EAT – dismissing employee without properly considering alternative solutions was disability discrimination

EAT finds that failing to consider alternative solutions, beyond the strict terms of a contract of employment, when deciding to dismiss a disabled person is capable of constituting discrimination arising from disability.

In Department for Work and Pensions v Boyers [2022] EAT 76, handed down on 15 June 2022, the Employment Appeal Tribunal (“EAT”) held that dismissing a disabled worker without considering the prospects of redeployment beyond the strict terms of an employment contract is capable of being a disproportionate means of achieving a legitimate aim for the purposes of s 15(1)(b) Equality Act 2010 (“EqA 2010”). 

We at Farore Law often deal with discrimination claims, including discrimination arising from disability under s 15 EqA 2010. Boyers is an interesting decision, as it illustrates the pitfalls of employers who resort to dismissing a disabled person for capability reasons without considering less discriminatory alternatives, even if these alternatives go beyond the strict terms of the employment contract.

Section 15(1) provides that “a person (A) discriminates against a disabled person (B) if –

1. (a) A treats B unfavourably because of something arising in consequence of B’s disability, and

2. (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

Section 15(2) EqA 2010 states that subsection (1) does not apply if “A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”

Background 

The Claimant worked at the Respondent’s Middlesborough office from September 2005 until January 2018, when she was dismissed. Prior to her dismissal, the Claimant became absent for nearly a year due to sickness, save for a few weeks in September to October 2017, when the Respondent implemented a trial period for the Claimant in a different location and role.

The Claimant was a disabled person who suffered from chronic migraine and mixed anxiety and depressive disorder. The Claimant had also alleged that her colleagues at Middlesborough bullied and harassed her, exacerbating her mental health problems.

The Respondent suggested that the Claimant go through a work trial at their offices in Eston where the Claimant would not be required to face her colleagues who she believed caused her mental health problems. However, the Respondent did not think that the work trial was successful and ordered the Claimant to return to Middlesborough without notice.

The Claimant was subsequently dismissed because of capability reasons – due to her length of absence. The Claimant then brought a claim against the Respondent for discrimination arising from disability.

A key issue in this case was the application of s 15(1)(b) EqA 2010, namely, whether the Respondent could show that the treatment is a proportionate means of achieving a legitimate aim. If it could, it would be a complete defence to a s.15 claim.

The Respondents in this case argued that they were pursuing two legitimate aims: (i) protecting scarce public resources; and (ii) reducing the strain on other employees from the Department of Work and Pensions (“DWP”) resulting from the Claimant’s absence.

The Respondents also argued that, when deciding whether dismissing a person would be proportionate, they were not required to consider alternatives that went beyond the strict terms of the contract of employment. In this case, the DWP argued that the Claimant was expressly obligated to work at the Middlesborough office and that the Respondent was entitled to hold her to that obligation.

First Employment Tribunal (“ET”) decision 

It was accepted that the Claimant was disabled and she succeeded in her unfair dismissal and s 15 EqA 2010 claims. As it was not in dispute that the dismissal constituted unfavourable treatment because of something arising in consequence of the Claimant’s disability under s 15(1)(a), the key issue was whether the Respondent had shown that the dismissal was nonetheless proportionate.

The ET held that the dismissal was disproportionate, as the dismissal officer had no up to date medical evidence before her and showed “no appreciation that the [C]laimant was a disabled person”. Further, the ET noted that there were various aspects of the work trial at Eston which were carried out unreasonably, such as how the training provided to the Claimant was limited and that the trial was withdrawn without notice or explanation or discussion with the Claimant or any right of review or appeal. The ET also commented that the Respondent had no consideration to the fact that the Claimant had managed to return to work during her work trial after a lengthy absence and failed to see that as a sign that a return to work was possible. The decision-making process of the dismissal officer was one which solely focussed on the negative aspects of the work trial.

The Respondent’s appealed to the EAT. The appeal was limited to whether ET erred that the dismissal could not be justified as a proportionate means of achieving its legitimate aims.

First EAT decision 

The EAT decided that the ET had fallen into error by basing its analysis of proportionality on the thought processes of the dismissing officer, rather than balancing the needs of the Respondent (with reference to the legitimate aims pursued) and the discriminatory impact of dismissing the Claimant. For example, the ET did not set out the evidence on how the Claimant’s continued employment would place a strain on public funds nor how the Claimant’s continued absence was causing a strain to the workforce. As such the ET failed to show full reasons why it rejected the Respondent’s defence.

The EAT remitted the assessment of justification back to the same ET for redetermination.

Second ET decision 

The tribunal reached the same conclusion as before – the Respondent had failed to show that the decision to dismiss was a proportionate means to achieve the identified aims. On the facts, the Respondent had no evidence relevant to the legitimate aims it had identified.

The ET went on to discuss the two legitimate aims in detail. It noted that, in relation to the scarcity of public resources, the ongoing cost of public funds was small in the overall scheme of things. Although the ET accepted that by delaying the Claimant’s dismissal to enable a proper evaluation of the work trial to take place and consider whether it could be repeated or re-instated would have involved management time in terms of preparation and possible implementation, the cost of that input was small. The ET stated that it “cannot be right that this… respondent can rely as a basis for dismissal on avoiding the reasonable demands of meeting its employment law obligations in terms of managing an absence through the ill health of an employee. The question is whether that absence is sustainable in terms of public funds”. The evidence before the ET was that the ongoing cost to public funds of continuing the claimant’s employment for a further period to check on the question of the work trial and consequent employment was small and noted that the act of dismissal was a greater burden to public funds, as the Claimant became entitled to compensation from the Civil Service Compensation Fund of £19,000, a sum that could have been avoided or delayed if the Claimant was not dismissed.

Regarding whether the Claimant’s dismissal could reduce the strain on employees, the ET noted that the dismissing officer did not rely on this justification and that the stated effect is not obvious, so the ET needed evidence before it. The DWP is a large employer and is therefore common to moving members of staff to cover absences.

The DWP appealed to the EAT again.

EAT outcome 

The first ground that the EAT considered is whether the ET erred in law and/or acted perversely in not finding that the dismissal was proportionate, given the unchallenged evidence that the Claimant had refused to return to her contracted place of work to perform any duties of her employment alongside her former colleagues; and that there was no evidence to suggest that there was a real prospect for the Claimant to return to her contracted place of work to perform her duties.

Central to the DWP’s argument is that the ET should have limited itself to the particular job that the Claimant was contracted to perform. Given that the contracted place of work was at Middlesborough, the procedural failings arising from the termination of the work trial was immaterial for the purposes of the balancing exercise in s 15(1)(b). The EAT held that the ET had properly directed itself at the law. Where appropriate, the balancing exercise should extend beyond the strict terms of the contract. The ET’s first judgment, supplemented by and read together with its second judgment, adequately explains why the ET had considered it relevant to the balancing exercise that the Respondent had not properly evaluated the work trial at Eston and its conclusion that, if the evaluation had been properly carried out, there was a chance that the Claimant could have continued her employment with the Respondent.

The other ground of appeal was whether, when determining proportionality, the ET erred by imposing a duty on the Respondent to investigate deploying the Claimant on different duties in different locations. The EAT held that although what must be justified is the outcome of the decision-making process itself, it does not follow that the procedure behind the dismissal becomes irrelevant. For example, evidence that other options had been considered by the dismissing officer and rejected (for reasons which the ET perceives as reasonable) may give confidence to the ET that the decision was justified. It becomes difficult to establish proportionality if the Respondent had no evidence of how the decision-maker thought that their actions would serve their legitimate aims or whether the decision-maker considered less discriminatory alternatives to a dismissal.

For those reasons, the EAT concluded that ET had no error in law and the appeal was dismissed.

Comment and take aways 

Judge Barry Clarke commented that it would seriously undermine the protections under s 15 EqA 2010 if the assessment of proportionality (and alternative options to avoid dismissal) could not go beyond the strict terms of the employment contract. The judge noted that contractual terms can in itself be discriminatory in substance or application and that redeployment to a suitable alternative role, instead of dismissal, has long been accepted as one of the ways that an employer can act reasonably.

The judge also noted that it would be wrong to assume that a s 15 claim is bound to fail just because the Respondent has no duties to make reasonable adjustments under s 21 EqA 2010. If this was correct, the Claimant would have to bring reasonable adjustments claims in addition to a s 15 claim, making litigation unnecessarily complex and contrary to the overriding objective at rule 2 of the ET’s rules of procedure. At para 48 of the EAT decision, the judge commented that “[i]njustice might result depending on how the case had been pleaded” if Claimants were compelled to run reasonable adjustment arguments in s 15 EqA dismissal cases. Furthermore, Boyers is a clear illustration that the conduct prohibited by s 15 EqA 2010 is separate to, and distinct from, the conduct prohibited by s 21 EqA 2010.

More generally, Boyers is a clear reminder for HR professionals that when deciding whether dismissal is proportionate for the purposes of s 15 EqA 2010, a dismissing officer should keep notes of their rationale when considering why alternatives to dismissal will not be a proportionate means to the aims pursued by the employer. As noted by Langstaff P in Chief Constable of West Midlands v Harrod [2015] ICR 1311 (at para 41), “[e]vidence that other means had been considered and rejected, for reasons which appeared good to the alleged discriminator at the time, may give confidence to a Tribunal in reaching its own decision that the measure was justified. Evidence it had not been considered might lead to a more intense scrutiny of whether a suggested alternative, involving less or even no discriminatory impact, might or could have been adopted.”

The second EAT decision can be found here.