Boyers worked for the DWP for over 11 years at the time that she was signed off as unfit for work with work-related stress in February 2017. She had a complex history. This included suffering from migraines which meant she was likely to satisfy the definition of disability for the purposes of the Equality Act 2010 and issues with bullying and harassment at work. The DWP sought to address her sickness absence by following a sickness absence process.
During this process, Boyers raised a grievance against her various line managers over the years and how they had managed issues of bullying, stress and illness. The grievance was investigated and rejected. Boyers appealed. Before her appeal was determined, Boyers had a six week work trial at an alternative workplace, but it was unsuccessful, so Boyers had to return to her original workplace. She remained on sick leave until she was dismissed because:
Boyers did not appeal this decision. Following her dismissal, her grievance appeal was rejected.
Boyers later brought claims for unfair dismissal and discrimination arising from disability. In respect of the discrimination claim, the Employment Tribunal (ET) accepted that the DWP was seeking to achieve legitimate aims in dismissing Boyers whilst she was absent, namely protecting scarce public funds and resources and reducing strain on other employees. However, the ET held that dismissal was not proportionate and identified a number of procedural failings leading to this conclusion, including that:
The DWP appealed to the Employment Appeal Tribunal (EAT), arguing that the ET focussed on the process followed by the DWP, rather than weighing up the legitimate aims it was pursuing against the discriminatory effect on Boyers.
The appeal was upheld. The EAT considered that the ET was required to weigh the real needs of the DWP against the discriminatory effect of the proposal and concluded that the ET had failed to do this. There was no evidence that the ET discussed or considered the proportionality of dismissal in the context of the DWP's aims. The case has therefore been remitted back to the same ET for this to be addressed.
Although the proportionality of dismissal in this case remains to be determined, the case is still a useful reminder to employers: