Justification in discrimination cases

09 November 2016

Disability discrimination happens when a person is treated unfavourably because of something arising in consequence of their disability, and that unfavourable treatment can’t be objectively justified.

Buchanan v The Commissioner of Police of the Metropolis

Disability discrimination happens when a person is treated unfavourably because of something arising in consequence of their disability, and that unfavourable treatment can’t be objectively justified.

The Employment Appeal Tribunal (EAT) in this case was asked to consider, in the context of long-term sickness absence, what it is that must be justified. Is it the employer’s procedure, or the way in which they applied that procedure to a particular employee?

Mr Buchanan was a police officer who was disabled after a serious motorbike accident. He remained off work with post-traumatic stress disorder, and was being managed under his employer’s Unsatisfactory Performance Procedure (UPP), which had three stages. Mr Buchanan had reached the second of these stages. He went on to claim that his employer had discriminated against him by applying the UPP and issuing improvement notices. He said that the notices required him to work when he was clearly incapable of doing so. He also said that his employer ought not to have persisted with the UPP process, or it should have been more measured in how it went about it. The complaint was about the application of the UPP rather than the UPP itself.

The Employment Tribunal held that there had been unfavourable treatment. It also decided that the employer needed to justify the procedure itself rather than the way in which it was applied to Mr Buchanan.

The EAT disagreed with the Tribunal. It was the treatment of the employee that needed to be justified, the EAT said. In this case, the treatment was the application of the UPP to Mr Buchanan. The UPP didn’t say that the employer should place the demands it did on an employee in Mr Buchanan’s position. That being the case, the employer needed to be able to justify its action in doing so.

So, in this sort of situation, remember it may not be enough to point to a decent policy. The way in which you applied that policy will be under scrutiny when it comes to justification. It won’t always be an easy distinction to follow in practice, and it’s worth taking advice if you think you might be at risk of a claim.


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