Birmingham City Council v Lawrence (Disability Discrimination)

For a claim under section 15 of the Equality Act 2010, the tribunal must identify the reason for the unfavourable treatment and determine objectively whether the relevant “something” arose in consequence of disability. It must then conduct a critical and balanced proportionality assessment of the discriminatory effect and the employer’s reasonable business needs.

The reasonableness of an adjustment under sections 20 and 21 is objective. The tribunal must assess the likely practical difference made by the proposed step and balance that against the employer’s needs. In a capability dismissal, the section 98(4) assessment must also take account of operational consequences of continuing absence, although it may often reach the same result as the discrimination assessment.

The Claimant, an employee of the Council since 2000, had PTSD and a substantial history of sickness absence. She was dismissed in January 2015 after further absence from work and no clear return date.

The Employment Tribunal upheld claims under section 15 and sections 20 and 21 of the Equality Act 2010, and a claim of unfair dismissal. It found that absence arose from the Claimant’s disability, that dismissal should have been deferred pending therapy, and that the dismissal was unfair. It rejected direct disability discrimination.

The Council appealed the successful findings. The central issues were whether the Tribunal had properly addressed section 15 justification, the objective reasonableness of the proposed adjustment, and fairness under section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed in part and remitted. The Employment Tribunal’s findings that the Claimant’s absence arose from PTSD and that dismissal was because of absence rather than disability were sufficient, when its Reasons were read as a whole, to establish the initial elements of section 15. Its presentation was not a model, but the relevant causal findings could be discerned.

2. The Tribunal’s section 15 conclusion was nevertheless unsafe. Objective justification requires a critical proportionality assessment which balances the discriminatory effect of dismissal against the employer’s reasonable needs. The Tribunal had not scrutinised the Council’s working practices, business considerations, or the operational effects of managing the Claimant’s lengthy absence. Its section 15 finding was set aside.

3. The Tribunal had not treated a failure to investigate as a free-standing reasonable adjustment. Its criticism of the Council’s enquiry was instead part of its account of how the procedure had been handled. The appeal on that ground was dismissed.

4. However, the reasonable-adjustments finding could not stand. The operative adjustment found was deferral of dismissal until therapy was completed or provisionally assessed. The Tribunal had not objectively assessed what difference that step was likely to make, or balanced its likely effectiveness against the Council’s needs during the continued absence. The findings under sections 20 and 21 were set aside.

5. The unfair-dismissal finding was also unsafe. Although section 98(4) applies a differently expressed test, the Tribunal had failed to weigh relevant operational pressures on the Council and its service caused by continuing absence. It therefore had not properly assessed the range of reasonable responses.

6. The outstanding issues were remitted, if practicable, to the same Tribunal: section 15 justification, the reasonableness of deferring dismissal under section 20, and fairness under section 98(4). Further evidence and case management were left to that Tribunal.

• Employment Appeal Tribunal: Allowed the Council’s appeal against the section 15, reasonable-adjustments, and unfair-dismissal findings, except for the challenge based on an alleged free-standing duty to investigate. The outstanding issues were remitted to the same Employment Tribunal if practicable.
• Employment Tribunal: By a unanimous judgment sent on 29 March 2016, upheld claims under sections 15, 20 and 21 of the Equality Act 2010 and unfair dismissal under the Employment Rights Act 1996; it dismissed the direct-discrimination claim.