376: Disability discrimination in trial periods – objectively justifiable?

Discrimination arising from disability occurs where an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability, and that treatment cannot be objectively justified as a proportionate means of achieving a legitimate aim (section 15, Equality Act 2010). In Department for Work and Pensions (DWP) v Boyers, the Employment Appeal Tribunal (EAT) held that failing to give a disabled employee a reasonable trial period in a new role meant that her dismissal could not be objectively justified.

Mrs Boyers worked for the DWP as an administrative officer from 2005 until her dismissal in 2018. In December 2013, an occupational health report noted that she was disabled for the purposes of the Equality Act 2010 due to recurrent migraines. Mrs Boyers believed her migraines were becoming worse as a result of bullying and harassment from a colleague. However, her requests to move desks or teams away from this colleague were refused. Mrs Boyers also disclosed that she had been treated for depression, stress and panic attacks as a result of her colleague’s alleged behaviour. A subsequent grievance about the handling of her health problems, stress and bullying complaint was rejected. After a prolonged period of sickness absence, Mrs Boyers returned to work at an alternative location on a six week trial, but the DWP unilaterally decided that this trial had not been successful. Mrs Boyers did not feel able to return to her old office and remained on sick leave until her dismissal on capability grounds. She then brought various claims including a claim of discrimination arising from disability.

Prior to this latest Employment Appeal Tribunal (EAT) appeal, Mrs Boyers’ case was heard twice in the Employment Tribunal (Tribunal) and once before in the EAT. The Tribunal initially upheld Mrs Boyers’ claim, but the EAT sent the case back to the same Tribunal after ruling that it had focused too much on the process leading up to her dismissal, rather than on whether her dismissal was a proportionate means of achieving the DWP’s legitimate aims. The Tribunal went on to uphold her claim again thereafter, and the DWP appealed again, this time unsuccessfully.

The EAT’s reasoning was that it was satisfied that the Tribunal had properly balanced the needs of the DWP with the discriminatory effect of the dismissal, confirming that the procedure leading to Mrs Boyers’ dismissal was relevant to this as long as the main focus was on whether the final outcome of the decision-making process could be objectively justified. The EAT agreed with the Tribunal that although the DWP’s aims of protecting public funds and reducing the strain on staff covering Mrs Boyers’ absences were legitimate, dismissal was not a proportionate means of achieving those aims. Crucially, the DWP had failed to properly evaluate Mrs Boyers’ work trial period, for example, it had not provided weekly feedback as promised; there had been problems with IT equipment and training; and the trial itself was withdrawn at short notice. Had the trial been conducted and evaluated reasonably, Mrs Boyers might have been able to remain employed and so such alternative had not been properly explored by the DWP, making it more difficult to objectively justify the ultimate dismissal.

This case illustrates that in discrimination arising from disability cases, Tribunals will balance the reasonable needs of the employer against any discriminatory effects of their actions on the employee but even if an employer has legitimate aims, it will be difficult to show that dismissal is proportionate if those aims are not reflected in the decision-making process leading to the dismissal. Employers must also be able to demonstrate that less discriminatory alternatives have been properly considered and, if an alternative (such as a trial period in a new role) is implemented, that it is given a proper opportunity to succeed. If it is not given that opportunity, a Tribunal might consider it to be a disingenuous exercise leading to a predetermined dismissal.