The EAT has held in Gray v University of Portsmouth that tribunals must carry out a “critical evaluation” of an employer’s objective justification defence when considering whether the dismissal of a disabled employee was a proportionate means of achieving a legitimate aim.
Mr Gray worked as a service delivery analyst in the university’s information service department. After being diagnosed with high-functioning autism in 2014, his relationship with his manager started to break down and he went off on stress-related sick leave in January 2015.
Over a two-year period, the university set up a series of meetings with Mr Gray under its four-stage sick leave policy, but these were frequently delayed or rescheduled to accommodate Mr Gray or his chosen representative. During that period, the university sought advice from occupational health which recommended engaging a support worker for him.
However, it proved difficult to find a support worker and the university wrote to Mr Gray on 29 September 2016 to say that it intended to progress to the last stage of the sick leave policy. Following further delays, a meeting was arranged for 1 November which Mr Gray did not attend. At this point, the university decided to terminate his employment on grounds of ill health capability. His subsequent appeal was rejected.
Mr Gray complained that he had been subjected to unfavourable treatment under section 15 of the Equality Act 2010.
Section 15 states that it is discrimination if a person (A) treats someone else (B) unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The tribunal held that Mr Gray had been dismissed for reasons that related to his disability (his continued absence from work) and that this was unfavourable treatment.
However, as it was “obvious” that continuing to hold Mr Gray’s job open was significantly disruptive for the university, the tribunal agreed that dismissing Mr Gray was a proportionate means of achieving a legitimate aim - to ensure the efficient running of the IT department as part of the overall provision of services to students. Mr Gray appealed.
Upholding the appeal, the EAT criticised the tribunal for failing to explain how and why it had reached the conclusion that holding Mr Gray’s job open would “obviously” be disruptive for the university.
In particular, it had not made any findings about the differing explanations given by the university. For instance, although it had highlighted a need for “timescales to be set and for a decision to be made”, the explanations given by the university had changed over time. Initially, it expressed concerns about how it could cover Mr Gray’s job in his absence, but this then morphed into a concern that colleagues might find it disruptive if he did return.
When deciding whether the university had shown that the dismissal was a proportionate means of achieving a legitimate aim, the tribunal should therefore have carried out a critical evaluation of the evidence. Having carefully scrutinised whether the tribunal had understood and applied the evidence and fairly assessed the employer’s attempts at justification, the EAT concluded that it could not be satisfied that the necessary critical evaluation had been undertaken in this case.
It therefore remitted the case back to the same tribunal for reconsideration.