DISABILITY DISCRIMINATION – Disability related discrimination
The Claimant was employed by the Respondent, a provider of services for adults and children with special needs, as a care worker on a temporary basis. She applied for and was granted a permanent position, but subject to medical clearance. Following receipt of a medical report, the Respondent withdrew the offer. Her claim of discrimination arising from disabilities (s.15 of the Equality Act 2010) was upheld by the Employment Tribunal. In particular, it held that the withdrawal of the offer was not a proportionate means of achieving the legitimate aim of compliance with the Respondent’s Duty under Regulation 32(3) of the Children’s Homes (England) Regulations 2015.
The Respondent challenged the decision on proportionality, in particular contending that the ET failed to ask itself whether the lesser steps which it had identified would be likely to have resulted in a different response from the Respondent’s decision maker; and that on the evidence, the job offer would still have been withdrawn.
The EAT dismissed the appeal, in particular holding that, in considering the issue of proportionality, the ET did not have to be satisfied that the identified and proportionate lesser measures would or might have been acceptable to the decision maker or otherwise caused him to take a different course. To do so would be at odds with the objective question which it had to determine; and would give primacy to the evidence and position of the decision maker.
Judges:
Soole J
Citations:
[2019] UKEAT 0288 – 18 – 1104
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 12 July 2022; Ref: scu.639326