When an employer is seeking to justify a dismissal under s.15 EqA (discrimination arising from disability), does it matter that the procedure leading up to the dismissal is unsatisfactory? The EAT here held that it is the outcome, the dismissal, that must be justified rather than the process or procedure leading up to it. However this does not mean the process/procedure is irrelevant. In the present case, for example, a work trial of the claimant working at an alternative location had not been carried out reasonably. The EAT said that without properly evaluating this trial, to decide whether it was genuinely successful, the employer could not show that the dismissal was reasonably necessary to achieve its aims, when balanced against the impact of the dismissal on the claimant. Her s.15 claim succeeded.
2022, Employment Appeal Tribunal (EAT). Full decisions: EAT, 2022 (gov.uk) and EAT, 2020 (bailii.org).
Facts
The claimant felt that a colleague X had been bullying and harassing her. She was disabled with migraines and depression. After some time she was moved to a different team and different floor from X. However after the claimant complained about how she was treated by a manager assisting her on call with a customer who said they were suicidal, she went off sick with work-related stress.
She did not return to work except for a six-week work trial at a different location. The employer considered the trial unsuccessful but did not say why. She did not want to return to her previous workplaces where she believed colleagues and managers had caused her mental health problems. However was willing to work at the trial location. The employer dismissed her due to her ongoing absence.
Held: The EAT upheld a second employment tribunal decision that the dismissal was not justified under s.15 EqA. Her s.15 claim was successful.
First employment tribunal decision (2019)
This upheld her claims for unfair dismissal and discrimination arising from disability (s.15 EqA). The tribunal’s decision was largely based on failures of the employer’s decision-making process, for example:
– the employer had no up-to-date medical evidence about her,
– her absence was managed by a line manager against whom she had brought a grievance
– several aspects of the work trial were not carried out reasonably, the trial was withdrawn with no explanation or discussion, and managers made no attempt to consider whether other trials were potentially available.
First EAT decision (2020)
The employer’s appeal on unfair dismissal was not allowed to proceed. However the EAT overturned the tribunal’s decision on s.15 EqA. The tribunal had held the dismissal was not justified under s.15, ie the employer had not shown the dismissal to be a proportionate means of achieving a legitimate aim. The EAT held the tribunal had taken the wrong approach to this question and should reconsider the issue.
The employer’s lawyer pointed to West Midlands Police v Harrod (bailii.org) on indirect age discrimination where the EAT had said: “What has to be shown to be justified is the outcome, not the process by which it is achieved.” What mattered was the practical outcome, not the quality of the decision-making process which led to it.
The EAT accepted this argument. It held that the employment tribunal fell into error by basing its analysis of proportionality on the actions and thought-processes of the employer’s managers, rather than on a balancing of the needs of the employer, in the context of the legitimate aims pursued by the dismissal, and the discriminatory impact on the claimant. As regards the employer’s needs, the tribunal had not set out the evidence on the impact on public funds and the strain on other employees caused by her absence. Among other things, the tribunal should consider whether the dismissal was reasonably necessary to achieve the employer’s aim.
Second employment tribunal decision (2020)
The employment tribunal reconsidered the case in the light of the first EAT decision. It still decided the dismissal was unjustified, so there was a breach of s.15.
The tribunal said the employer had led no evidence relevant to the legitimate aims on which it relied (protecting scarce public funds/resources; and reducing strain on other employees resulting from the absence). The tribunal considered the alleged aims anyway, and also the impact of the dismissal on the claimant which was “very severe”. Rather than dismissal, said the tribunal, another avenue open to the employer would have been properly assessing the work trial and considering whether it had failed at all – or, if it had, whether it should reasonably have been re-implemented.
Second EAT decision (2022)
The EAT upheld the second employment tribunal decision. The tribunal was entitled to decide the dismissal was justified.
Relevance of process/procedure
The employer argued the first EAT decision meant that the procedure by which an employer reaches a decision to dismiss is irrelevant to the balancing exercise under s.15 EqA.
The EAT rejected this argument. It is the outcome of the decision-making process (here dismissal) that must be justified, not the process itself. However that does not mean that an employer’s procedure is irrelevant [40]. The EAT in West Midlands Police v Harrod (above) cited in the first EAT decision had said:
“This is not to say that a failure by a decision maker to consider discrimination at all, or to think about ways by which a legitimate aim might be achieved other than the discriminatory one adopted, is entirely without impact. Evidence that other means had been considered and rejected, for reasons which appeared good to the alleged discriminator at the time, may give confidence to a Tribunal in reaching its own decision that the measure was justified. Evidence it had not been considered might lead to a more intense scrutiny of whether a suggested alternative, involving less or even no discriminatory impact, might be or could have been adopted.”
The EAT said that the employment tribunal must undertake the balancing exercise required by s.15 EqA by focusing on the outcome – the dismissal itself – but it remains open to the tribunal to weigh in the balance the procedure by which that outcome was achieved [41]:
- It would be more difficult for an employer to show it acted proportionately when dismissing a disabled employee if, as in this case, the employer has led no evidence on how its decision-makers thought their actions would serve the legitimate aims relied upon.
- It would also be more difficult for an employer to show it acted proportionately when dismissing a disabled employee if the employer has led no evidence on how, as part of the process culminating in dismissal, its decision-makers considered other, less discriminatory, alternatives to dismissal. This case was a good example of how that failure in process could properly form part of the balancing exercise, because several aspects of the work trial had not been carried out reasonably: the promised weekly feedback sessions did not materialise; there were problems with IT equipment, limited training, and no contemporaneous paperwork; and the trial was withdrawn without notice. Without properly evaluating the work trial, to decide whether it was genuinely successful or not, the employer could not show that dismissal was appropriate and reasonably necessary to achieving its aims, when balanced against the impact on the claimant.
Despite being a procedural failing, the work trial was not “out of bounds” for the tribunal’s assessment of proportionality. It had a direct bearing on whether the outcome – dismissal – was justified under s.15. [42]
Contractual place of work
The trial was for work at a location different from where she was contractually obliged to work. The employer argued the tribunal should not have put weight on the possibility of her returning to work somewhere other than her contractual place of work.
The EAT rejected this argument. Protection under s.15 EqA would be seriously undermined if a tribunal’s assessment of proportionality could not extend beyond the terms of the contract of employment on matters such as place of work and the duties to be performed. Redeployment to a suitable alternative role had long been accepted in unfair dismissal claims as one of the ways an employer can act reasonably, in circumstances of redundancy or of incapability for health reasons. The EAT saw no reason why redeployment to another role, or undergoing a work trial to assess the possibility of redeployment, should not also be a relevant factor for a tribunal to weigh in the balance when assessing justification under s.15 EqA. [43-45].
S.15 not dependent on failure to make reasonable adjustments
The EAT also rejected arguments by the employer that the tribunal had effectively imposed on the employer a duty to redeploy, akin to the duty to make a reasonable adjustment, and that where no reasonable adjustment can be made then a complaint brought by reference to s.15 EqA is bound to fail. On the latter argument, the EAT pointed out that the Court of Appeal in Griffiths v Secretary of State for Work and Pensions had made clear that the conduct prohibited by s.15 EqA is separate to, and distinct from, the conduct prohibited by section 21 EqA (reasonable adjustments). [46-49]
My comments
Comments: Outcome v process
Unlike the first EAT decision, the second recognises explicitly that failures in process/procedure can be relevant to the justification defence under s.15 EqA. For more discussion of this, see Objective justification defence>My comment on the Boyers decision.
Comments: Relevance of reasonable adjustments
See Objective justification defence>Relevance of reasonable adjustments.
Comments: Akerman-Livingston case
The 2022 decision in Boyers (at para 23) is one of only a very small number of EAT decisions which cite the four-stage structured approach in Akerman-Livingstone, a 2015 Supreme Court decision on justification under s.15 EqA. Akerman-Livingstone applies to employment cases, but is rarely cited in them presumably because it was a housing case.
