Disability Discrimination – discrimination arising from disability – section 15 Equality Act 2010
The Employment Tribunal (‘ET’) found that the respondent’s decision to dismiss the claimant after a period of sickness absence was discrimination arising from disability, as prohibited by section 15 of the Equality Act 2010 (‘EqA’). In particular, it found that dismissal was a disproportionate response for the purposes of section 15(1)(b) EqA. The respondent appealed. The EAT, in an earlier judgment (UKEAT/0292/19), upheld the appeal and remitted to the same ET the task of assessing whether the dismissal was proportionate to the respondent’s legitimate aims. The EAT on that occasion concluded that the ET had wrongly focused on the procedure leading to the dismissal decision – as it would do in an unfair dismissal claim – without properly examining whether the outcome itself was justified by reference to the aims relied upon by the employer. Upon remission, the ET carried out that exercise afresh, and it reached the same conclusion that the dismissal was disproportionate and therefore discriminatory. The respondent appealed again.
Held: dismissing the appeal
The ET had properly carried out the balancing exercise required of it, and permissibly decided that the dismissal was disproportionate by reference to the respondent’s failure to evaluate a trial the claimant had undergone in a different role in a different location and which, if properly evaluated, might have avoided dismissal. The EAT’s previous judgment in this matter was not authority for the proposition that the procedure leading to a dismissal decision was irrelevant to the balancing exercise, so long as the ET remained focused on the question of whether the outcome of the decision-making process was capable of justification. Furthermore, the EAT rejected a submission that the assessment of proportionality required by section 15(1)(b) EqA was constrained by the terms of a claimant’s contract of employment relating to matters such as place of work; it would undermine the protection afforded to disabled people if the ET was unable to weigh in the balance the prospect of redeployment to another role outside the strict terms of the contract of employment, which might be a less discriminatory alternative to dismissal. The EAT also rejected a submission that a dismissal could not be disproportionate for the purposes of section 15(1)(b) EqA if there was no corresponding duty to make reasonable adjustments.
Judges:
Judge Barry Clarke
Citations:
[2022] EAT 76
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 07 September 2022; Ref: scu.680695
