The claimant had worked for the respondent for 12 years when she was dismissed in January 2018.  The claimant was a disabled person suffering from chronic migraines, anxiety and depression. In the 12 years of service, the claimant had only been off work for a six week period when she undertook a work trial at another location and for the last year of her work on sick leave because of alleged bullying and harassment by a colleague.

At first instance, the Tribunal found that the dismissal was unfair and discriminatory.   It was not regarded as a proportionate means of achieving a legitimate aim.  The legitimate aim relied upon by the respondent was to achieve a healthy and committed workforce to meet reasonable business needs. This was then amended to include protecting public funds and reducing the strain on other employees by having others on a long term absence.  The Tribunal stated there were other steps that could have been taken to assist the claimant back to work rather than making a decision to dismiss.

The respondent appealed the decision to the EAT. The basis of the appeal was the assertion that the Tribunal had wrongly examined the proportionality requirement.  The respondent stated that there was no balancing of the respondent’s needs against the discriminatory impact on the claimant. As a result of that appeal, the case was remitted back to the same Tribunal for a fresh determination on proportionality.   Again, the Tribunal found the respondent had failed to show the dismissal decision was proportionate stating that no evidence had been shown of the legitimate aims relied upon.

The respondent appealed to the EAT once again. The EAT stated when it came to justification it was the outcome and not the process that had to be justified.  Therefore, the respondent would have to show the dismissal was justified. The procedure is not irrelevant though and will have to be taken into account when conducting a balancing exercise. For example, it would be difficult to demonstrate an action was proportionate if there was no evidence as to how the decision makers decided their decision was in line with a legitimate aim. As a result, proportionality would have to go wider and should examine situations that may require a change of contract of employment such as change of place of work or the duties to be performed. It was held that the Tribunal had engaged upon the balancing exercise when it came to the legitimate aim of the respondent against the discriminatory effect of the claimant. As a result, the appeal was rejected on this ground.

The respondent also appealed citing the lack of any reasonable adjustments.  The assertion being that disability discrimination could only be successful where there were reasonable adjustments possible and the employer failed to implement them.  The EAT held that this was not the case. It was held that the failure to follow the duty was highly material to a finding that the action was disproportionate but the converse was not true in that the lack of reasonable adjustments did not stop a finding of disability discrimination.

Practical Lessons

This case demonstrates the interlink between absences, disability and dismissal. The Tribunal and EAT had to examine whether the respondent had a legitimate aim and whether it was proportionate. To that end, there are three learning points arising from the case. The first is that the analysis regarding proportionality arises in relation to the decision and not to the process followed. The second is that in disability discrimination cases the fact that no reasonable adjustments may be possible in a case does not mean there can be no disability discrimination. The third is the EATs statement that in proportionality it should look at changes that could be made the contract and that it should not be regarded as being set in stone and unable to be touched.
https://www.gov.uk/employment-appeal-tribunal-decisions/department-for-work-and-pensions-v-mrs-susan-boyers-2022-eat-76