The Employment Appeal Tribunal (EAT) has held in McAllister v Commissioners of Her Majesty’s Revenue and Customs (HMRC) that although the claimant was dismissed “in consequence of” his disability, the dismissal was justified as a proportionate means of achieving a legitimate aim. Namely, to ensure that staff provided a good standard of attendance.

Thompsons was instructed by the claimant’s union, the Public and Commercial Services Union, to act on his behalf.


Basic facts

After starting work for HMRC in May 2011, Mr McAllister was off sick for long periods from 2013 onwards, suffering from stress, anxiety and depression triggered by work. He was eventually dismissed in December 2018.

Having been dismissed on grounds of capability, he was entitled to a payment under the Civil Service Compensation Scheme (CSCS). This was reduced to 50 per cent because of his conduct. For instance, he had not always answered calls from work, had delayed returning certain forms, had displayed disruptive behaviour, and had turned up late for work. On appeal, his compensation was increased to 80 per cent of the full value of the payment.

He claimed discrimination arising from disability under section 15 of the Equality Act 2010 in relation to his dismissal and the reduction of his CSCS payment.


Relevant law

Section 15 states that it is discriminatory for an employer to treat someone unfavourably “in consequence of” their disability and the employer cannot show that the “treatment is a proportionate means of achieving a legitimate aim”.


Tribunal decision

The tribunal found that although Mr McAllister had been dismissed “in consequence of” his disability, it could be justified as a proportionate means of achieving a legitimate aim as it was to ensure that staff provided a good standard of attendance.

In relation to the CSCS payment, the tribunal found that the initial reduction to 50 per cent was disproportionate (and, therefore, constituted unfavourable treatment). The reduction to 80 per cent was, however, justified, as not all of the reasons for reducing it related to something arising “in consequence of” his disability.

Mr McAllister appealed on the basis that a discriminatory dismissal that was not objectively justified could not be fair. He also appealed against the tribunal’s finding that the reduction under the CSCS was justified. HMRC pursued a cross-appeal against the finding that the payment had amounted to unfavourable treatment for the purposes of section 15.


EAT decision

Dismissing Mr McAllister’s appeal, the EAT held that the tribunal had carried out the necessary critical balancing act between the discriminatory impact of the dismissal on him and the need for HMRC to have satisfactory staff attendance levels. Having found that his absence had an adverse impact in terms of staff morale and management time and on the efficient use of resources, it was entitled to find that the aim of ensuring that staff were capable of a good standard of attendance corresponded to a real need on the part of HMRC.

In terms of the CSCS reduction, the EAT held that a payment of 80 per cent of the award was justified and was a permissible finding at the liability stage, given the need to consider whether there were less discriminatory means.

As for the cross appeal, the EAT held that the award had been made to Mr McAllister because of his disability-related absences and his entitlement to be paid under the CSCS, by reason of his disability, could not be said to be unfavourable. That there had (in part) been a disability-related reduction in the calculation of the payment did not alter that, and the tribunal had been wrong to artificially separate out the method of calculation from the award itself.