The Employment Appeal Tribunal (EAT) has held in Department for Work and Pensions v Boyers that an employment tribunal had not erred in finding that an employee's dismissal was discrimination arising from disability.
The dismissal could not be justified as a proportionate means of achieving a legitimate aim when the employer had failed to properly evaluate a trial the employee had completed in a different role in a different location which might have avoided her dismissal.
Mrs Boyers worked for the DWP as an administrative officer. It was established that she was disabled because she suffered from recurrent migraines. At the end of 2013 she started having issues with a colleague (who she claimed was bullying and harassing her), and believed that these issues led to a stress-induced increase in the frequency of her migraines. During 2015 and 2016 Mrs Boyers made requests to move to a different team on a different floor. These requests were refused and in July 2016 she broke down and sobbed at work, following which an immediate move to a different floor was arranged and a stress reduction plan was put in place. From February 2017, Mrs Boyers was absent from work with work-related stress. She submitted a grievance about the way her managers had dealt with her health problems, stress and bullying complaint and, following an investigation, her grievance was rejected. Towards the end of 2017 she stated that she was willing to return to work, but not at the Middlesborough office. She had a six-week trial at an alternative location which the DWP decided had not been a success and instructed her to return to Middlesborough. There had been no weekly feedback sessions during the trial and only limited training, and there was no contemporaneous paperwork relating to the trial.
Mrs Boyers felt unable to return and remained on sick leave. She was eventually dismissed by reason of capability and brought various complaints, including a compliant for discrimination arising from disability.
The tribunal upheld Mrs Boyer's complaint, holding that the DWP's dismissal was not a proportionate response. The EAT disagreed holding that the tribunal had erred in focusing on the DWP's decision-making process leading to dismissal without properly examining whether the outcome itself was justified and remitted it to the same tribunal. The tribunal reached the same conclusion that the dismissal was disproportionate which was then, again, appealed to the EAT.
The EAT dismissed the appeal holding that Mrs Boyers' dismissal was disproportionate because the DWP had failed to properly evaluate the trial she had completed at a different office which might have avoided her dismissal. If suitable alternative work is available somewhere other than the place the employee is contractually obliged to be, there may be a less discriminatory alternative to dismissal. The EAT also concluded that it will be more difficult for an employer to show that it has acted proportionately when dismissing a disabled employee if, as in Mrs Boyers' case, it leads no evidence on how its decision-makers thought their actions would serve the legitimate aims being relied on.
Take note: The decision in Boyers shows that it will be difficult for an employer to show that it has acted proportionately when deciding to dismiss a disabled employee if it does not consider less discriminatory alternatives to dismissal. Here, a trial at an alternative office had taken place but the employer had failed to properly evaluate its success before deciding to dismiss the claimant.
