The Employment Appeal Tribunal (EAT) highlights the need for evidence to establish aim and proportionality – without which the defence fails. In Gray v. University of Portsmouth EA-2019-000891-OO, the EAT allowed the Claimant’s appeal against the rejection of his claim for discrimination arising from disability. The EAT held that the Employment Tribunal’s (ET) decision failed to show that it had carried out the necessary analysis of the Respondent’s defence that the Claimant’s dismissal was a proportionate means of achieving a legitimate aim (otherwise known as the objective justification defence).
The Claimant was employed by the Respondent as a Service Delivery Analyst in its Information Service department. The Claimant was diagnosed with high-functioning autism and stress, and was classed as disabled for the purposes of the Equality Act. Following a two-year long period of sickness absence, the Claimant was dismissed on the grounds of ill-health capability after the Respondent had followed its four-stage Sickness Absence Management process. The Claimant’s internal appeal against his dismissal was not upheld. The Claimant brought a claim against the Respondent for discrimination arising from disability.
The ET dismissed the Claimant’s claim, holding that the Claimant’s dismissal was a proportionate means of achieving the legitimate aim of the efficient running of the relevant department. The ET noted that it was “obvious” that keeping the Claimant’s role open would be significantly disruptive to the University and the students.
The Claimant appealed to the EAT. The EAT found that the ET should have critically evaluated the Respondent’s justification for the dismissal and demonstrated in its reasoning that it had done so. The EAT found that there was insufficient reasoning given by the ET to conclude that it was “obvious” that keeping the Claimant’s job open would cause disruption. For example, there were no findings in relation to whether the University had incurred costs due to the Claimant’s absence or whether the absence was in fact causing disruption. When considering the facts and evidence presented to the ET, the EAT found that the Respondent had provided differing explanations as to why the Claimant was dismissed and the aim achieved by the dismissal. The ET could not explain how or why it had reached the decision it had, and it was not clear whether the ET had weighed up the needs of the University against the discriminatory effect of the dismissal on the Claimant. As a result, the EAT sent the case back to the original tribunal to reconsider its decision.
In order to succeed with an objective justification defence, the unfavourable treatment must be a proportionate means of achieving a legitimate aim. Although this judgment focuses on the importance of the ET carrying out the necessary analysis, it serves as a useful reminder to employers to always ensure they have a solid objective justification defence which has been sufficiently reasoned. When considering the dismissal or disciplining of an individual who is disabled, employers should ensure they are clear about the aim they are pursuing, and be able to provide evidence which demonstrates why the treatment is proportionate taking into consideration both the needs of the business and the impact on the individual. All relevant facts and evidence should form part of an employer’s defence to such claims in order to allow the ET to make its assessment. Employers must also be able to show why another, less discriminatory measure could not have achieved the legitimate aim. In this case, for example, it was not clear why the Respondent was unable to appoint a temporary replacement for the Claimant.
As the case is to be returned to the ET, it will be interesting to see if the EAT’s analysis changes the tribunal’s finding.