Bolton St Catherine's Academy v Ms G O'Brien

Under section 15 of the Equality Act 2010, justification is an objective question. The tribunal must assess proportionality on all material before it. An employer need not have considered justification contemporaneously or adduce detailed evidence if reasoned and rational judgment, including ordinary industrial experience, establishes the effect on its undertaking.

That inquiry differs from unfair-dismissal review under section 98(4) of the Employment Rights Act 1996. In ill-health cases, the tribunal must decide whether dismissal fell within the range of reasonable responses and whether the employer could reasonably be expected to wait longer. It must not substitute its own view or treat an internal appeal by review as a rehearing requiring fresh evidence.

A senior ICT teacher was absent with stress-related ill-health following an assault by a pupil. She was disabled within the meaning of the Equality Act 2010. After approximately 14 months’ absence, uncertain medical prognosis and limited co-operation in providing medical information, the Academy dismissed her for capability. An internal appeal, conducted as a review, was dismissed.

The Employment Tribunal upheld claims of discrimination arising from disability under section 15 and unfair dismissal. It found that the Academy had not proved the adverse operational impact of the absence, should have waited longer and should have obtained further medical evidence. The Academy appealed. The central issues were whether the Tribunal had correctly applied objective proportionality and the reasonable-range-of-responses test.

1. Appeal allowed. The Employment Tribunal erred in its assessment of both section 15 justification and unfair dismissal. The claims were remitted to a freshly constituted Tribunal.

2. Under section 15 of the Equality Act 2010, proportionality is objective. The employer need not show that it expressly performed a balancing exercise when dismissing, and it may rely on material available before the Tribunal, including material arising after the decision. The Tribunal must itself weigh the discriminatory effect against the reasonable needs of the undertaking.

3. The Tribunal wrongly treated the absence of detailed evidence about operational impact, and the absence of contemporaneous consideration of that impact, as fatal to justification. It failed to use common sense and industrial experience. The long absence of a senior teacher with teaching, leadership and administrative duties, the cost of cover, the burden on colleagues, the uncertain prognosis and the school’s educational responsibilities were material capable of supporting justification.

4. The question was not simply whether the Academy could accommodate the absence, but whether it should be required to do so, and for how long. The Tribunal did not adequately address that issue. It also erred in treating the review appeal as if it required a rehearing and further medical evidence.

5. For unfair dismissal, the applicable question under section 98(4) of the Employment Rights Act 1996 was whether dismissal was within the range of reasonable responses. The Tribunal substituted its own view by holding that any reasonable employer would have waited and obtained another report. It improperly conflated that test with objective proportionality.

6. The remitted Tribunal was directed to determine whether dismissal was a proportionate means of achieving the accepted aims of efficient operation, cost reduction and a good standard of teaching, and whether dismissal fell within the range of reasonable responses.

• Employment Appeal Tribunal: Allowed the Academy’s appeal and remitted the claims for fresh determination.
• Employment Tribunal (Manchester): On 6 November 2014 upheld claims under section 15 of the Equality Act 2010 and unfair dismissal, while dismissing other claims. No citation was stated.