Section 15 of the Equality Act 2010 deals with discrimination arising from disability. This is where an employee is treated unfavourably because of something arising from their disability. An employer will have a defence if it can show that its actions were a proportionate way of achieving a legitimate business aim.
In Gray v University of Plymouth, the employee worked in the employer’s Information Services department. He was dismissed after two years off sick for reasons relating to his disability. He brought a claim for discrimination arising from disability, saying he had been treated unfavourably by his employer in calling a formal meeting under their absence management policy, stopping his sick pay, dismissing him and rejecting his appeal. The employment tribunal said the employer’s legitimate aim was to ensure the efficient running of the Information Services department as part of its student offer. They said that their actions were a proportionate way of achieving those aims. The tribunal’s judgment said it was ‘obvious’ that keeping the employee’s job open was significantly disruptive. The employee appealed.
The EAT said that section 15 requires the employment tribunal to carry out its own critical evaluation of justification and set that out in the decision. In stating that it was obvious that keeping the employee’s job open would be disruptive, the tribunal had failed to explain why they reached that decision. They hadn’t included any findings about how the employee’s job was being covered, the disruption (if any) caused by his absence, or any additional costs that were being incurred as a result of his absence. Although plenty of evidence had been adduced on this point, the tribunal had not set out its own reasoning. The EAT allowed the appeal and sent the case back to the original tribunal to revisit the issue.
This case shows that the tribunal not only has to undertake that critical evaluation of an employer’s objective justification defence but also set out its reasoning for arriving at that decision. It is also a good reminder for employers about the need to examine the impact and effect of an employee’s absence on the business before moving to dismiss a disabled person. That process could be put under the microscope at a later date, so make sure you get it right.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539