Thread by @JasonBraier

1/ DWP v Boyers: When considering a s.15 EqA claim re dismissal of a long absent employee, it's appropriate for the ET to look outside the strict contractual terms when reviewing proportionality & the potential solutions to avoid dismissal.
gov.uk/employment-app…
#ukemplaw

2/ In this case, B had been an admin assistant for 12 years. She was disabled as a result of chronic migraines & anxiety. She considered this to be exacerbated by a colleague & fell out with management due to how they failed to deal with the issue.

3/ After some time, B went off sick. She remained off work for the last 11 months of employment save a 6-week period of a work trial elsewhere. She'd refused to allow DWP to see OH reports & said she wasn't well enough to attend the capability meetings.

4/ B had refused to come back to her contracted role due to the impact of her relationships with others. Though the work trial didn't succeed, B considered that was largely down to DWP's failure to properly implement relevant processes.

5/ B was dismissed for capability. She brought a s.15 claim (among others). DWP raised 2 legitimate aims in defending this: (i) re protecting scarce public funds; (ii) re reducing strain on other employees as a result of B's absence.

6/ The ET upheld B's s.15 claim, concentrating on procedural failures. It didn't engage with the legitimate aims. The EAT upheld an appeal as the ET had thus failed to carry out the balancing act between DWP's needs & the discriminatory impact on B. The claim was remitted.

7/ In its 2nd judgment, the ET put right that wrong, & reached the same result. It found DWP had led no evidence on either legitimate aim & that neither of them succeeded substantively. The resources referable to the 1st were small. The strain re the 2nd was likewise.

8/ In reaching its conclusion on disproportionality of dismissal, the ET had been swayed to a considerable extent by the problems with the work trial & lack of consideration as an alternative avenue to achieving the legitimate aims & removing the discriminatory impact.

9/ DWP appealed on grounds that it wasn't appropriate for the ET to consider the work trial - it should've limited itself to the contracted role, to which B had said she wouldn't return. Moreover, it was said the ET decision was akin to requiring redeployment as an adjustment.

10/ DWP also complained that the ET had focussed wrongly on process when it was the outcome that was relevant.

The EAT dismissed all grounds of appeal.

11/ On process, whilst outcome should be the focus under s.15(1)(b), that didn't render process irrelevant. It'd be harder to show proportionality without evidence about how the decision-maker thought their actions served the legitimate purpose.

12/ Likewise where there was an absence of evidence that the decision-maker considered other less discriminatory alternatives to dismissal (here the work trial was of relevance, & the reasons the ET found it hadn't been carried out reasonably & the possibility it could've worked)

13/ It was wrong of DWP to claim that the work trial was out of bounds to the ET's consideration as it fell outside of B's contract. It's a potentially non-discriminatory alternative to dismissal, so could clearly be relevant to proportionality.

14/ The EAT also found it wrong to find the ET imposed a duty to redeploy - it did no such thing. In any event, there's no need for a corresponding duty to make a reasonable adjustment before a s.15 claim can succeed.