Tribunal Was Right to Take Dismissal Procedure into Account in Discrimination Claim
In a recent case, the Employment Appeal Tribunal (EAT) has issued useful guidance on the relevance of a dismissal procedure to a 'discrimination arising from disability' claim.
What Is a Claim for Discrimination Arising from Disability?
Under section 15 Equality Act 2010, a person discriminates against a disabled person if they:
-
- treat them unfavourably because of something arising in consequence of their disability
- they cannot show the treatment is a proportionate means of achieving a legitimate aim
A claim for discrimination arising from disability is different from other types of discrimination claims, including direct discrimination, indirect discrimination and the failure to make reasonable adjustments.
What Were the Facts of the Claim?
In the case of Department for Work and Pensions v Boyers, Mrs Boyers worked for DWP from September 2005 until her dismissal in January 2018. She was disabled in law as she suffered from chronic migraines and a mixed anxiety and depressive disorder. Mrs Boyers was on sick leave for work-related stress for nearly a year prior to her dismissal, save for a period of a few weeks when she underwent a trial for a different role in location.
Mrs Boyers had repeatedly complained of her treatment by a colleague from 2013 onwards. She said she was being bullied and harassed, and thought this might be exacerbating her health condition. She asked to be moved away from the colleague, and/or to be moved to a different team. Her requests were declined and a grievance she brought was unsuccessful.
From February 2017, Mrs Boyers was signed off work. As part of discussions with DWP during her absence, she said she would return to work in a different office to the colleague and managers she perceived to have caused her mental health problems. A trial was arranged, but this was deemed unsuccessful and Mrs Boyers was told to return to her original workplace. She remained on sick leave until her dismissal. Following her dismissal, she brought various claims, including a claim for discrimination arising from disability.
What Was the Outcome of the Claim?
Mrs Boyers' claim took a circuitous route around the tribunal system. The claim was initially upheld by the Employment Tribunal, following which the DWP appealed to the EAT. The EAT upheld the appeal on the basis the Tribunal had focused too much on the process leading up to Mrs Boyers' dismissal, and not on the question of whether the unfavourable treatment (the dismissal) was a proportionate means of achieving a legitimate aim. The EAT remitted the case back to the same Tribunal for reconsideration.
The second time around, the Employment Tribunal again upheld the claim. The DWP submitted a further appeal to the EAT, and this time the appeal was unsuccessful. The fact that the Tribunal was previously criticised for focusing solely on the process, did not mean the process was completely irrelevant to the claim. The Tribunal was correct to carry out a balancing exercise by focusing on the dismissal, and it was entitled to take the procedure into account as part of that exercise. The Tribunal was entitled to find that several aspects of Mrs Boyers' work trial had not been carried out reasonably, and that the trial as a whole was not properly evaluated. DWP therefore could not show that dismissal was appropriate and reasonably necessary to achieve its aims when balanced against the impact on Mrs Boyers.
What Can Employers Learn from This Decision?
In a claim of discrimination arising from disability, a procedure may be taken into account by the Tribunal as part of its assessment of the proportionality of the employer's response. The fact the claim itself does not focus on the procedure, does not mean the procedure is irrelevant. Indeed, it may be difficult for employers to evidence that any action they took was a proportionate means of achieving a legitimate aim, if they cannot show they followed a meaningful procedure before taking the action complained of.