Birtenshaw v Oldfield

For the justification defence under section 15(1)(b) of the Equality Act 2010, proportionality is an objective balancing exercise. The tribunal must decide whether the unfavourable treatment was an appropriate and reasonably necessary means of achieving the legitimate aim.

It may consider whether a lesser measure could have served that aim. It need not find that the employer's decision-maker would have accepted that measure or made a different decision. Although proper respect is due to a rational and responsible decision-maker's assessment of need, that evidence cannot displace the tribunal's ultimate objective judgment.

The claimant had worked for the respondent charity as an agency care worker. The respondent offered her permanent employment subject to medical clearance, but withdrew the offer after considering an occupational-health report concerning her mental-health condition. The report stated that she was medically fit for the role without restrictions.

The Employment Tribunal upheld her claim for discrimination arising from disability under section 15 of the Equality Act 2010. It held that withdrawal of the offer was not a proportionate means of securing compliance with Regulation 32(3) of the The Children's Homes (England) Regulations 2015.

The respondent appealed, alleging that the Tribunal had failed to assess whether further enquiries or lesser measures would have altered its decision-maker's decision, and that the Tribunal's conclusion was perverse.

1. Appeal dismissed. The Employment Tribunal made no error of law and its conclusion on proportionality was not perverse.

2. Under section 15(1)(b) of the Equality Act 2010, the question is whether the unfavourable treatment was a proportionate means of achieving the particular legitimate aim. The conduct must be appropriate and reasonably necessary for that purpose. In conducting that objective balancing exercise, a tribunal may consider whether a lesser measure might have served the aim.

3. The statutory inquiry differs from the reasonable-adjustments duty under sections 20 and 21. In a reasonable-adjustments case, the prospective effectiveness of a proposed step is relevant to whether it was reasonable to take it. That does not require, in a section 15 case, an inquiry into whether the employer's decision-maker would have accepted the lesser measure or chosen differently had it been taken.

4. A tribunal should give substantial respect to a decision-maker's assessment of what is reasonably necessary where that person acted rationally and responsibly. But the tribunal remains responsible for the ultimate balance. Giving primacy to the decision-maker's stated response would be inconsistent with the objective nature of the section 15 inquiry and would wrongly import a Polkey-type assessment.

5. The Tribunal was entitled to find that further occupational-health clarification, medical information, discussion with managers and the claimant, a more rigorous assessment, or a trial period had potential to serve the regulatory aim. Its findings concerning the occupational-health opinion, the claimant's incident-free agency work, and the deficiencies in Mr Reid's evidence supported the conclusion that immediate withdrawal was disproportionate. Subsequent evidence could be considered, but did not compel a different conclusion.

• Employment Appeal Tribunal: dismissed the respondent's appeal from the Employment Tribunal.
• Employment Tribunal at Manchester: upheld the claimant's section 15 disability-discrimination claim in a decision sent to the parties on 4 May 2018.