Department for Work and Pensions v Boyers  EAT 76
In this case, the Employment Appeal Tribunal ("EAT") held that an Employment Tribunal ("ET") was correct to find that the Claimant’s dismissal was discrimination arising from disability because it could not be justified as a proportionate means of achieving a legitimate aim.
The Claimant worked for the Respondent as an administrative officer in Middlesbrough. In December 2013, an occupational health report gave a view that she was disabled for the purposes of the Equality Act 2010 ("EqA") because she suffered from recurrent migraines. After this diagnosis, the Claimant started having issues with a colleague, who she thought was bullying and harassing her. Following several requests to move desks so she was away from the colleague, which were refused, she disclosed that she had been treated for depression, panic attacks and stress as a result of her colleague's behaviour. This situation continued until 2017, when the Claimant was absent from work with work-related stress. She said that she was willing to return to work, but not at the Respondent’s Middlesbrough office, so was sent to an alternate location for a six-week trial period. The Respondent thought that the six-week trial was not successful, so informed the Claimant she would be returning to the Middlesbrough office. She refused and remained on sick leave. The Respondent then dismissed the Claimant by reason of capability due to her low levels of attendance. The Claimant issued ET complaints, including a claim that she had been treated unfavourably because of something arising in consequence of her disability (discrimination arising from disability). Where such unfavourable treatment is established, an employer may only avoid liability if it can show that the treatment was a proportionate means of achieving a legitimate aim.
The ET held that whilst the Respondent had put forward legitimate aims of protecting public resources and/or reducing the strain on other employees caused by the Claimant’s absence, the decision to dismiss the Claimant was not a proportionate response. On appeal (reported in our July 2020 update), the EAT held that the ET had erred the way it reached its decision; it should have conducted a balancing exercise between the employer's legitimate aims, and the discriminatory effect of the dismissal, but had failed to do so. The EAT remitted the case to the ET to assess that issue again. The ET came to the same conclusion, and the Respondent appealed again.
This time, the EAT held that the ET had been correct to find that the Claimant’s dismissal was disproportionate (and therefore discriminatory) because the Respondent had failed to properly evaluate the trial period she had spent at a different office. If they had done so, this may have prevented her dismissal. The EAT held that when assessing proportionality, the ET should not be constrained by the terms of an employment contract relating to, for example, place of work. Without taking into account the Claimant's trial at another office, the Respondent could not show that her dismissal was a proportionate means to achieve its aims.
This case highlights the importance of employers carefully evaluating alternatives to dismissal when considering ending the employment of a disabled employee. Ensuring that the duty to make reasonable adjustments for disabled employees, including in relation to place of work, is complied with, may assist employers in demonstrating that a decision to dismiss is justified. Indeed, the Equality and Human Rights Commission’s Statutory Code of Practice states that an employer who fails to make a reasonable adjustment which would have prevented or minimised unfavourable treatment will find it difficult to show that the treatment was objectively justified for the purposes of a discrimination arising from disability claim.