Iceland Foods Ltd v Stevenson

Justification under section 15 of the Equality Act 2010 is an objective question for the tribunal. The tribunal must assess the justification advanced on the evidence available at the hearing and balance all relevant factors. It must not confine the inquiry to the dismissing officer’s beliefs or to the material available at dismissal.

In long-term sickness cases involving disability, the proportionality assessment and ordinary unfair-dismissal assessment will ordinarily be expected to produce compatible findings. Where materially inconsistent factual findings cannot be reconciled by the different legal tests, both decisions are vitiated by error of law.

The claimant, a supermarket till operator, was absent following a shoulder fracture which amounted to a disability. The Employment Tribunal dismissed her ordinary unfair-dismissal claim under the Employment Rights Act 1996, but upheld her claim that dismissal was unfavourable treatment arising from disability contrary to section 15 of the Equality Act 2010.

The employer appealed the section 15 finding. The claimant cross-appealed the dismissal of her unfair-dismissal claim. The central issue was whether the Tribunal’s findings on justification and fairness were legally sustainable and mutually consistent.

1. Appeal and cross-appeal allowed. The Tribunal erred in law in its determination of the section 15 claim. Justification is an objective assessment for the Tribunal. The Tribunal had focused on the dismissing officer’s beliefs at the dismissal meeting, rather than examining at the hearing whether dismissal was a proportionate means of achieving the legitimate aim of regular and reliable attendance.

2. The Tribunal was entitled to find that the dismissing officer genuinely believed that the business could not wait longer. However, it had to decide whether that belief was objectively reasonable. It had not reconciled that conclusion with its findings that the employer lacked up-to-date staffing information, had not established operational difficulty, and had not explained why the claimant could not remain employed while other staff covered her duties.

3. The Tribunal also failed to evaluate the significance of the imminent consultant appointment and the prospect that a further occupational-health referral could quickly provide clearer information about prognosis. Its acceptance that no employee had remained on the books for more than 12 months was not accompanied by an objective explanation of why that stance was reasonable in the circumstances.

4. The unfair-dismissal conclusion was likewise unsustainable. The Tribunal’s findings bearing on staffing, the possibility of retaining the claimant, and the further medical assessment could not readily be reconciled with its conclusion that the employer could not reasonably wait longer. The inconsistency could not be explained by the distinction between the statutory tests. In a long-term sickness dismissal involving disability, the approach in O’Brien indicated that the two assessments should normally not lead to divergent results.

5. The case involved factual issues and could not properly be determined by substituting findings on appeal. In light of the criticised inconsistencies, it was remitted for a full rehearing before a fresh Employment Tribunal.

• Employment Appeal Tribunal: Allowed the employer’s appeal and the claimant’s cross-appeal, set aside the relevant conclusions, and remitted the case to a fresh Tribunal for rehearing: [2020] UKEAT 0309_19_1302.
• Employment Tribunal (Manchester): Written reasons sent on 18 January 2018. It upheld the claimant’s section 15 claim under the Equality Act 2010 but dismissed her ordinary unfair-dismissal claim under the Employment Rights Act 1996.