Tribunal wrong to focus on employer's decision-making process when considering whether discrimination arising from disability was objectively justified 


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The Employment Appeal Tribunal (EAT) has held in Department of Work and Pensions v Boyers that an employment tribunal was wrong to focus on the employer's decision-making process, rather than conducting a balancing exercise between the needs of the employer and the effect of the discriminatory dismissal on the employee, when it considered whether discrimination arising from disability was objectively justified.

The claimant was disabled and was dismissed by her employer (the Department of Work and Pensions (DWP)) for disability-related absence (she was on long-term sickness absence as a result of work-related stress).  The tribunal found that she had been unfairly dismissed and that her dismissal was discrimination arising from her disability.  Although the tribunal accepted that the dismissal pursued the legitimate aims of protecting scarce public resources and reducing the impact on other employees caused by her absence, it held that her dismissal was not justified because it was not a proportionate means of achieving either of the two aims identified.

On appeal the EAT considered the issue of discrimination arising from disability.  It held that the tribunal had wrongly focussed on the actions and thought processes of the DWP's managers than conducting a balancing exercise between the needs of the DWP and the discriminatory effect of the dismissal.  The tribunal had failed to evaluate objectively the proportionality of the dismissal, given the legitimate aims which were being pursued.  The dismissal was unfair, but this did not necessarily mean that it was also disproportionate.  The matter was remitted back to the tribunal for reconsideration.

Take note:  The decision in Boyers shows that the tribunal has to carry out a balancing act between the needs of the employer as served by the legitimate aims it identifies, and the discriminatory impact on the claimant.  Here the tribunal had failed to consider whether the claimant's dismissal was a proportionate means of achieving the legitimate aims identified by the DWP and had focussed on the DWP's decision-making process instead.

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