Dl Insurance Services Ltd v O'Connor

In a claim under section 15 of the Equality Act 2010, justification is an objective question of whether the unfavourable treatment was a proportionate means of achieving a legitimate aim. The employer bears the burden of proving proportionality and must provide case-specific evidence, rather than generalisations.

A procedural failure does not by itself determine proportionality. It may, however, leave an evidential gap which prevents the employer from proving that the treatment would achieve its stated aim in the disabled employee’s particular circumstances.

The employer appealed from an Employment Tribunal decision, sent to the parties on 27 April 2017, which upheld the employee’s complaint under section 15 of the Equality Act 2010. The Tribunal had dismissed her reasonable-adjustments complaint.

The employee had received a 12-month written warning for sickness absences which were substantially disability-related. The warning exposed her to further disciplinary action and suspended sick pay during its currency. The employer accepted that adequate attendance and improving attendance were legitimate aims, but had not obtained occupational-health or other medical advice before imposing the warning.

The appeal alleged that the Tribunal had wrongly focused on procedure rather than objective proportionality and had given inadequate reasons for rejecting justification.

1. Appeal dismissed. The Tribunal was entitled to find that the employer had not established that the written warning was a proportionate means of achieving its legitimate aims under section 15(1)(b) of the Equality Act 2010.

2. Justification is an objective and substantive question. It does not depend on the employer’s subjective reasoning process, and treatment may in principle be justified despite a careless, mistaken or inadequate process.

3. That principle does not require the Tribunal to assess proportionality in an evidential vacuum. The employer bears the burden of justifying the treatment. The Tribunal was therefore entitled to examine the employer’s explanation and evidence when deciding whether the warning was capable of proportionately achieving the stated aim.

4. The Tribunal had not treated the failure to follow the absence policy, or to obtain occupational-health or medical advice, as automatically decisive. It treated that failure as capable of explaining why the employer lacked specific evidence about alternatives, including whether a change of role might improve attendance.

5. The Tribunal had adequately explained its conclusion. It could find that the employer relied on general assertions about the impact of absence and about warnings improving attendance, without evidence of the impact on this employee’s team or an explanation of how a warning would improve genuine, disability-related absences beyond the employee’s control. It was also entitled to weigh the financial and health consequences of withdrawing sick pay and exposing her to further sanctions.

6. Improved attendance after the warning and a subsequent change of role did not demonstrate that the warning caused the improvement, or that it was proportionate. Even if it had affected attendance, it did not resolve the proportionality of achieving attendance by withholding pay or inducing attendance while unfit.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s finding of disability discrimination under section 15 of the Equality Act 2010 was upheld.
• Employment Tribunal, Bristol: In a judgment sent to the parties on 27 April 2017, upheld the section 15 complaint concerning the written warning and dismissed the reasonable-adjustments complaint.