Legitimate aim versus discriminatory effect: objective justification under the microscope

This case is a helpful reminder of what a Tribunal should be assessing in the context of objective justification in respect of a discrimination arising out from disability claim under section 15 of the Equality Act 2010 (but it likely has wider applicability).

The Facts

The Claimant, Ms Boyers was an administrative officer within the DWP. Ms Boyers suffered from a condition whereby she would suffer from severe migraines, roughly twice a month since approximately 2009. This was recognised as a disability by the DWP’s occupational health provider in late 2013. Further, between late 2013 and early 2014, a colleague, X, began bullying and harassing Ms Boyers. She asked to be moved teams, away from X, but that request was refused. Ms Boyers considered that as a consequence of this she experienced an increase in her migraines.

Repeated requests were made to move teams in 2015 and 2016, which were again refused. Eventually, Ms Boyers was moved to a different team, away from X, in January 2017. Regrettably, this did not do enough to improve her situation, and Ms Boyers eventually went off on long-term sick leave in February 2017. Between March 2017 and September 2017, a grievance was raised and investigated. A referral to occupational health took place.  

Ms Boyers returned to work for a trial period in another different office from September to October 2017. This trial was unsuccessful. Despite stating clearly that she could not return to either of the two previous work locations (due to the management), the DWP nevertheless sent Ms Boyers back to the office in which she was working previously when she went off sick. A further period of long-term sick leave followed and, as a result, a disciplinary procedure was commenced by the DWP on the basis that Ms Boyers had no reasonable prospect of achieving satisfactory attendance at work. In January 2018, she was dismissed. 

The Tribunal’s Decision

The Tribunal found that this dismissal was unfair and that it amounted to discrimination arising out of a disability. 

At Tribunal, the issues between the parties in respect of the discrimination arising from disability claim were narrowed to whether the DWP had objectively justified the admitted unfavourable treatment, i.e. whether it was a proportionate means of achieving a legitimate aim. The aims that the DWP pursued were protecting scarce public funds / resources, and reducing the strain put on other employees by Ms Boyers’ absence.

The Tribunal accepted that these were legitimate aims, but decided that dismissing  Ms Boyers was not a proportionate way of achieving either aim. In reaching this conclusion, the Tribunal focused at length on the actions and thought processes of the DWP’s managers, but did not engage with the DWP’s stated business needs as represented by the legitimate aims. 

The Appeal

Before the EAT, therDWP argued that the Tribunal had erred in law by focusing on the DWP’s decision-making process rather than on a substantive evaluation of the DWP’s business needs. The EAT reviewed the previous authorities and recalled the following important dicta about the approach to the proportionality assessment:

• The Tribunal must weigh the real needs of the undertaking against the discriminatory effect of the proposal, which requires an objective balance between the discriminatory effect of the dismissal and the reasonable needs of the employer (at [35]).
• The treatment must be an appropriate means of achieving a legitimate aim and reasonably necessary in order to do so (at [36]).
• In this context, it is an error of law for a Tribunal to focus on the process by which the outcome was achieved (at [38]).

The EAT considered that the Tribunal had failed to conduct any balancing exercise at all. Instead, it had focused entirely on the procedure by which the DWP had come to the conclusion to dismiss and therefore erred in law. 

Comment 

Given that there was also an unfair dismissal claim (which was successful), this was an easy trap to fall into. Employment lawyers / advisers have to be vigilant against such missteps. When assessing objective justification, a Tribunal would not be going far wrong to adopt the following approach: 

1. Identify the legitimate aims being pursued / list the needs of the business;
2. Analyse those needs (assessing the evidence produced by the DWP in this regard. For example, what strain was being caused on other employees);
3. List the effects against the individual;
4. Analyse those effects on the individual (that is to say, address the seriousness of the impact on Ms Boyers and what evidence has been put forward by her in this regard); and
5. Decide which factors are more persuasive and why (i.e. consider whether the effect was an appropriate means of achieving any of the aims / needs and reasonably necessary in order to achieve that aim).

This balancing act is likely to become very prevalent in claims arising following dismissals for absences related to COVID-19. Those with long standing medical conditions (which will likely qualify as a disability for the purposes of the Equality Act) may be reluctant or unable to return to work. Such absence will likely cause disruption to all forms of business. Should a dismissal occur, and a claim follow, adducing persuasive evidence will be crucial. 

For employers, they should look to adduce positive evidence of why their aim is legitimate. To take the examples from this case: 

1. The strain on other employees: A well-put-together witness statement on behalf of HR and management giving evidence as to how many individuals had to take on additional duties, and whether this impacted those individuals’ wellbeing – particularly if they went off sick with work-related stress as a consequence. This puts the individual’s situation into the context of the business as a whole. If there is any documentary evidence to support the above, this should be included. Suitable redactions to protect identities can be made. 
2. Strain on public / employer’s resources: First and foremost, what is needed is a witness statement or document explaining to the Tribunal what this employer means. For example, give an explanation as to the areas from which funds are potentially being diverted. Counsel / Representatives cannot make a positive assertion in closing submissions that funds will have been diverted from X to Y without positive evidence to support them same. Employers should of course bear in mind that considerations based on cost alone cannot justify unlawful discrimination, but cost plus some other consideration can: Woodcock v Cumbria Primary Care Trust [2012] ICR 1126.

For employees, do not simply accept assertions of legitimate aims at face value – take a forensic analysis to the aim in the context of the individual’s employment. For example, an employer will struggle to sustain a submission that an individual is a strain on resources if that individual has exhausted their statutory sick pay some time ago, and thus is not being paid. If an aim is put forward without any supporting evidence, this should be attacked accordingly as bare assertion.

For both parties, it always pays to think about what you want to say to the Tribunal at the conclusion of the trial from the very beginning. Any party coming to the Tribunal needs to back up its submissions with evidence, and careful planning at the outset will pay dividends at the conclusion of the case. 

A full copy of the judgment in DWP v Boyers UKEAT/0282/19/AT can be found here.

This article was written by Henry King, a tenant of 12KBW.