The EAT has held that an Employment Tribunal erred in law by focussing on the employer’s decision making process when considering if discrimination arising from a disability was objectively justified
The facts
Mrs Boyers was employed by the Department of Work and Pensions (DWP). She suffered from migraines and stress induced panic attacks, which she said were exacerbated by being bullied and harassed by a colleague. Attempts were made to deal with her concerns about bullying and harassment, including moving her away from the colleague and into a new team. After a difficult telephone call with a customer, she was signed off with work related stress. She raised a grievance about how her allegations of bullying and about the way in which her stress and illness had been handled. Apart from a trial period working at a different site (which the DWP decided was not a success), she did not return to work. After about a year’s absence on sick leave, deciding that she would not be able to return to work for the foreseeable future, the DWP terminated her employment.
Mrs Boyers claimed in the Employment Tribunal that she had been unfairly dismissed and had suffered discrimination arising from a disability. The Employment Tribunal upheld her claim of unfair dismissal.
The DWP agreed that Mrs Boyers was disabled, and that the unfavourable treatment she had suffered arose in consequence of her disability. The question for the Employment Tribunal was whether the dismissal was objectively justified – was it a proportionate means of achieving a legitimate aim?
The Employment Tribunal held that the DWP had two legitimate aims: protecting scarce public resources and reducing the impact on other employees from Mrs Boyers absence. However, it held that the dismissal was not justified because it was not a proportionate means of achieving either aim. It held, therefore, that Mrs Boyers had been subjected to discrimination arising from a disability.
The DWP appealed against the discrimination finding on the basis that the Employment Tribunal had erred in law in rejecting its justification defence. The EAT upheld the appeal.
The EAT stated that, in order to assess whether a potentially discriminatory measure (in this case, dismissal) is or is not proportionate, in the context of the legitimate aim being pursued, a tribunal must weigh the real needs of the employer against the discriminatory effect of the proposed dismissal. There must, in this context, be an objective balance between the discriminatory effect of the dismissal and the reasonable needs of the employer. The Employment Tribunal had failed to conduct this objective balancing exercise and had, instead, wrongly focussed on criticism of the DWP’s decision-making process which led to the dismissal. The Employment Tribunal had not assessed the DWP’s needs or discussed evidence in relation to the two legitimate aims. The fact that the dismissal was unfair did not necessarily mean that it was also disproportionate.
The disability discrimination claim was remitted to the same Employment Tribunal for redetermination.
What does this mean for employers?
Successful defence of claims of discrimination arising from a disability will often depend on whether or not an employer can objectively justify the treatment of the employee. Employers who are contemplating action in relation to employees who are (or may be) disabled should consider whether there is a possible link between the action and the disability. If there may be such a link, the employer should consider carefully whether there are other ways of achieving their aims which may have less of a negative impact on the employee.
