Does the employer’s decision-making process need to be considered to determine if disability discrimination can be objectively justified?
Under section 15 of the Equality Act 2010, where an employer treats an employee unfavorably because of something arising as consequence of the employees disability then the employer has a defence to such conduct by showing that the treatment was proportionate means of achieving a legitimate aim and the case of Department of Work and Pensions v Boyers UKEAT/0282/19 Employment Appeal Tribunal (EAT) gave further guidance on this provision.
Employment tribunal
In this case, Mrs Boyers (B) was employed by the Department of Work and Pensions (DWP) and suffered from underlying health issues like migraines together with work-related stress and panic attacks allegedly from bullying /harassment at work.
The employer had tried to address (B) concerns about bullying and harassment, including moving her away from the problem and into a new team but following a difficult telephone call with a customer, (B) went off sick on stress and then raised a grievance over bullying and the way the employer had handled her stress.
After about a year’s sick absence and where a short trial period to get (B) back to work had not worked, the employer decided that (B) was unlikely to be returning back to work for the foreseeable future and terminated her employment. (B) took matter to Employment Tribunal (ET) for unfair dismissal due to disability discrimination.
At the ET hearing the employer accepted that (B) had a disability and was treated unfavourably in particular at time of dismissal they did not have any up-to-date medical evidence in respect of (B)’s health, (B)’s absence had been managed by line managers against whom she had raised a grievance, (B) was dismissed before grievance appeal outcome, employer had not followed their own sickness absence policy and no trial period had been considered bar one that lasted 4 weeks but the issue was whether the dismissal was objectively justified as proportionate means of achieving a legitimate aim by what the employer alleged was protecting scarce public resources and reducing the strain on other employees from (B)’s absence and (ET) upheld (B)’s claim of unfair dismissal.
The employer appealed to Employment Appeal Tribunal (EAT) and the EAT upheld the appeal as the (ET) made an error in concentrating proportionality analysis on the conduct of (B) managers rather than weighing the real needs of the employer’s business and work practices against the discriminatory effect of the dismissal .
On the facts, although the dismissal was unfair that did not necessarily mean that it was also disproportionate, and the disability discrimination claim was remitted to the same Employment Tribunal for redetermination.
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