Ali v. Torrosian & Ors (t/a Bedford Hill Family Practice)

For a dismissal to be justified under section 15 of the Equality Act 2010, it must be an appropriate and reasonably necessary means of achieving the employer’s legitimate aim. The tribunal must objectively balance the discriminatory effect against the employer’s reasonable needs and consider materially less discriminatory alternatives.

Where medical evidence indicates that part-time work may be possible, and the employer could potentially accommodate it, that alternative is material to the proportionality assessment. A tribunal errs in law if it finds dismissal proportionate without addressing that alternative. Although unfair-dismissal and section 15 claims involve different legal tests, their factual assessments may substantially overlap.

The claimant was a GP employed by the partners in a small medical practice. Following a heart attack, he was absent on long-term sickness leave. He was a disabled person under the Equality Act 2010. Medical advice indicated that he was unlikely to resume full-time work but might return on a phased part-time basis.

The Employment Tribunal upheld his unfair-dismissal claim because the respondents had not obtained updated medical advice or meaningfully explored part-time work. It nevertheless dismissed his claim under section 15 of the Equality Act 2010, holding that dismissal was a proportionate means of securing the best possible patient care. The claimant appealed only that dismissal of the section 15 claim.

1. Appeal allowed and claim remitted. The Employment Tribunal had correctly identified that section 15 of the Equality Act 2010 required it to decide whether dismissal was a proportionate means of achieving the legitimate aim of providing the best possible patient care. That inquiry required consideration of whether the aim could reasonably be achieved by a less discriminatory route and a balance between the employer’s reasonable needs and the discriminatory impact.

2. The Tribunal’s reasons on proportionality properly addressed the financial and operational burden of the claimant’s absence, the impact on continuity of care, and the inability to recruit a permanent replacement while he remained employed. Those were relevant matters. However, its section 15 reasoning did not consider whether part-time working could address those matters while avoiding, or reducing, the discriminatory effect of dismissal.

3. Part-time work was a material alternative. The claimant had medical support for a phased part-time return. In deciding the unfair-dismissal claim, the Tribunal had also found that four sessions of work could have been possible and that the respondents had unreasonably failed to investigate that possibility. Reading the judgment as a whole did not cure the omission from the proportionality assessment.

4. The tests under section 15 and section 98 of the Employment Rights Act 1996 differ, but the relevant factual considerations may overlap substantially in a long-term sickness dismissal. The error did not compel a finding that dismissal was discriminatory. The unfair-dismissal finding identified a procedural failure and was tentative as to the practical prospect of a part-time return.

5. The case was remitted to the same Employment Tribunal, if practicable, to reconsider proportionality under section 15 in light of its finding that part-time working could have been accommodated. It could receive further submissions but was unlikely to require further evidence.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the section 15 proportionality issue for reconsideration.
• London (South) Employment Tribunal: By a reserved judgment sent on 4 April 2017, upheld unfair dismissal but dismissed the disability-discrimination claims, including the section 15 claim.