Employment Appeal Tribunal provides guidance on the objective justification test in a claim of discrimination arising from disability
A claim for discrimination arising from disability occurs where an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim (section 15, Equality Act 2010).
In Buchanan v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal EAT has held that an employer faced with a disability discrimination claim arising from the application of an absence management policy must justify the way it has applied the policy to a particular employee, rather than simply justifying the policy itself.
Mr Buchanan was employed as a police motorcyclist when he was involved in an accident whilst responding to an emergency call. He went on long-term sickness absence, suffering from post-traumatic stress disorder. It was accepted that he was disabled within the meaning of the Equality Act. After eight months, his absence was managed under the ‘Unsatisfactory Performance Procedure’ UPP, a three-stage procedure which contained detailed provisions relating to meetings with employees, assessments and the issuing of improvement notices. Mr Buchanan received several improvement notices requiring him to return to work when he was incapable of doing so due to his illness. He brought an Employment Tribunal claim alleging discrimination arising from disability in relation to the actions taken under the UPP, including being issued with the improvement notices.
The Tribunal accepted that Mr Buchanan had been treated unfavourably. However, it held that the police force was only required to justify the UPP generally, rather than the way it had applied the UPP to Mr Buchanan. It agreed with the employer’s argument that the UPP was a proportionate means of achieving the legitimate aim of managing absence, and issuing the improvement notices was therefore justified. Mr Buchanan appealed, arguing that the Tribunal’s approach to justification was wrong.
The EAT allowed the appeal, ruling that it was the decisions and actions taken by individual managers under each stage of the UPP which had to be justified since these were what constituted the ‘treatment’ for the purposes of the claim of discrimination arising from disability. Since it is the treatment which has to be objectively justified, the employer had to justify the application of the UPP to Mr Buchanan, not the underlying procedure itself. The case was sent back to the same Tribunal to reconsider the issue of justification.
Managing sickness absence will usually be a legitimate aim. If employers only had to establish that an absence management procedure was a proportionate means of achieving that aim, the protection available to disabled employees under the Equality Act would be undermined. This case clarifies that employers must be able to justify the way that they apply their absence management policy to a particular employee, including assessing whether allowances or adjustments should be made to take account of the circumstances of that individual, rather than justifying the existence of the policy in general terms.