Treatment, not procedure
Labour & European Law Review Weekly Issue 495 09 November 2016
It is unlawful discrimination to treat someone less favourably because of something “arising in consequence of their disability” and which cannot be justified. In Buchanan v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal (EAT) held that the employer had to be able to justify the actual treatment of Mr Buchanan, not just the underlying procedure they used for implementing the treatment.
Mr Buchanan, a trained police motorcyclist, was involved in a serious motorbike accident in 2012 while responding to an emergency call. Although he recovered from his physical injuries, he suffered posttraumatic stress disorder (PTSD) and could not return to work.
After eight months on sick leave, his employer initiated the Unsatisfactory Performance Procedure (UPP) which covered non-attendance because of incapacity, as well as failures of performance and lesser forms of absenteeism. Although the procedure that managers had to follow was set out in some detail under the Police (Performance) Regulations 2012, the regulations did not make any provision for someone who was disabled. The various notices served on Mr Buchanan under the regulations required him to return to work, despite the fact that his employers knew he could not comply.
Mr Buchanan complained to the tribunal that subjecting him to the first and second stages of the UPP amounted to discrimination arising from disability as it had exacerbated his illness and could not be objectively justified. His employer should therefore either have stopped the process altogether or pursued it in a more measured way. The Met police argued that the UPP was a proportionate means of achieving a legitimate aim.
Section 15(1) of the Equality Act states that it is discrimination for an employer to treat a person unfavourably because of something arising in consequence of their disability, and they cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The tribunal accepted that Mr Buchanan had been subjected to unfavourable treatment because of something arising from his disability.
However, a majority of tribunal members concluded that it was the procedure itself, rather than the way it had been applied to Mr Buchanan, which had to be justified. It therefore dismissed his claim on the basis that if it were to find in his favour, the Met Police would not be able to apply the first stage of the procedure to anyone with a condition such as PTSD, anxiety, stress or depression. It was, therefore, a proportionate means of achieving a legitimate aim.
The EAT allowed the appeal, holding that the focus in section 15(1)(b) is on the “treatment” of the person who has allegedly been discriminated against. The job of the tribunal was therefore to identify the act or omission which constituted unfavourable treatment and ask whether that act or omission was a proportionate means of achieving a legitimate aim.
In this case, the tribunal should therefore have considered whether each of the six steps taken by the employer (and found by the tribunal to be unfavourable treatment arising from disability) was justified. In other words, whether each of the steps (none of which were mandatory) was a proportionate means of achieving a legitimate aim.
The EAT concluded that it was impossible to assess whether any of the steps was a proportionate means of achieving a legitimate aim simply by asking whether the regulations or the employer’s policies were justified. The tribunal was required by section 15(1) to look at the treatment itself and ask whether it was proportionate, not just whether the underlying procedure was justified.
It remitted the matter to the tribunal to reconsider its conclusions.