“(1)A person (A) discriminates against a disabled person (B) if—
(a)A treats B unfavourably because of something arising in consequence of B’s disability, and
(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”
Therefore, the burden of proof is on the employer and if they wish to establish justification under this section of the EqA, they will need to prove that the discriminatory treatment was reasonably necessary to them achieving their aim.
When a case is taken to the Employment Tribunal (ET), the judge will have to weigh the discriminatory effect of the treatment against the needs of the employer and determine whether one outweighs the other. Ultimately, the more serious the impact of the treatment, the more well-founded the justification of the treatment must be in order for it not to be discriminatory. Should there be a less discriminatory way of achieving the aim, it will be incredibly difficult for an employer to justify the discrimination under Section 15(1)(b).
Disability discrimination cases can be even more complicated when they involve dismissal and the ET will need to focus on the dismissal itself as well as the process by which the dismissal was achieved. In the recent case of Department for Work and Pensions v Mrs Susan Boyers, the respondent claimed that the claimant’s dismissal was a proportionate means of achieving a legitimate aim. However, the ET did not agree.
What happened in this case?
The claimant worked for the respondent from September 2005 until January 2018 when she was dismissed.
In December 2013, the claimant was referred to the respondent’s occupational health
service concerning the migraines she was suffering from. Around the same time, the claimant raised an issue about a colleague who she said had been bullying and harassing her.
In January 2014, the claimant asked to move desks to be away from this colleague, but this was refused. In April 2014, she asked again and said the increase in her migraines could be a result of stress arising from her colleague’s behaviour. She also disclosed that she had been treated for depression, stress and panic attacks as a result of her colleague’s behaviour.
During 2015 and 2016, the claimant continued to ask to move to a different team or different floor of the building and these requests were all refused. In July 2016, the claimant became upset at work whilst her line manager was on holiday. Another manager intervened and arranged for her to be moved to a different floor immediately. Then, in January 2017, the claimant was moved to a different team.
In February 2017, after a difficult call with a customer, the claimant broke down at her desk. She contacted her GP surgery and received a note that stated she was unfit for work due to work-related stress. The claimant did not return to work until she undertook a work trial at another location later that year.
In March 2017, the claimant submitted a grievance about how the issues of bullying, stress and illness had been handled by the respondent. She stated that she could not return to work anywhere in the centre where she previously worked, but she could see herself returning to work at another location. After investigation, this grievance was not upheld.
The claimant’s line manager offered her a work trial at the Eston centre in June 2017 and she said she was willing to return to work at Eston. The work trial started in September 2017 and by October 2017, the respondent’s managers decided that the work trial had not been a success and the claimant would have to return to work in her previous location. After receiving this news, the claimant was ill with anxiety and depression, and she obtained a GP note stating that she was unfit for work due to work-related stress.
In January 2018, the claimant was dismissed and the reasons for this decision were set out in writing. These reasons included that the trial at Eston had not succeeded and the claimant refused to return to work in other centres.
The claimant brought various claims to the ET under the EqA relating to both the termination of her employment and the way she was treated during her employment.
What did the ET decide?
During the ET’s first judgment, it was found that the claimant’s dismissal was unfair and it was declared discriminatory under the EqA. In particular, it found that dismissal was a disproportionate response for the purposes of Section 15(1)(b) in the EqA.
The respondent argued that it had fairly and lawfully dismissed her for capability reasons. They appealed this decision and questioned whether the ET erred when concluding that the dismissal could not be justified as a proportionate means of achieving its two legitimate aims of; protecting scarce public funds/resources and reducing the strain on other employees caused by the claimant’s absence.
The Employment Appeal Tribunal (EAT) upheld the appeal and remitted the case to the same ET to assess whether the dismissal was proportionate to the respondent’s legitimate aims. The EAT concluded that the ET had wrongly focused on the process leading up to the dismissal decision without properly examining whether the dismissal itself was justified by reference to the aims relied upon by the employer.
Upon remission, the ET reached the same conclusion that the respondent failed to show that its decision to dismiss the claimant was a proportionate means of achieving the identified aims. The ET found that the respondent failed to evaluate the claimant’s work trial in the different role and location, which, if properly evaluated, might have avoided dismissal. The ET concluded for a second time that the claim of discrimination arising from disability was well-founded.
The respondent appealed the ET’s second judgement again stating that the ET erred in law and/or acted perversely in not finding the claimant’s dismissal to have been proportionate.
This second appeal was dismissed.
Getting some advice about discrimination and dismissal claims in London
The case above is a clear example of how an ET will weigh up the reasonable needs of an employer against the discriminatory effect of the treatment experienced. Ultimately, should suitable alternative work be available to an employee, there may be a non-discriminatory alternative to dismissal and an employer’s failure to consider this alternative can result in the dismissal being discriminatory and unfair in the eyes of the law.
If you are experiencing discrimination in the workplace or you think you might have been unfairly dismissed, do not hesitate to contact Damian McCarthy. Damian has extensive experience in employment law and he is regularly instructed to assist with complex claims of discrimination and dismissal. Over the years, Damian has represented clients at the highest levels and he is known for achieving outstanding results. You can trust Damian will always have your best interests in mind and his client-focused approach makes him very popular. To find out more about how Damian can assist you, explore the rest of his website today.