Courts and tribunals are increasingly clamping down on employers who fail to meet their duties and obligations under the Equality Act 2010 (EA10), particularly when it comes to discrimination arising from a disability. Just last month, the Employment Appeal Tribunal (EAT) decided that an employment tribunal (ET) had not erred in finding that an employee’s dismissal constituted discrimination arising from a disability. The EAT held the dismissal could not be objectively justified as a proportionate means of achieving a legitimate aim. In this blog, we explore this useful reminder that employers should consider alternative approaches before deciding to dismiss disabled employees.

The facts

The Claimant (C) was disabled for the purposes of EA10 due to recurring migraines. Around the same time that her disability was first identified, C began to raise allegations of bullying and harassment by a colleague (the Colleague). C believed that the stress this caused led to an increased frequency of her migraines and she therefore asked her employer (R) if her desk could be moved away from the Colleague but this was refused. The Colleague did eventually move to another desk albeit for an unrelated reason, but C and the Colleague continued to work in the same team. It later came to light that C was suffering from panic attacks and was being treated for depression as a result of the Colleague’s behaviour.

The issues between C and the Colleague continued and C was absent from work due to work-related stress from February 2017. C submitted a grievance about the way in which R had handled the situation, by which time the Colleague’s behaviour had actually improved. The grievance was investigated but not upheld.

Upon returning to work in the latter part of 2017, C was placed in a different work location, at her request. After a six-week trial in this new location, R instructed C to return to her original workplace, deeming the trial unsuccessful. C was given almost no warning (being informed on the Friday afternoon that she had to return to her original place of work on the following Monday) and there was no contemporaneous paperwork documenting the trial or the reason for its failure.

Feeling unable to return to her original workplace, C remained on sick leave. In January 2018, she was dismissed by reason of capability, due to her unacceptable level of attendance.

The first ET decision

C brought various complaints. The ET held that her dismissal did constitute an act of discrimination arising from a disability. The dismissal was not a proportionate means of achieving the two legitimate aims upon which R relied, namely:

  • protecting scarce funds/resources; and/or
  • reducing the strain on C’s colleagues caused by her absence.

R appealed this decision on various grounds.

The first EAT decision

The EAT held that the focus of the ET had been incorrectly balanced – wrongly focusing on R’s decision-making process leading to dismissal without examining whether the outcome of the dismissal was justified. The judgment did not properly address the issue of whether dismissal was a proportionate means of achieving the accepted legitimate aims. The EAT explained that “the ET did not make a finding that the Respondent’s evidence on the issues raised by either of the legitimate aims was insufficient to support a conclusion in its favour on proportionality. Had it made such a finding … then the Appeal might well have proceeded very differently.”

The case was remitted back to the same ET to assess whether the dismissal was, in fact, proportionate to R’s legitimate aims.

The second ET decision

Upon remittal, the ET reached the same decision – that C’s dismissal was disproportionate and discriminatory. In doing so, it once again placed weight on the fact that other alternative arrangements, specifically the work trial and the reasons for its failure, had not been explored prior to dismissal. This time, the ET linked this to the legitimate aims, stating, for example, that the ongoing cost to public funds of continuing C’s employment for a further period to double check the outcome of the work trial and consequent alternative employment was small.

R appealed the decision once more, claiming that the decision on proportionality was perverse and that the ET had, in effect, imposed a duty on R to investigate deploying C.

The second EAT decision

The EAT held that the ET’s new judgment was not perverse, nor had there been any error of law. In its judgment, the EAT made the following useful comments:

  • the first EAT decision was not authority that the procedure leading to a dismissal is irrelevant to the balancing exercise which must be carried out in determining proportionality;
  • when a tribunal is considering proportionality, it is not constrained by the terms of an employee’s employment contract (in this case R sought to argue that only C’s ability to return to the specific place of work stated in her employment contract should be considered). This would undermine the protection of disabled people afforded by EA10 by, for example, leaving a tribunal unable to weigh in the balance the prospect of redeployment to another role; and
  • a dismissal could still be disproportionate under section 15(1)(b) EA10 even where there is no corresponding duty to make reasonable adjustments.

Takeaway for employers

Whilst this case certainly does not (as R sought to claim) impose an obligation on employers to always consider redeployment, relocation, alternative roles etc., it is an important reminder to exercise caution when considering dismissing a disabled employee whose absence can no longer be accommodated. Despite trialling a relocation, R failed to properly evaluate the success of that trial before deciding to dismiss C. This failure was a deciding factor in the EAT’s decision to uphold the ET’s judgment.