The United Nations has designated 3 December as the International Day of Persons with Disabilities, in order to raise awareness about disability issues and mobilise support for greater equality. To mark this occasion, we comment on the recent case of Gray v University of Portsmouth, where the Employment Appeal Tribunal (EAT) has found that an employment tribunal (ET) did not properly analyse the employer’s objective justification defence to a claim for discrimination arising from disability, under section 15 of the Equality Act 2010.
Mr Gray, who is autistic and suffers from stress, worked as a service delivery analyst in the university’s information services department. He was dismissed for ill-health capability following a long period of sickness absence, after the university had followed a four-stage process in accordance with its Managing Sickness Absence Policy. His appeal against the dismissal was rejected and Mr Gray brought a claim for discrimination arising from disability, contrary to section 15 of the Equality Act.
The key issue that the ET had to determine, in respect of the section 15 claim, was whether the action taken by the university towards Mr Gray due to features of his disability could be justified; that is, whether the steps taken were a proportionate means of achieving a legitimate aim. Mr Gray complained of four actions taken by the university under the policy, including the decision to dismiss him and to reject his appeal.
The ET dismissed his claim, accepting the university’s argument that any unfavourable treatment was objectively justified as a proportionate means of achieving a legitimate aim, namely, ensuring the efficient running of the department as part of the overall provision of services to students. Mr Gray appealed the decision to the EAT.
The EAT found that the ET should have carried out a critical analysis of the employer’s justification, and demonstrated that it had done so when giving its reasons. The ET had found that keeping Mr Gray’s job open would be “significantly disruptive” to the university, but had not explained why it found this to be the case. Although the ET had referred to the position as being “obvious”, that was not demonstrated by its reasoning; in particular, the ET made no findings about Mr Gray’s role, or the impact of his absence, as to the level of need. In addition, the university had provided differing potential explanations for why his dismissal was a proportionate measure, but it was unclear which had been accepted by the ET. More generally, it was unclear whether (and if they had, how) the ET had weighed the needs of the university against the discriminatory effect of the dismissal. Its failure to do so rendered the ET’s conclusion unsafe and, accordingly, the EAT remitted Mr Gray’s claim back to the original ET to carry out the necessary evaluation.
What to take away
Although this claim focused on what the ET, and not the respondent, should have done, the case nevertheless serves as a useful reminder to employers of how an objective justification defence can be sustained. When considering objective justification, whether in the case of a section 15 claim for discrimination arising from disability, or an indirect discrimination claim, the unfavourable treatment must be both an appropriate means of achieving the legitimate aim, and a reasonably necessary means of doing so. An ET should be able to undertake a fair and detailed assessment of the employer's business needs and working practices, and evaluate objectively the proportionality of the dismissal, given any legitimate aims it accepts were being pursued by the employer. Employers should therefore be clear about the aim, or aims, they were pursuing, and demonstrate why the treatment was proportionate given the particular needs of the employer’s business. All relevant facts from which the ET can make this assessment should be provided as part of the employer’s defence.
Employers should also be able to show why another, less discriminatory measure could not have achieved the legitimate aim. In this case, for example, why could the university not have appointed a temporary replacement for Mr Gray? It will be interesting to see what findings are made regarding the university’s treatment of Mr Gray once the case returns to the ET for its detailed evaluation.