When considering claims of discrimination arising from disability, the Employment Appeal Tribunal (EAT) has held in Department for Work and Pensions (DWP) v Boyers that tribunals can consider the possibility of redeployment to another role as a solution outside the strict terms of the contract. Otherwise, the protection that could be afforded to disabled people would be undermined.
Ms Boyers, an administrative officer with the DWP in its Middlesbrough office, suffered from migraines two or three times per month. At the end of 2013, she complained that a colleague was bullying her, resulting in increased migraine attacks. After a few months, her colleague was moved to a different desk but remained in the same team. Ms Boyers was finally moved to a different team in January 2017.
In mid-February 2017, after a difficult call from a suicidal customer, Ms Boyers went off on sick leave. In March 2017, while still on sick leave, she submitted a grievance about the way that her complaints of bullying had been handled. Although her grievance was not upheld, she was offered a trial at a different work centre. This, however, was not deemed by the DWP to be a success and she was told in October 2017 to return to the Middlesbrough office. She went on sick leave again with anxiety and depression.
After being dismissed in January 2018 for lack of capability (due to her sickness absences), the DWP failed to consider whether Ms Boyers could return to work at a different office. In addition, during the dismissal process, they did not assess whether the trial had worked. Ms Boyers lodged various claims which included unfair dismissal and a complaint for discrimination arising from disability under section 15 of the Equality Act 2010.
Section 15(1) states that a person (A) discriminates against a disabled person (B) if:
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The tribunal agreed with Ms Boyers that the decision to dismiss her constituted discrimination arising from disability, contrary to section 15. The DWP appealed and the EAT (in its first judgment relating to this case) concluded that the tribunal had wrongly focused on the procedure leading to the dismissal decision without properly examining whether the outcome itself was justified in terms of the DWP’s 'legitimate aims' under section 15(1)(b).
The issue was remitted to the same tribunal which reached the same conclusion as before - that the dismissal was disproportionate and, therefore, discriminatory. In particular, the tribunal noted that the DWP had not provided evidence relevant to the 'legitimate aims' on which it had relied for its defence. The DWP appealed again.
Dismissing the appeal, the EAT held that having carried out the correct balancing exercise, the tribunal was entitled to decide that dismissal was disproportionate in the circumstances. In particular, it was correct to conclude that had the DWP evaluated the trial in the alternative office, it might well have avoided dismissal altogether.
It also went on to hold that the previous EAT judgment, in this case, was not authority for the proposition that the procedure leading to a dismissal decision is irrelevant to the balancing exercise, as long as the tribunal focuses on the question of whether the outcome of the decision-making process can be justified.
The EAT rejected the argument that the assessment of proportionality required by section 15(1)(b) was constrained by the terms of a claimant’s contract of employment, including issues such as their place of work. If tribunals could not consider the possibility of redeployment to another role outside the strict terms of the contract, the protection afforded to disabled people would be undermined not least because, as in this case, the tribunal would not have been able to decide that there was a less discriminatory alternative to dismissal.
The EAT also rejected the employer’s argument that the dismissal could not be disproportionate if there was no duty to make reasonable adjustments.
An employer can dismiss an employee for something arising as a consequence of the employee’s disability if the employer can show that they had a legitimate aim and that they had sought to achieve that aim by proportionate means.
An employer must demonstrate that their decision-making process considered the legitimate aim and whether there were any alternative options that were less discriminatory than dismissal. Where there is an impact as serious as dismissal, the onus is on the employer to clearly and convincingly justify the reasons they chose to dismiss.
Although reasonable adjustments and discrimination arising from disability claims are often related, it cannot always be the case that if one succeeds, the other succeeds, or if one fails, so does the other.