In the case of O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145, the Court of Appeal (Underhill LJ) upheld an Employment Tribunal’s Judgment that a dismissal found to be disproportionate and therefore unlawful under s15 EqA was necessarily unreasonable under s98(4) ERA. Underhill LJ went on to observe that it would be undesirable for the two tests to require the application of two different standards.
Is the opposite true?
If a dismissal is found to be unfair, what is the implication for an accompanying s15 EqA claim? This is the question addressed by the EAT in the recent case of DWP v Boyers UKEAT/0282/19 (Judgment 24 June 2020).
The facts of this case are typical of many cases in Tribunals. Mrs Boyers, the Claimant, had worked for the DWP for eight years when, in 2013, she began to suffer increasing difficulties with migraines. She then had difficulties with a colleague, whom Mrs Boyers claimed was bullying her. Mrs Boyers asked her employer to move her to a different team or location. The employer declined. Mrs Boyers remained at work but became increasing stressed and eventually broke down in February 2017. She then went on sick leave. She remained absent from work (save for a few brief attempts at returning) until January 2018 when she was dismissed.
Mrs Boyers brought claims of unfair dismissal and discrimination arising from disability under s15 Equality Act 2010. The employer conceded that Mrs Boyers was disabled.
The Tribunal found that Mrs Boyers had been unfairly dismissed. The reason for dismissal was capability but the decision to dismiss was held to be unreasonable. The Tribunal found that the approach adopted by the DWP had been unfair in a number of ways: failure to seek a report from Mrs Boyers’ GP; the DWP failed to apply its own procedures; consultation shortcomings; an unreasonable conclusion drawn by dismissing officer; and a failure to consider alternatives to dismissal.
An appeal by the DWP against the unfair-dismissal finding failed at the sift stage, and was not pursued further.
However, the Boyers case is interesting because of the way in which the Tribunal then proceeded to deal with the s15 Eq A claim. Before the Tribunal, the DWP relied on a s15(1)(b) justification defence. Section 15 Eq A provides:
15 Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
What does an employer need to do to “show that the treatment is a proportionate means of achieving a legitimate aim”, the relevant treatment in the present context being dismissal?
In Boyers, the DWP accepted that Mrs Boyers had satisfied the first limb of s15, that she had been subjected to unfavourable treatment because of something arising in consequence of her disability.
However, the DWP then argued that the dismissal was objectively justified as a proportionate means of achieving a legitimate aim. They argued two legitimate aims: protecting scarce public resources, and reducing the impact on other employees of Mrs Boyers’ absence.
The Tribunal accepted that the two aims advanced by the DWP were legitimate aims in the context of the business of the respondent and its duties towards its employees and its customers. However, it is beyond this point that the EAT found the Tribunal fell into error.
An examination of the ET Judgment (set out in the EAT decision) shows the Tribunal focussing on the procedures adopted (or not adopted) by the employer in dealing with Mrs Boyers’ case.
The EAT held that the ET was wrong in basing its analysis of proportionality on the actions and thought-processes of the Respondent’s managers in the dismissal process. In considering the justification defence to the s15 claim, the EAT held that the Tribunal should instead have balanced:
- the needs of the Respondent (in the context of the legitimate aims it had found were pursued by the dismissal); and
- the discriminatory impact on the Claimant.
That analysis is a very different approach to that adopted when considering the s98 test as to reasonableness of a decision to dismiss.
The EAT noted that:
“there is no discussion anywhere in the ET’s 63-page Judgment of any evidence addressing the issues arising in connection with either of those aims. There is no reference in the Judgment to any evidence regarding the impact on public funds of the continued employment of the Claimant, nor is there any reference in the Judgment to any evidence regarding the impact on the Claimant’s colleagues of her absence from her post.”
There was disagreement between the parties in the EAT as to whether the employer had called evidence on these issues at the Tribunal. On that basis the EAT did not feel able to substitute a finding that the dismissal was a proportionate response. The EAT remitted the case to the (same) Tribunal rather than resolving the case itself.
The direction of travel of analysis in Boyers is therefore a mirror image to that in O’Brien. O’Brien was a case in which the Tribunal had proceeded from a finding of disproportionality under s15 EqA to a finding of unreasonableness under s98 ERA. Boyers confirms that the reverse is not necessarily the case. There is, therefore, the potential for a finding that a dismissal found to have been unfair, can be justified in a section 15 Equality Act claim.
Perhaps the other important reminder from the Judgment is the need for an advocate to indicate to a tribunal if it has failed to deal with an important issue in the case. Whilst it is not always a comfortable task, it is vital (and probably cost saving) to draw attention to omissions in reasoning. The need to do that is compounded by the marked lack of enthusiasm of the EAT to ‘insufficient reasons’ appeals.
When advising an employer:
- Address the unfair dismissal and s15 ‘discrimination arising from disability’ claims in isolation. Separate out your evidence and submissions on s15(1)(b) EqA distinctly from your submissions as to reasonableness under s98 ERA.
- Lay out in detail evidence in support of the legitimate aims relied upon.
- Ensure the Tribunal sets out its analysis of the evidence on s15(1)(b) in its Judgment