In the recent case of Department for Work and Pensions v Boyers the Employment Appeal Tribunal (EAT) has given useful guidance on dismissals following long term sickness absence due to a disability.
Under section 15 of the Equality Act (EqA 2010), discrimination arising from disability occurs where an employee is treated unfavourably because of something arising in consequences of their disability. A dismissal on the grounds of ill health will be unfavourable, however an employer will have a defence where they can show that the treatment is a proportionate means of achieving a legitimate aim (known as ‘objective justification’). The burden of proof is on the employer to establish the objective justification defence.
In this case, Mrs Boyers worked for the DWP in its Middlesborough office. She had been employed by the DWP for 12.5 years before her dismissal. In December 2013 it was established that she was probably disabled for the purposes of the EqA 2010, by reason of recurrent migraines.
At the end of 2013, Mrs Boyers had issues with a colleague, whom she alleged was bullying and harassing her, and which she believed led to a stress-induced increase in the frequency of her migraines. Mrs Boyers made repeated requests to move desk, or offices or teams, all of which were refused. In February 2017, Mrs Boyers was absent from work with work related stress. During this time, she submitted a grievance about the way her managers had dealt with her health problems, stress and bullying complaint. The grievance was investigated and rejected.
Towards the end of 2017, Mrs Bowers stated that she was willing to return to work at a different location. Mrs Boyers had a six-week trial at an alternative location, which the DWP decided had not been successful and Mrs Boyers was instructed to return to her original office. During the trial period there had been problems with IT equipment; there were no weekly feedback sessions as had been promised; and only limited training was offered. In addition, the DWP kept no contemporaneous paperwork relating to the trial.
Mrs Boyers felt unable to make a return to the Middlesbrough office and remained on sick leave. She was eventually dismissed for capability, due to her unacceptable levels of attendance. She brought various complaints before an employment tribunal, including discrimination arising from disability under section 15 of the EqA 2010.
In its defence, the DWP identified two legitimate aims to help objectively justify the dismissal: (1) the protection of sparse public funds and resources, and (2) reducing the impact of Mrs Boyer’s absence on other employees.
The Tribunal found that Mrs Boyer’s had been discriminated against and the DWP was criticised for, amongst other things, failing to obtain up to date medical advice and failing to consider alternatives to dismissal and failing to apply aspects of its own attendance management policy before moving to dismissal.
The DWP appealed on the ground that the tribunal had focused too heavily on the failures of the process leading to dismissal (the exercise when determining whether a dismissal is unfair), rather than the appropriate test of balancing the needs of the employer (its legitimate aims) with the discriminatory impact upon the Claimant.
The EAT allowed the appeal and found that the Tribunal had wrongly focused on the DWP’s decision making process and remitted the case to the Tribunal to assess whether the dismissal was a proportionate means of achieving DWP’s legitimate aims.
On remittal, the Tribunal reached the same conclusion. The Tribunal found that DWP had not provided any positive evidence of the legitimate aims relied upon and there was not any evidence that the decision maker had considered those matters when deciding to dismiss Mrs Boyers.
The DWP appealed a second time, which the EAT dismissed. The EAT found that the Tribunal had properly carried out a balancing exercise. A Tribunal is entitled to weigh in the balance, the procedure by which dismissal is achieved, provided it remains focused on the question of whether the outcome of the decision-making process is capable of objective justification, rather than the process itself.
DWP had failed to set out the evidence regarding the impact on public funds and resources which the continued employment of Mrs Bowers would have had, or the level of strain on other employees which her continued absence was causing. It will be more difficult for an employer to show that it acted proportionately if it has provided no evidence on how, as part of the decision-making process leading to dismissal, its decision-makers considered other less discriminatory alternatives.
Essentially, DWP had “jumped the gun” in dismissing Mrs Boyers without having undertaken a full assessment of the trial period or considering other alternatives.
This is a useful reminder to employers not to act prematurely in dismissing a disabled employee when it has decided that ‘enough is enough’. When addressing an employee’s absence, an employer should carefully consider what legitimate aim(s) it is seeking to achieve, which should be aligned in the mind of the decision maker. An employer should be ready and able to articulate what legitimate aim(s) it is seeking to achieve and be able to demonstrate that it has considered whether that/those aim(s) could be achieved by something less extreme than dismissal.
Evidence of that process will be needed in order to defend the matter if a claim is pursued. Accordingly, it would be prudent for an employer to keep a record of how its actions achieve its legitimate aim(s) relied upon and the alternatives to dismissal it has considered and explored.