Employment Law Cases

Department for Work and Pensions v Boyers

In assessing justification where discrimination arising from disability is concerned, it’s the balance between the employer’s needs and the discriminatory impact on the employee that is relevant, not the process by which the employer settled on the unfavourable treatment.

Background

Ms Boyers, who was based in Middlesbrough and had worked for the DWP for more than 10 years, was on long-term sickness absence because of work-related stress which then became anxiety and a depressive disorder. During her sickness absence she raised a grievance (which was rejected) about the way in which her managers had handled her health issues and a bullying complaint. DWP offered her a trial relocation to another office but, after deeming it unsuccessful, instructed her to return to work at Middlesbrough. She remained off sick and was subsequently dismissed on the grounds of ill-health capability. She brought claims of, among other things, unfair dismissal and discrimination arising from disability (under. S. 15 of the Equality Act).

Both of her claims were upheld by the tribunal. As regards the disability discrimination claim, there was no dispute that Ms Boyers was disabled (initially with migraines and then with anxiety/depressive disorder), or that her dismissal was unfavourable treatment arising from her disability. The question was whether the dismissal could be objectively justified as a proportionate means of achieving the legitimate aims of protecting scarce public resources and/or reducing the strain on other employees caused by her absence, and the tribunal concluded that it was not. DWP appealed against the finding of disability discrimination, arguing that the tribunal had got it wrong as regards objective justification.

EAT decision

The appeal was allowed.

In its analysis of proportionality, the tribunal had focused predominantly, if not exclusively, on the process which had led DWP to dismiss Ms Boyers, i.e. the actions and thought processes of DWP’s managers. However, the tribunal must balance the needs of the employer against the discriminatory effect of the measure on the employee. This involves consideration of the way in which the legitimate aims being pursued represent the needs of the business, and a balancing of those needs against the discriminatory effect of the measure concerned. Having accepted DWP’s two legitimate aims, the tribunal should then have undertaken an assessment of DWP’s needs as regards them – it hadn’t.

The tribunal’s finding of unfair dismissal did not necessarily mean that an employer had acted unlawfully under s. 15 of the Equality Act 2010. There was no reference anywhere in the tribunal judgment to the evidence heard on the legitimate aims, and there was no agreed position at the appeal between the parties as to what evidence had been submitted. It was remitted back to the same tribunal to consider the correct test, on the basis of the evidence actually heard.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0282_19_2406.html

Comment

This case is a useful reminder that just because a dismissal is unfair it does not make it discriminatory because of the defence available of objective justification. However, it is also a useful reminder to ensure that clear evidence is provided in relation to that defence and this may be where DWP come unstuck when this matter goes back to the tribunal.