Department of Work and Pensions v Boyers

Under section 15 of the Equality Act 2010, justification requires an objective proportionality assessment. The tribunal must balance the employer’s real needs, reflected in the legitimate aims pursued, against the discriminatory effect on the disabled employee. It must decide whether the measure was appropriate and reasonably necessary to achieve those aims.

A tribunal errs if it treats defects in the employer’s decision-making process as determinative. Those defects may inform scrutiny of possible less discriminatory alternatives, but the legal question remains whether the outcome was objectively justified. An unfair-dismissal finding, particularly one based on procedure, does not necessarily establish that dismissal was disproportionate under section 15.

The claimant, a disabled employee, was dismissed during a prolonged sickness absence. The Employment Tribunal upheld claims for unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010. It accepted that dismissal pursued legitimate aims of protecting public resources and reducing pressure on colleagues, but held that dismissal was disproportionate.

The employer’s appeal against unfair dismissal did not proceed after the sift stage. Its appeal against the section 15 finding proceeded on the ground that the Tribunal had focused on defects in its decision-making process rather than objectively balancing the legitimate aims against the discriminatory impact of dismissal.

1. Appeal allowed. The Employment Tribunal’s finding that dismissal was disability discrimination contrary to section 15 of the Equality Act 2010 was set aside. The section 15 claim was remitted to the same Tribunal for redetermination.

2. Justification under section 15 requires an objective balance between the employer’s reasonable needs, represented by the legitimate aims, and the discriminatory effect of dismissal on the employee. The Tribunal must assess whether dismissal was an appropriate means of achieving each legitimate aim and reasonably necessary for that purpose.

3. The Tribunal had accepted two legitimate aims: protecting scarce public funds and resources, and reducing the strain on colleagues caused by the claimant’s absence. Its reasoning did not assess the evidence of the effect of continued employment on either aim, or weigh those needs against the impact of dismissal on the claimant.

4. The Tribunal instead focused on perceived failures in the employer’s process, including the absence of current medical evidence, the handling of the work trial, and the decision-maker’s approach. That was an error of law. Process may be relevant because it can assist scrutiny of less discriminatory alternatives, but it does not replace the objective assessment of the dismissal outcome.

5. The unfair-dismissal finding did not cure the error. The statutory tests may often produce the same result in long-term sickness cases, but an unfair-dismissal finding based on procedural matters does not necessarily establish a failure of justification under section 15.

6. Remittal, rather than substitution, was necessary because the evidential position concerning the legitimate aims was unclear. The same Tribunal could fairly undertake the short, fresh proportionality assessment on the evidence already given. No direction was made permitting further evidence.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the section 15 disability-discrimination finding and remitted that issue to the same Employment Tribunal.
• Employment Tribunal, North Shields: Upheld unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010. The unfair-dismissal finding was not pursued in this appeal and remained in force.