Department for Work and Pensions v Susan Boyers

Under section 15(1)(b) of the Equality Act 2010, an employment tribunal must objectively balance the employer’s reasonable needs and legitimate aims against the discriminatory effect of dismissal. The dismissal must be appropriate and reasonably necessary.

The tribunal must focus on whether the outcome is justified. However, the employer’s process may be relevant because a failure to consider or evaluate a less discriminatory alternative can show that dismissal was not necessary. The assessment is not confined by contractual terms concerning place of work or duties. A possible alternative role or work trial may be weighed in the balance. A section 15 claim may succeed even where there is no corresponding breach of the duty to make reasonable adjustments.

The claimant, who was disabled by chronic migraines and a mixed anxiety and depressive disorder, was dismissed after a lengthy sickness absence. She had completed a six-week work trial at Eston, away from her contractual workplace at James Cook House, Middlesbrough. The respondent treated the trial as unsuccessful and dismissed her without properly evaluating whether it could support her continued employment.

The Employment Tribunal upheld her claim of discrimination arising from disability under section 15 of the Equality Act 2010. On an earlier appeal, the EAT remitted proportionality because the tribunal had concentrated on procedural failings without sufficiently balancing the employer’s legitimate aims against the effect of dismissal. On remission, the tribunal again found dismissal disproportionate. The respondent appealed, contending that proportionality should be confined to the claimant’s contractual role and workplace, and that section 15 could not succeed without a corresponding reasonable-adjustments duty.

1. Appeal dismissed. The tribunal had carried out the required proportionality assessment and its conclusion that dismissal was disproportionate was open to it.
2. Section 15(1)(b) of the Equality Act 2010 requires an objective balance between the employer’s reasonable needs, represented by its legitimate aims, and the discriminatory impact of dismissal. The treatment must be appropriate and reasonably necessary. This is not a range-of-reasonable-responses inquiry.
3. The earlier EAT decision did not make the procedure leading to dismissal irrelevant. The outcome, rather than the decision-maker’s subjective reasoning, must be justified. Yet the procedure may show whether less discriminatory alternatives were considered. The respondent’s failure properly to evaluate the Eston work trial had a direct bearing on whether dismissal was necessary. A proper evaluation might have enabled continued employment and avoided dismissal.
4. The proportionality exercise was not limited to the claimant’s contractual workplace or duties. If suitable alternative work or a work trial is available elsewhere, it may be a less discriminatory alternative to dismissal. The tribunal was entitled to weigh the respondent’s failure to evaluate that possibility against the severe effect of dismissal and the limited advancement of the asserted aims.
5. The tribunal did not impose a free-standing duty to redeploy. It assessed the actual work trial offered and the respondent’s failure to evaluate it before dismissal. Nor is a section 15 claim conditional upon proving a breach of the reasonable-adjustments duty under sections 20 and 21. The protections are separate, and dismissal may be disproportionate although no reasonable adjustment was required.

• Employment Appeal Tribunal: The respondent’s first appeal, UKEAT/0292/19, was allowed to the extent that proportionality was remitted to the same Employment Tribunal for redetermination.
• Employment Tribunal: In its second judgment, sent to the parties on 4 November 2020, the tribunal again held that dismissal was not a proportionate means of achieving the respondent’s legitimate aims.
• Employment Appeal Tribunal: The respondent’s second appeal was dismissed: [2022] EAT 76.