Discrimination arising from disability and justification

It is a defence for an employer to a claim for discrimination arising from a disability, to say that the treatment was a proportionate means of achieving a legitimate aim. But what does that actually mean in practice? Consider this recent case.

The employee worked for the employer from 2005 until her dismissal on the grounds of capability in January 2018 while on sickness absence. She suffered from severe migraines and was disabled within the meaning of the Equality Act 2010.

At the end of December 2013, she had issues with a colleague, X, who she said was bullying and harassing her and complained that this increased her migraines due to stress. Requests to move her to a different desk, or to a new team or floor were refused. In February 2017 she went off sick with work related stress and was absent for nearly one year prior to dismissal. There had been a short period when there was a limited trial of a new role in a different location. The employer decided that this had not been a success and that she would need to return to her usual role and place of work. The employee claimed unfair dismissal and discrimination arising from a disability.

The employer defended the discrimination claim by saying that the dismissal was a proportionate means of achieving its legitimate aim, that aim being ‘achieving a healthy and committed workforce in order to meet reasonable business needs’. And that it needed to protect scarce public resources and reduce the strain on other employees resulting from the employee’s absence. The Tribunal accepted that the dismissal pursued two legitimate aims but held that it was not justified because it was not a proportionate means of achieving either aim. This decision was upheld by the EAT.

The employer had not demonstrated proportionality. There was no evidence on how its decision-makers thought their actions would serve the legitimate aims relied upon and no evidence in a process which culminated in dismissal, as to how decision-makers considered other, less discriminatory, alternatives to dismissal.  The assessment of proportionality is not limited to the contract of employment and the duties to be performed under that contract.

Reader beware! A tribunal must be able to weigh in the balance possible redeployment to a suitable alternative role or undergoing a work trial to assess the possibility of redeployment when assessing the proportionality of an employer’s decision to dismiss a disabled employee

If suitable alternative work is available somewhere other than the place an employee is contractually obliged to be, there may be a non-discriminatory alternative to dismissal; and an employer’s failure to consider that alternative can properly inform the tribunal’s objective analysis. Thus, the point is pursue alternatives and persevere and maintain evidence to show why it did not work!

The many forms of hybrid working

Leeds Business School has published its interactive report ‘Where is Your Office Today?’. It is part of a broader research project entitled ‘Adapting Offices for the Future of Work’. Part 2 will be published in September 2022. According to the report there are five types of hybrid working: free hybrids, timeless hybrids, nomadic hybrids, fixed hybrid and balanced hybrids and each has its own implications for work/life and office space requirements. Which are you?

Fit notes

The DWP has announced new legislation that will allow a wider range of healthcare professionals like occupational therapists, physiotherapists, and pharmacists to certify and issue ‘fit notes’. The legislation will come into force from July 2022 and applies to general practice and hospital settings across England, Scotland, and Wales. According to the DWP, the legislation will ease pressures on doctors, whilst also simplifying the process of issuing and receiving a fit note which provides evidence to an employer regarding absence and may provide relevant advice on how to support employees to remain in or return to work. The DWP has stated that this will allow patients to see the most relevant healthcare professional and have improved conversations about work and health.

For information relating directly to your business, email employment@goughs.co.uk. 

The information contained in the above article was correct at the time of publication. To ensure you are kept up to date with changes to employment law matters, click here to sign up to our dedicated employment database.

Learn more about Rebecca

All the articles above are written by our Partner & Head of Employment Rebecca Dennis. Rebecca’s professional background is unique in that she worked for more than 20 years as a barrister providing legal advice, drafting and advocacy for her clients and more recently provided specialist trouble-shooting services on employment law and employee relations at a leading international HR outsourcing company.

What Rebecca doesn’t know about Employment Law really isn’t worth knowing.

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