In the recent case of The Department for Work and Pensions v Boyers, the Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s finding that the claimant’s dismissal constituted discrimination arising from disability under Section 15 of the Equality Act 2010 because her dismissal was not a proportionate means of achieving the respondent’s legitimate aims.
Mrs Boyers worked for the Department of Work and Pensions (DWP) as an administrative officer in Middlesbrough. In December 2013, it was established that she was disabled for the purposes of the Equality Act 2010 by reason of recurrent migraines.
At the end of 2013, Mrs Boyers had issues with a colleague whom she regarded as bullying and harassing her. Mrs Boyers believed that the treatment she had received from this colleague had led to a stress-induced increase in the frequency of her migraines.
Mrs Boyer’s repeated requests to move to a desk away from the college, or to move to a different team or a different floor of the building, were refused. From February 2017, Boyers was absent from work due to stress. During this time, she submitted a grievance about the way her managers had dealt with her health problems and the bullying complaint. The grievance was investigated and rejected.
Towards the end of 2017, Mrs Boyers confirmed that she was willing to work, but not at the Middlesbrough office. She had a six-week trial at an alternative location, but the DWP decided that this was not successful and ordered her to return to Middlesbrough. Mrs Boyers felt unable to do so and remained on sick leave. She was eventually dismissed for capability reasons in January 2018.
Mrs Boyers brought various complaints before an Employment Tribunal including, among other things, discrimination arising from disability under Section 15 Eq A. The Employment Tribunal found that the DWP’s decision to dismiss her breached Section 15 EqA. It found that dismissal was not a proportionate response for the purposes of Section 15(1)(b) EqA.
The DWP appealed successfully to the EAT. It held that the Tribunal had wrongly focused on the procedure leading to the dismissal decision without properly examining whether the outcome itself was justified by reference to the aims the DWP relied on, and it remitted to the same Tribunal the task of assessing whether the dismissal was proportionate to the DWP’s legitimate aims.
Upon remittal, the Tribunal reached the same conclusion that Mrs Boyer’s dismissal was disproportionate and, therefore, discriminatory. The DWP appealed again. The EAT dismissed the DWP’s second appeal.
The Tribunal had properly carried out the balancing exercise required of it and permissibly decided that Mrs Boyer’s dismissal was disproportionate by reference to the DWP’s failure to evaluate the trial Mrs Boyers had undergone and which, if properly evaluated, might have avoided dismissal.
The EAT’s previous judgment, in this case, was not authority for the proposition that the procedure leading to dismissal was irrelevant to the balancing exercise, so long as the Tribunal remained focused on the question of whether the outcome of the decision-making process was capable of justification.
A tribunal is entitled to weigh in the balance the procedure by which dismissal was achieved. It will be more difficult for a respondent to show that it acted proportionately when dismissing a disabled employee if, as happened in this case, it provides no evidence regarding how its decision-makers thought their actions would serve the legitimate aims relied upon. It will also be more difficult for a respondent to show that it acted proportionately when dismissing a disabled employee if it has had no evidence regarding how, as part of the process leading to dismissal, its decision-makers considered other, less discriminatory, alternatives. The EAT held that this case was a good example of how that failure in the process can properly form part of the necessary balancing exercise.
The EAT also rejected the DWP’s submission that the assessment of proportionality was constrained by the terms of a claimant’s contract of employment relating to matters such as place of work. It held that it would undermine the protection afforded to disabled people if a tribunal was unable to weigh in the balance, for the purposes of Section 15(1)(b) EqA, the prospect of redeployment to another role outside the strict terms of the contract of employment. If suitable alternative work is available somewhere other than the place the employee is contractually obliged to be, there may be a non-discriminatory alternative to dismissal, and an employer’s failure to consider that alternative can properly inform the tribunal’s analysis.
The EAT further rejected the DWP’s submission that a dismissal could not be disproportionate if there was no corresponding duty to make reasonable adjustments. The EAT held that it does not follow that no dismissal can ever be disproportionate where no reasonable adjustment can be made.
Feel free to contact our solicitors if you are facing a situation involving discrimination in your workplace and you need legal advice in relation to any aspect of disability discrimination and the reasonable adjustments required by employers.
Farideh Moallemi is an employment solicitor. She has over 11 years of experience in advising employees and employers on employment law matters. Farideh has represented clients in the employment tribunal and County Courts. Farideh is a member of The Law Society. To contact Farideh, visit the Contact Us page. For media enquiries: info@dphlegal.com