Employment Law Cases
Justifying discrimination arising from disability
A failure to give a disabled employee a reasonable trial in a role at a different location meant that the employer could not show that her dismissal was objectively justified.
Ms Bowyers, who was disabled, worked for the DWP at its Middlesbrough from 2005 until her dismissal in 2018. Her mental health conditions arose from what she considered bullying and harassment by a colleague and subsequent lack of support from management which led to her being off sick for almost a year. Her requests to move desk away from the problematic colleague, or to a new team or different floor of the building where she worked, were refused. Towards the end of 2017, Ms Bowyers confirmed that she was willing to work, but not at the Middlesbrough office. She had a 6-week trial at an alternative location (initially on a phased return basis) but the DWP decided that this had not been a success and ordered her to return to Middlesbrough. She felt unable to do so and remained on sick leave. She was eventually dismissed for capability reasons in January 2018. She brought various tribunal complaints, among them one for discrimination arising from disability (s. 15 of the Equality Act 2010).
Ms Boyers’ case has already had two trips to the tribunal and one to the EAT on this issue. Her claim was initially upheld by the 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 her dismissal, and not on the question of whether the unfavourable treatment (the dismissal) was a proportionate means of achieving a legitimate aim. The EAT sent the case back to the same tribunal to think again whereupon it upheld her claim again. The DWP appealed again.
The appeal was dismissed.
While the DWP had potentially legitimate aims dismissing Ms Boyers (protecting public funds/resources and reducing the strain on other staff because of Mrs Boyers’ absence), her dismissal was not a proportionate means of achieving those aims.
The EAT’s previous judgment in this case wasn’t authority for the proposition that the procedure leading to a dismissal was irrelevant to the balancing exercise, so long as the tribunal remains focused on the question of whether the outcome of the decision-making process was capable of justification. A tribunal is entitled to weigh in the balance the procedure by which dismissal was achieved. It will be more difficult for an employer to show that it acted proportionately when dismissing a disabled employee if, as happened here, it provides no evidence as to how its decision makers thought their actions would serve the legitimate aims upon which they relied.
Here the tribunal had permissibly identified several factors that meant Ms Boyers’ work trial was not reasonable. DWP did not provide weekly feedback as it had promised, it withdrew the trial without notice and there had been problems with IT equipment and training. Without a proper evaluation of whether the trial had been successful, DWP could not show that dismissal was a proportionate means of achieving a legitimate aim, especially given the serious consequences for Ms Bowyers. Had a reasonable work trial been conducted and evaluated, it was possible that Ms Bowyers could have remained employed.
The EAT also rejected another argument advanced by the DWP – that an assessment of proportionality is constrained by the terms of a claimant’s contract, e.g. their place of work. Such an approach would undermine the protection afforded to disabled people if a tribunal could not consider (for the purposes of s. 15) the prospect of redeployment to another role outside the strict terms of the contract of employment.
This is a useful reminder that an employer must genuinely explore all other possibilities before taking the decision to dismiss. Actions which appear to be ‘going through the motions’ of trialling an alternative but without feedback or a proper period of assessment are always going to be closely scrutinised by a tribunal.