Tribunal ‘failed to consider employer’s needs’ in discrimination case

The Employment Tribunal failed to properly consider the needs of the employer when dealing with a disability discrimination claim.

That was the decision of the Employment Appeal Tribunal in a case involving the Department of Work & Pensions and one of its employees, Susan Boyers.

Ms Boyers suffered from migraines, stress and panic attacks. She went on sick leave in February 2017.

In March 2017 she submitted a grievance in relation to how her managers had handled her illness and her allegations that she had been bullied by a colleague. The employer decided not to uphold the grievance, concluding that none of the managers which she had complained about had failed in their duty towards her.

In January 2018, with Boyers still on sickness absence, the employer decided to dismiss her.

The tribunal upheld her claim for unfair dismissal. It considered that whilst she had been dismissed for a potentially fair reason, namely capability, the employer’s decision to dismiss was not reasonable because it had not taken steps to inform itself of the true medical position first.

The tribunal also upheld her claim that her dismissal constituted disability discrimination.

The employer appealed against the finding on discrimination, on the basis that the dismissal had been a proportionate means of achieving a legitimate aim.

The Employment Appeal Tribunal found in favour of the employer. It held that when considering whether a discriminatory measure was justified, a tribunal had to balance the needs of the employer against the discriminatory effect of the measure on the employee.

The tribunal had failed to undertake any assessment of the needs of the employer’s business in that context. It had not set out the evidence regarding the impact on public funds and resources which the continued employment of Boyers would have had.

Nor did it set out the evidence about the level of strain on other employees which her continued absence was causing. Such an assessment was necessary for the tribunal to evaluate the proportionality of the employer’s action in relation to the legitimate aims being pursued.

The tribunal’s finding that the dismissal was an act of discrimination was set aside. The claim would be remitted to the same tribunal to re-determine the issue of whether the dismissal had been a proportionate means of achieving the employer’s legitimate aims.

Please contact Sorcha Monaghan if you would like more information about the issue raised in this article or any aspect of employment law.