In this case, the EAT held that employers justifying disability discrimination have to justify each act of unfavourable treatment rather than just the underlying procedure.
Mr Buchanan was a serving police officer. He suffered a motor bike accident while responding to an emergency call, and developed serious post-traumatic stress disorder. When he had been absent from work for eight months, his employer began to take steps under the Unsatisfactory Performance Procedure. This is a very prescriptive (and, as the tribunal pointed out, unfortunately named, given its purpose of addressing the absence of someone with a disability) absence management procedure. As prescribed at the first two stages of the procedure, Mr Buchanan was issued with written improvement notices, which stipulated dates by which he should return to work. The employer was fully aware from medical advice that he would be unable to comply with these dates. Mr Buchanan, in his vulnerable state, was distressed and made anxious by this process. The EAT commented on the employer's "astonishing lack of attention to the issue of disability".
Mr Buchanan complained to an employment tribunal about his employer's decisions to instigate and continue with the absence management process, saying that this was discrimination arising from a disability, and that his employer's actions could not be objectively justified.
The employment tribunal held that the matters of which Mr Buchanan complained constituted unfavourable treatment, and that the various items of treatment were because of something arising from his disability. However, it agreed with the employer that the test for justification involved scrutinising the absence management procedures as a whole, rather than the individual application to Mr Buchanan of the procedure. It rejected Mr Buchanan's case that his "treatment" must be justified, rather than procedures themselves. It held that the absence management procedure was justified and that, therefore, Mr Buchanan's case failed.
Mr Buchanan successfully appealed. The EAT held that the objective justification test should be applied to each of the instances of unfavourable treatment. The question to be answered is "is the treatment a proportionate means of achieving a legitimate aim?". The case was remitted to the tribunal.
What does this mean for employers?
This is a sensible judgment. If the EAT had followed the tribunal's decision, the protection given to disabled employees by disability discrimination legislation would have been undermined. When implementing absence management procedures, employers must be alive to their duties to make reasonable adjustments and ensure that they have evidence to show that the manner of implementing the procedure is a proportionate means of managing absence.