Hensman v Ministry Of Defence

In assessing justification for discrimination arising from disability, an Employment Tribunal must make its own objective proportionality assessment. It must balance the employer’s real business needs against the discriminatory effect, following a fair and detailed analysis of the relevant working practices and business considerations. It may not overlook the employer’s actual concerns.

In assessing unfair dismissal, the Tribunal must not substitute its view of the appropriate sanction for that of the employer. The range-of-reasonable-responses assessment must address the employer’s reasons for dismissal. Sentencing remarks in criminal proceedings may be relevant, but do not displace the need to consider legitimate employment concerns and later disciplinary material.

The claimant, a civilian employee of the Ministry of Defence, was dismissed for gross misconduct after pleading guilty to outraging public decency. The conduct involved covert filming of another employee in shared accommodation. The Crown Court imposed a community order and made remarks concerning the claimant’s Asperger’s syndrome and other disorders.

The Employment Tribunal held that the dismissal was unfair and amounted to discrimination arising from disability contrary to section 15 of the Equality Act 2010. It found that the claimant’s conduct arose from his disability, that dismissal was disproportionate, and that dismissal fell outside the range of reasonable responses. The Ministry appealed on causation, proportionality, unfair dismissal, and contributory fault.

The central issues were whether the Tribunal had properly assessed proportionality and substantive fairness while taking account of the employer’s stated concerns about trust and covert conduct.

1. Appeal allowed on grounds 2 and 3. The findings of discrimination arising from disability and unfair dismissal were set aside and remitted to a differently constituted Employment Tribunal.

2. The Employment Tribunal had not erred on causation under section 15 of the Equality Act 2010. It had correctly directed itself and was entitled, on the evidence including the sentencing remarks, to find as a fact that the conduct leading to dismissal arose in consequence of Asperger’s syndrome. Ground 1 was dismissed.

3. The Tribunal erred in its proportionality assessment. Under Hardy and Hansons Plc v Lax, [2005] ICR 1565, proportionality is an objective exercise for the Tribunal, not a range-of-reasonable-responses inquiry. However, it requires a fair and detailed balancing of the discriminatory effect against the employer’s real business needs. The Tribunal did not analyse the Ministry’s concerns about breach of trust and covert recording. Its focus on the Crown Court’s sentencing remarks was therefore insufficient.

4. The Tribunal also erred in finding substantive unfairness. Although it correctly stated the range-of-reasonable-responses test, it referred again to delay despite having treated delay as a separate procedural issue. More fundamentally, it relied only on the sentencing remarks and did not address the employer’s reasons for dismissal, including the claimant’s differing account during the disciplinary process. That approach impermissibly substituted the Tribunal’s view of the sanction.

5. On the alternative contributory-fault ground, the Tribunal would not have erred. Criminal conduct will ordinarily be blameworthy for employment purposes, but the issue is fact-sensitive. In the unusual circumstances found, including the sentencing remarks that the claimant was not at fault, the conclusion was not perverse. Ground 4 would have been dismissed.

6. Because the errors went to fundamental issues of proportionality and fairness, and the original Tribunal had placed undue weight on the sentencing remarks, remission to a differently constituted Tribunal was required.

• Employment Appeal Tribunal: the Ministry’s appeal was allowed on proportionality and substantive unfair dismissal. The liability issues were remitted to a differently constituted Employment Tribunal.
• Employment Tribunal: on 19 November 2013, it found unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010, while rejecting reasonable-adjustments and direct-discrimination claims.