive.  There had been recent incidents when advisers had been subject to violence and abuse.  She suggested that Mr Murray might like to consider starting in a less stressful environment than that of the CAB in Docklands.  Mr Murray told her that his psychiatrist:
“at the time had assured him that stress was not a material factor in his illness”
Ms Young then suggested that Mr Murray might wish to start at a less stressful and pressurised CAB and offered to look into matters for him to find a quiet office for his training.  According to Ms Young, Mr Murray raised objections to her decision and considered the options provided by her, but appeared to accept the outcome.  Mr Murray’s statement suggests that when he attended the interview, it was clear that Ms Young had decided not to take him on.  The Employment Tribunal made no finding as to whether or not Mr Murray appeared to accept Ms Young’s proposal that she should attempt to put him in touch with a less stressful CAB.  Whatever the position, it is common ground that Ms Young went on sick leave for eight weeks, and never responded to Mr Murray at all.  The Employment Tribunal found that:
“Mr Murray confirmed that he agreed with the discussions that took place with Ms Young as set out in her witness statement.”

This is somewhat ambiguous, because it does not make clear whether the Employment Tribunal found as a fact that Mr Murray had agreed with the proposal made by Ms Young, and agreed not to pursue his application to Newham CAB.

7	Mr Murray presented his Originating Application on 22 February 1999.  It was heard on 13 and 14 February 2001, and the Extended Reasons were, as we have recorded, promulgated on 16 March 2001.  

The Decision of the Employment Tribunal on disability and discrimination
on the ground of disability

8	Section 1(1) of the Act provides:
“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

Paragraph 1(1) of Schedule 1 of the Act provides that:
“Mental impairment” includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.”
We need not set out the provisions of the Act that amplify whether an impairment has a long-term effect, and whether it affects the ability of the person carrying out normal day-to-day activities.  

9	The Employment Tribunal found that Mr Murray was a paranoid schizophrenic and schizophrenia was a clinically well-recognised mental illness.  It was therefore a mental impairment.  The Employment Tribunal found that his illness affected his normal day-to-day activities to a substantial degree, and that his condition was permanent and would have to be controlled by drugs for the rest of his life.  They came to the conclusion accordingly, that he was disabled within the meaning of section 1(1) and Schedule 1 to the Act.  On the material before the Employment Tribunal, this decision is clearly right and there is no appeal against it.  

10	Mr Murray had to prove, however, that he was subject to discrimination on the grounds of his disability.  Mr Murray brought his complaint under section 4(1)(c) of the Act which provided:
“(1)  It is unlawful for an employer to discriminate against a disabled person -
 ….
(c) by refusing to offer, or deliberately not offering, him employment.”

The Employment Tribunal made the following findings:

“34 …..the Tribunal was satisfied that the reason Mr Murray was refused the offer of the introductory induction was a concern by the Respondent that Mr Murray might be under stress and might react to it in a violent way, given that the Silvertown CAB was an inner-city Citizens Advice Bureau which attracted vulnerable members of society who could be angry or violent themselves.  The type of client could lead to a more stressful situation.  We were satisfied that it was for this reason that Ms Young suggested to Mr Murray, which he accepts, that he should commence at a less stressful branch.  We are satisfied that this reason related to the previous incident of stabbing someone and not to Mr Murray’s paranoid schizophrenia”
     	       [our underlining]

The Employment Tribunal then had this to say at paragraph 39:

“As we have already found, the evidence shows that the reason for not offering Mr Murray the opportunity to the introductory induction was the Respondent’s concern that there could be a recurrence of the stabbing incident.  This is a condition which results from the illness of paranoid schizophrenia.  The medical report of Dr Ronan McIver indicated that the stabbing incident and tendency to inflict violence was a direct result of the illness of paranoid schizophrenia.  In this case the condition that resulted in the Respondent’s condition was the tendency to attack others, which is not itself mental impairment.”
	       [our underlining]

“40     It is the unanimous decision of the Tribunal that the less favourable treatment in refusing to offer an introductory induction was not for a reason relating to Mr Murray’s disability.”

11	The Employment Tribunal based its Decision upon a consideration of section 5(1)(a) of the Act, Schedule 1, paragraph 1(2)(b) of the Act, and Regulation 4 of the Disability Discrimination (Meaning of Disability) Regulations 1996.  Section 5(1)(a) of the Act provides:

“(1) For the purposes of this Part, an employer 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; and
(b) he cannot show that the treatment in question is justified.”

Paragraph 1(2)(b) of Schedule 1 to the Act provides:
“(2) Regulations may make provisions, for the purposes of this Act -
…
	(b) for conditions of a prescribed description to be treated as not amounting to 
      impairments”

Regulation 4 of the of the Disability Discrimination (Meaning of Disability) Regulations 1996 provides:
“4  Other conditions not to be treated as amounting to impairments-
….
	(c) a tendency to physical or sexual abuse of other persons.”

The Employment Tribunal found that Mr Murray’s tendency to violence was a condition that fell within Regulation 4 of the 1996 Regulations and that accordingly,  could not be considered to be a disability within the meaning of section 1 of the Act.  Accordingly, Mr Murray had not been discriminated against by being treated less favourably for a reason which relates to [his] disability.

12	Ms Williams, who appeared for Mr Murray, submitted that the 1996 Regulations did not apply to conditions which are the consequences of a recognised disability but to what might be regarded as free-standing conditions.  Once it is found that an applicant is subject to a disability within the meaning of section 1 of the Act, Ms Williams submitted that the Regulations are irrelevant if the condition which the Applicant suffers is a consequence of the disability.  It was further submitted that there is nothing in the Act to justify the Respondent’s case which was accepted by the Employment Tribunal, that where a person with a mental illness, which is admittedly a disability under the Act, has a condition referred to in the 1996 Regulations, that condition is to be excluded from the ambit of his disability for the purposes of the Act.  Ms Williams submitted that, if necessary, we should place a purposive construction on section 1 of the Act, as otherwise disabled persons would be deprived of the protection afforded by the Act in that employers would be permitted to distinguish the disability on the one hand, and its manifestations on the other.  

13	On behalf of the Respondent, Mr Stuart sought to uphold the Decision of the Employment Tribunal.  We hope we do justice to his submissions when we observe that he seemed to have little enthusiasm for this part of his case.  Mr Stuart submitted that an employer might discriminate against a disabled person on any ground set out in the 1996 Regulations.  If, he submitted, an applicant suffered from any condition referred to in those Regulations, he was outwith the protection of the Act, so far as concerned less favourable treatment on the grounds of that condition alone.  

14	We prefer the submissions of Ms Williams in this regard.  However, it seems to us that the language of the statute of the Regulations is clear and it is unnecessary for us to give a purposive construction to section 1 of the Act.  It is clear that Mr Murray suffered from a disability within the meaning of section 1, as the Employment Tribunal held in paragraph 39 of its Decision.  Section 1 and section 5 of the Act refer to a person having a “disability” which is a “physical or mental impairment”.  Paragraph 1(2)(b) [of Schedule 1] provides for “conditions” to be treated as “not amounting to impairments”.  Parliament could have excluded conditions such as those provided for in Regulation 4(1) of the 1996 Regulations, from being treated as part of a disabled person’s disability, so far as the protection of the Act was concerned; it did not.  Parliament could also have provided discrimination against a disabled person, by reason of his having a condition specified by the 1996 Regulations, was outwith the protection of the Act.  Again, it did not do so.  In our opinion, the language of the provisions to which we have referred is clear.  “Conditions” within the meaning of paragraph 1(2)(b) of the Act refer to freestanding conditions, and not to those conditions that are the direct consequences of a physical or mental impairment, within the meaning of section 1(1).  Mr Murray’s tendency to violence was found by the Employment Tribunal to be a consequence of the well-recognised mental illness of paranoid schizophrenia.  

15	In our judgment, where a person such as Mr Murray suffers from a recognised illness such as paranoid schizophrenia, a consequence of which is a tendency to violence, a potential employer may only treat him less favourably than other persons if he can justify that discrimination under section 5(1)(b) of the Act.  The Employment Tribunal was in error, and should have held on the basis of the facts found, that if Mr Murray was treated less favourably by reason of a tendency to violence, then that amounted to discrimination on the grounds of his disability, which the Respondent was required to justify under section 5(1)(b) of the Act.  The tendency to violence was a manifestation of his disability.

The Employment Tribunal’s Decision on justification
16 (a) The Employment Tribunal’ Reasons
The Decision of the Employment Tribunal on this aspect of the case was brief.  The Employment Tribunal, having already concluded that Mr Murray had not been discriminated against on the grounds of his disability, nonetheless, went on to consider the issue of justification, lest it be wrong in its earlier decision.  It is perhaps significant that although there was a volume of medical evidence before the Employment Tribunal, there is only a passing reference to this in the Extended Reasons.  In paragraph 19 the Employment Tribunal recorded Mr Murray’s evidence:
“that his psychiatrist at the time had assured him that stress was not a material factor in his illness”

We have already noted that this was a reference to his current psychiatrist, Dr McIver.  In paragraph 45 of the Extended Reasons, the Employment Tribunal conclude:
“45……..In the case of a Citizens Advice Bureau in Inner London attended by vulnerable and worried members of society, the issue of whether a potential volunteer had a propensity to inflict violence is material to the circumstances of the particular case and, in the context, substantial.
46	Having taken this into account, it is the unanimous decision of the Tribunal that the Respondent was justified in refusing to offer Mr Murray an introductory induction that might lead to training for a volunteer post”

17	There was significant medical evidence available to the Employment Tribunal, but not referred to.  The only reference that we have found is a passing reference in paragraph 39:
“The medical report of Dr Ronan McIver indicated that the stabbing incident and tendency to inflict violence was a direct result of the illness of paranoid schizophrenia.”
Dr McIver prepared a report for the Employment Tribunal and gave oral evidence.  Dr McIver’s opinion was that the risk of recurrence of a violent incident was “very low indeed”, although there was a possibility of a relapse if Mr Murray were to cease taking his medication.  

18	We should also recall that the Employment Tribunal had before it a letter written by Mr Murray to his General Practitioner, dating from September 1999.  This letter was included in his medical records.  In the letter, Mr Murray maintained:
“I have difficulties coping with all areas of personal care, I do not have the motivation to get up, get dressed, move about indoors, etc.  I cannot go outdoors without someone with me.  I tend to get paranoid at bus stops and on the streets when I am out.”
Mr Murray asked Dr Steel, his GP, to write a medical report substantiating as much as she could of what Mr Murray had set out in the letter.  Mr Murray’s evidence was that the contents of this letter were false and that the letter was intended to assist him in obtaining a Disability Living Allowance.  Dr McIver was inclined to accept Mr Murray’s explanation.  Whatever the truth of the matter, this letter does little for Mr Murray’s credit or credibility. 

19	Medical records also show concern expressed by Mr Murray’s medical practitioners about excessive drinking and general concerns as to his condition in late 1998 and early 1999.  

20	It is possible that this evidence did play some part in the Employment Tribunal’s Decision, but no reference is made at all to the matters which we have just referred to.  Some of this evidence might clearly be regarded as controversial.  We do not know how the Employment Tribunal view the risks to the Respondent of employing Mr Murray on the basis of the factual information that was before the Respondent when it took its decision not to offer him a place on the induction course.  Neither do we know what level of risk the Employment Tribunal concluded the Respondent considered Mr Murray to pose at the time his application was rejected.

21 (b) The Applicant’s submissions
In essence, Ms Williams submitted that the issue of adequate investigation had been raised before the Employment Tribunal and the Employment Tribunal should have considered whether or not adequate investigation had been carried out.  The adequacy of the investigation is relevant to issues of justification. She did not invite us to find that the Respondent was bound to have sought information from the Applicant’s GP because she submitted it was sufficient for her purposes, that the Employment Tribunal had failed to consider the adequacy or otherwise of the investigation actually carried out.  She further submitted that once it was demonstrated that no proper enquiries were undertaken, it would not be necessary to consider what those enquiries might have revealed, so far as liability was concerned.  

22	Mr Stuart submitted that the threshold of proving justification was low and that if the employers gave a reason that could be justified by evidence (even if that evidence was not before the employer when taking the relevant decision) then the employer’s decision cannot be regarded as inappropriate, unless it was “irrational”.  Mr Stuart went on to submit that the appropriate test was whether the reason given as justification (in this case the risk) was material and substantial.  If the reason given was irrational (as it would be where there was no evidence at all before the employer to support it).  However, if there was some evidential material upon which the employer formed the view that there was a “reason” which was both substantial and material, then it would not be for an Employment Tribunal to say the employer could or should have carried out a fuller or better investigation or that it disagreed with the decision of the employer.  In the present case, the risk was “very low”, but that was sufficient to justify the Decision of the Employment Tribunal.  Mr Stuart conceded that a reasonable employer may have carried out further enquiries, but failure to carry out those enquiries did not make the decision of the employer in this case irrational.  Mr Stuart pointed to evidence before the Employment Tribunal that was available to support the employer’s decision, so it was not for the Employment Tribunal to substitute its own views for those of the employer.  

23 (c) The Authorities
The threshold for determining whether discriminatory treatment of a disabled person is justified is “very low”; see Sir John Lindsay P in Heinz -v- Kenrick [2000] IRLR 144 para 16.  It is clear that an Employment Tribunal may not substitute its views on the merits for those of the employer “provided the employer has taken into account all the evidence reasonably available to it” per Kay LJ in Jones -v- Post Office [2001] IRLR 384 para 32.  In Surrey Police -v- Marshall [2002] IRLR 843 at paragraph 30, Sir John Lindsay P, suggested that the issue was:
“whether there was material in Dr Cahill’s [the employer’s medical adviser] hands by the point of decision on which a decision such as she made could properly have been made and as to whether it was a decision open to a reasonable decision-maker on the material before her.”
Sir John Lindsay P observed later in the judgment at paragraph 39:
“One does not prove that a reason for a person’s treatment is not “material to the circumstances of the particular case and substantial” needed by showing that it was not as material or as substantial as it could have possibly have been.”

24	Section 5(3) of the Act was considered extensively in Jones -v- Post Office [supra] Pill J had this to say at paragraph 25:
“Upon a consideration of the wording in s5(3) in context, I conclude that the employment tribunal are confined to considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial……..In order to rely on s.5(3) it is not enough for the employer to assert that his conduct was reasonable in a general way: he has to establish that the reason given satisfies the statutory criteria ……Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the Tribunal cannot substitute its own appraisal.  The employment tribunal must consider whether the reason meets the statutory criteria; it does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment.”

25	Pill J continued at paragraph 26:
“Consideration of the statutory criteria may also involve an assessment of the employer’s decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken.  Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence or was an irrational decision as being beyond the range of responses open to a reasonable decision-maker ……..the employment tribunal could hold the reason insufficient and the treatment unjustified.”

Pill J went on to liken the task of the employment tribunal in considering the materiality and substantiality of the reason given with its duty to consider the reasonableness of a dismissal on the “band or range of reasonable responses” approach:

“In both cases, 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, in the one case if it is within the range of reasonable responses and in the other if the reason given is material and substantial.”

26	Arden LJ considered at length meaning of the words “material” and “substantial” in section 5(3).  She held that it was clear that the standard by which the employer’s reason was to be reviewed was “an objective one and not a subjective one”; see paragraph 35.  She went on to say that:
“ ‘Material’ denotes the quality of the connection which must exist between, on the one hand, the employer’s reason for discriminating against the employee and, on the other hand, the circumstances of the particular case.  …. Mr Griffith-Jones submits that ‘material’ means ‘relevant’.  As to this, it is often said that there are degrees of relevance.  In this context, I would add to Mr Griffith-Jones’ submission the rider that it is not sufficient that the connection is an extenuated one.  The use of the word ‘material’ rather than ‘relevant’ or ‘applicable’ indicates to me that there must be a reasonably strong connection between the employer’s reason and the circumstances of the individual case.  The strength of this connection involves largely a factual enquiry.  It ought not to involve an enquiry into medical evidence, since such an enquiry is relevant if at all, to the second limb of section 5(3)…….
The second requirement in s.5(3) is that the reason should be ‘substantial’,  This means, in my judgment, that the reason which the employer adopted as his ground for discrimination must carry real weight and thus be of substance.  However the word ‘substantial’ does not mean that the employer must necessarily have reached the best conclusion that could be reached in the light of all known medical science.  Employers are not obliged to search for the Holy Grail.  It is sufficient is if their conclusion is one which on a critical examination is found to have substance.  Thus a reason which on analysis is meretricious would not be a ‘substantial’ reason.  It would fail to meet the test in s.5(3).  
A tribunal faced with a claim of justification may well find it helpful to proceed by asking the following questions:
What was the employee’s disability?
What was the discrimination by the employer in respect of the employee’s disability?
What was the employer’s reason for treating the employee in this way?
Is there a sufficient connection between the employer’s reason for discrimination and the circumstances of the particular case (including those of the employer)?
Is that reason on examination a substantial reason?
The first three of those questions involve pure questions of fact.  The fourth and fifth questions, however, involve questions of judgment.  The latter questions may involve hearing expert evidence, but the employment tribunal should not conduct an enquiry into what is the best course of action to take in all the circumstances of the case.  Nor are the tribunal required to be persuaded themselves.  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 that to which the employer came, would have been preferable.  Nor can they conclude that justification has not been shown simply because they entertain doubts as to the correctness of the employer’s conclusion.  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, however, the employer’s reason is outside the band of responses which a reasonable employer might have adopted, the reason would not be substantial.  …….. In short, so far as the second limb of section 5(3) of the 1995 Act is concerned, justification is shown provided that the employer’s reason is supportable.”
We also bear in mind what Arden LJ had to say about the various levels of protection that a statute lay down for an employee in different situations, and that which has been afforded by the Act.

27	In Surrey Police -v- Marshall (supra) the EAT, presided over by John Lindsay P made clear that medical evidence obtained after the decision of the employer in question, and not in its hands at the point of its decision, was relevant to a determination of the credibility and rationality of the employer’s decision.  Such evidence could not be used to show that the decision was right or wrong, in the light of that evidence, but whether there was material in the employer’s hands by the point of decision on which the decision made could properly have been made, and whether that decision was open to a reasonable decision on the material before it.  

Conclusion
28	It is clear that an Employment Tribunal is not permitted to substitute its views as to the merits of the decision of a prospective employer for those of the prospective employer.  However, an employer must make such enquiries as are appropriate in the circumstances of the case.  These circumstances are bound to vary infinitely.  However, it must be borne in mind, in particular, that a prospective employer cannot be expected to carry out the rigorous investigation that might be expected of an employer who already employs a disabled person.  It should also be borne in mind that a prospective employer may have to deal with numerous applications and clearly cannot be expected to carry out any form of detailed checks or seek medical evidence in respect of every applicant.  

29	In our opinion, having regard to the authorities which we have cited, it is insufficient for an employer who has to justify less favourable treatment to say “This is the reason for the less favourable treatment.  It is justified on the evidence before the Tribunal.”  A prospective employer must, if he seeks to rely upon the defence of justification, show that the justification was based on material that it had before it at the time it took the relevant decision.  An Employment Tribunal should only interfere where the prospective employer’s investigations are outside the reasonable range of responses by a reasonable prospective employer, in the circumstances.  In the case of an employer who has failed to carry out reasonable investigations an Employment Tribunal may hold that the reason was insufficient and the less favourable treatment unjustified.  In a case where the employer failed to obtain the appropriate information which may, in the event, have justified its decision, that evidence cannot provide ex post facto justification, but might be relevant to the question of compensation.  It might be open to the respondent to show that the applicant would, had a proper enquiry been carried out, have never been appointed, or that his chances of appointment would have been problematical.  

30	We note in passing, that in both London Borough of Hammersmith & Fulham -v- Farnsworth (supra) and Surrey Police -v- Marshall (supra) prospective employers were held to be at fault in failing to carry out appropriate medical enquiries.  

31	As we have said earlier, Mr Murray does not ask us to make a finding that the Respondent should have made enquiries of his General Practitioner; he simply asks us to find that the Employment Tribunal failed to consider whether appropriate enquiries had been carried out.  We are, nonetheless, of the opinion, that if the Respondent had taken a decision to decline to accept the Applicant’s circumstances where it had been advised to seek his consent to approach his GP and to which request Mr Murray would have agreed, it was under an obligation to follow that course.  Nevertheless, the facts found by the Employment Tribunal are not altogether clear, both in relation to whether the decision was communicated to Mr Murray that he would not be considered for a post, and as to whether Mr Murray in fact agreed that he should seek a post with another Citizens Advice Bureau.  

32	We agree with the conclusion of the Employment Tribunal in paragraph 45:
“In the case of a Citizens Advice Bureau in inner London attended by vulnerable and worried members of society, the issue of whether a potential volunteer had a propensity to inflict violence is material to the circumstances of the particular case and, in the context, substantial.”

The issue in the case is however, not whether the reason is capable of being material and substantial, but whether or not the Respondent had sufficient material and had carried out adequate enquiries to justify its decision. The Employment Tribunal should firstly consider what material the Respondent had at the time of the interview to justify its decision. It should then consider whether on the basis we have mentioned, the Respondent should properly have sought additional information from Mr Murray's GP and medical advisers. If the Employment Tribunal comes to the conclusion that the decision not to seek further information was within the reasonable band of responses it should consider whether upon the information that the Respondent had, the decision not to offer Mr Murray a post was for a reason that was both material and substantial. So far as concerns Mr Murray that information would need to show that Mr Murray was reasonably considered to pose a real, as opposed to a fanciful, threat to clients. In determining this issue the Employment Tribunal would be entitled to have regard to material not before Ms Young at the time of the interview, insofar as it throws light on the credibility and rationality of Ms White. It may assist in determining whether the decision not to offer a post to Mr Murray because of his supposed risk was one that could properly have been made by Ms Young on the material before her and whether it was a decision open to her as a reasonable decision taker on that material. 

33	Should the Employment Tribunal conclude that inadequate enquiries were made and that the failure to seek further information from Mr Murray's medical advisers was outwith the reasonable band of responses of a responsible employer, then it may find the reason for the decision not to offer Mr Murray a post to be insufficient and unjustified. In the circumstances we remit the matter to be considered by a differently constituted Employment Tribunal to consider whether the defence of justification has been made out in accordance with our decision.