Thread by @JasonBraier

1/ Gray v University of Portsmouth: a useful reminder of the rigour with which an ET is expected to critically evaluate an employer's objective justification defence in the context of dismissing an absent disabled employee
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ G is autistic. He was a Service Delivery Analyst in the Uni's information service department. A disagreement with a manager led G to go on sick leave for a stress-related decision. G didn't return to work.

3/ The Uni had a 4-stage absence management process, potentially leading to dismissal. There was no question the Uni was very accommodating of G's needs & took this process seriously and carefully. G was reluctant to engage in aspects of the process or in return to work proposals

4/ The Uni had agreed to pay for a temporary support worker to phase G but G and his CAB representative didn't help the Uni to move forward with this proposal. Ultimately after more than 18 months of absence, a Stage 4 meeting was held (without G attending) & G was dismissed.

5/ Following an unsuccessful appeal, G brought a s.15 claim complaining about the start of the capability process, the withdrawal of sick pay after 6 months, the dismissal and the rejection of G's appeal. He also brought a FTMRA claim re stopping sick pay & the capability process

6/ The EAT appeal focuses on the objective justification defence. The ET had accepted the efficient running of the department as part of the service to students was a legitimate aim. It accepted that commencing stage 1 of the process was a proportionate means of achieving the aim

7/ Likewise in re sick pay. G had also brought a FTMRA claim on the stopping of sick pay, & the ET had relied on O'Hanlon & Griffiths in rejecting that claim in the absence of exceptional circumstances requiring sick pay's extension.

8/ On the dismissal decision, the ET noted the disruption to the Uni from G's lengthy absence & the efforts made re a support worker, but without G doing his part to identify someone able to provide the support he considered necessary. The ET found the same was the case on appeal

9/ Finally, on the FTMRA claim re the application of the capability policy, the ET noted G contended that there should be no timescale for steps to be taken by him, which the ET didn't consider a reasonable step to alleviate a particular disadvantage to G.

10/ G appealed to the EAT on grounds that (1) the ET failed to identify the legitimate aim, the level of the Uni's need/impact of G's absence, nor that the measures the Uni took would aid the effective running of the department. G also claimed the ET misapplied O'Brien v Bolton.

11/ The EAT set out the key principles in McCulloch & Hardy & Hansons on the objective justification test & the need for critical evaluation of the justification put forward, as well as setting out from the CA in O'Brien that the extent of evidence required depends on context.

12/ The EAT stressed the ET isn't merely required to carry out a critical evaluation for s.15(2) purposes, but to demonstrate it's done so in its reasons. The EAT accepted the ET had carried out that critical evaluation re starting the capability process & the sick pay decision.

13/ On dismissal though, it wasn't enough for the ET to state that holding open G's job would be 'significantly disruptive' for the Uni without explain why it found this to be the case. No finding was made about how G's job was covered & about any disruption from his absence.

14/ This was not one of those cases, anticipated in O'Brien, where the extent of disruption would be obvious without relevant evidence and findings. It might be that the ET could justify allowing the s.15(2) defence, but that wasn't clear on the reasoning.

15/ The appeal was thus allowed, and the EAT concluded that the matter should be remitted to the same ET, who had already made detailed findings of fact which weren't in themselves found to be flawed.