22 July 2022

Discrimination arising from disability

Oliver Tasker Partner & Head of Employment

Discrimination arising from disability happens when an employer treats an employee unfavourably because of ‘something’ arising from their disability and the employer cannot justify the treatment as a proportionate way of achieving a legitimate business aim.

In DWP v Boyers, the EAT examined a case where the employer had legitimate business aims but the actions they took to achieve them were found to be disproportionate.

The employee was an administrator who was disabled due to recurrent migraines. She said colleagues were bullying her which exacerbated her migraines. She asked for them to be moved, or to move herself, but requests were refused. She then broke down in tears at work after which she was moved to a different floor and a stress reduction plan put in place. Some months later, she went off sick with stress. She lodged a grievance which was rejected. The employer allowed her to do six-week trial at another office, but it was fraught with IT problems and a lack of training and feedback. The employer decided the trial hadn’t worked and ordered the employee back to her usual place of work. She remained off sick and was eventually dismissed for capability. She brought tribunal claims including one for discrimination arising from disability.

The employment tribunal said her dismissal was not proportionate. The employer appealed. The EAT said that the tribunal had focussed on the decision-making process, relevant to an unfair dismissal claim, rather than looking at the employer’s legitimate aims (saving public funds, protecting other employees) and balancing the needs of the business against the discriminatory effect of the treatment (the dismissal). The case was sent back to the tribunal. The employment tribunal again found that the dismissal was discriminatory, so the employer appealed to the EAT once again.

The EAT dismissed the appeal. The tribunal had applied the right balancing test this time. The tribunal had found that the employer had not properly evaluated the trial at a different office which could have avoided the employee’s dismissal. They decided that the dismissal was not proportionate based on the appropriate balancing exercise between the legitimate aims and the discriminatory impact on the employee. The EAT confirmed that a tribunal may consider the dismissal procedure in that balancing exercise provided the tribunal’s focus is on the outcome of the decision making - the dismissal, rather than the process itself - and decide whether that outcome is objectively justified. A potential move to another office was relevant to proportionality even if it fell outside of the employee’s contractual terms. Without properly considering the trial, and the things that went wrong there, the employer could not show that the dismissal was proportionate.

This case shows that the dismissal procedure can be relevant when considering whether an employer can justify discrimination arising from disability. If an employer dismisses an employee in such circumstances, the decision makers will need to understand (and evidence) how the decision to dismiss is a proportionate way of achieving their stated, legitimate aims. It may count against an employer if they fail to properly analyse why a trial in another role did not work. This case is also a reminder that employers must consider whether there are other, less discriminatory ways of achieving their aims - here, that was the opportunity to work from a different location.

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