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07 August 2020

257: Objective justification defence in disability discrimination claims

Under the Equality Act 2010, a disabled employee may bring a ‘discrimination arising from disability’ claim if they have been treated unfavourably because of something connected with their disability. However, an employer will have a defence if they can objectively justify this treatment as a proportionate means of achieving a legitimate aim. In the recent case of Department for Work and Pensions (DWP) v Boyers, the EAT considered the objective justification defence in a case where the employee had been dismissed for long-term sickness absence.

Mrs Boyers suffered from migraines and panic attacks which she said were exacerbated by being bullied at work. The DWP tried to deal with these concerns by moving her into a new team. However, Mrs Boyers then went on long-term sickness absence due to work-related stress. During her absence, she raised a grievance about how her managers had dealt with her bullying concerns and her stress and illness. Apart from an unsuccessful trial period working at a different site, she did not return to work. After a year’s absence, the DWP dismissed her because she would not be able to return to work in the foreseeable future, her work trial had not been successful, and she was unwilling to return to her original place of work. Mrs Boyers did not appeal this decision and, following her dismissal, her grievance appeal was rejected. She subsequently brought claims of unfair dismissal and discrimination arising from disability.

The Employment Tribunal upheld Mrs Boyers’ unfair dismissal claim. As regards her discrimination claim, the DWP did not dispute that she was disabled, or that she had suffered unfavourable treatment in consequence of her disability. The question for the Tribunal was whether her dismissal could be objectively justified as a proportionate means of achieving a legitimate aim. It accepted that the DWP’s aims of protecting scarce public funds and reducing strain on other employees were legitimate. However, the Tribunal concluded that the dismissal was not a proportionate means of achieving those aims because of the significant number of procedural failings. For example, the DWP had failed to follow its own policies, to obtain up-to-date medical evidence and to take Mrs Boyers’ disability into account, and had taken the decision to dismiss her before the grievance was decided. Mrs Boyers therefore succeeded in her discrimination arising from disability claim.

The DWP appealed, arguing that the Tribunal was wrong to focus on its procedural failings when considering objective justification rather than carrying out a balancing exercise to weigh up its legitimate aims against the discriminatory effect of the dismissal on Mrs Boyers.

This appeal was upheld. The EAT agreed that in order to assess whether a dismissal is proportionate, a Tribunal must weigh up the reasonable needs of the employer against the discriminatory effect of the dismissal. In this case, the Tribunal had failed to conduct any balancing exercise and had instead wrongly focussed on the DWP’s procedural failings. The Tribunal had also failed to assess whether dismissal was proportionate in the context of the DWP’s two legitimate aims. The case was sent back to the Employment Tribunal to decide on the issue of proportionality.

Defending a discrimination arising from disability claim will often turn on whether an employer can objectively justify the discriminatory treatment. If action is to be taken in relation to a disabled employee, employers should therefore ensure that they balance their reasonable business needs and working practices against any discriminatory effect on the employee. An action is unlikely to be justified if less discriminatory means would have achieved the same aim. This case also highlights that even if a dismissal is found to be unfair, it can still potentially be objectively justified in a discrimination arising from disability claim.

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