Discrimination arising from disability: the test for proportionality when assessing justification (Department for Work and Pensions v Boyers)

When deciding whether treatment was justified in a claim of discrimination arising from disability, in assessing proportionality, (i) the procedure by which an employer reaches a decision to dismiss is not irrelevant to the balancing exercise required, (ii) the assessment is not limited by the terms of the contract of employment such as place of work or duties to be performed, and (iii) a dismissal can be disproportionate without there being any corresponding duty to make reasonable adjustments, according to the Employment Appeal Tribunal (EAT).

What are the practical implications of this case?

The issues in this case have now been considered twice by the same employment tribunal (coming to the same conclusion—that the respondent had failed to show that its decision to dismiss the claimant was a proportionate means of achieving the identified aims, on both occasions) and twice by the EAT.

In dismissing a second appeal by the Department for Work and Pensions against the tribunal’s second judgment, the EAT concluded that the second tribunal had properly carried out the balancing exercise required by the Equality Act 2010 and permissibly decided that the claimant’s dismissal was disproportionate.

The second EAT confirmed that the first EAT’s judgment in this case was not authority for the proposition that the procedure by which an employer reaches a decision to dismiss is irrelevant to the balancing exercise required. It is open for a tribunal to weigh in the balance the procedure by which the outcome (the dismissal itself) was achieved. The EAT noted that:

• it will be more difficult for a respondent to show that it acted proportionately when dismissing a disabled employee if, as in this case, it has led no evidence on how its decision-makers thought their actions would serve the legitimate aims relied upon
• it will also be more difficult for a respondent to show that it acted proportionately when dismissing a disabled employee if it has led no evidence on how, as part of the process culminating in dismissal, its decision-makers considered other, less discriminatory, alternatives to dismissal.

The EAT held that this case was a good example of how that failure in process can properly form part of a tribunal’s balancing exercise.

The assessment of proportionality is not limited to the terms of the contract of employment on matters such as place of work and the duties to be performed, according to the EAT, reasoning that:

• if that were the case, it would seriously undermine the protection afforded to disabled people
• contractual terms can themselves be discriminatory in substance or by application, revealing the potential for abuse if such an approach were permissible
• a tribunal must be able to weigh in the balance possible redeployment to a suitable alternative role or undergoing a work trial to assess the possibility of redeployment when assessing the proportionality of an employer’s decision to dismiss a disabled employee
• if suitable alternative work is available somewhere other than the place an employee is contractually obliged to be, there may be a non-discriminatory alternative to dismissal; and an employer’s failure to consider that alternative can properly inform the tribunal’s objective analysis.

The EAT also confirmed that:

• a dismissal can be found to be disproportionate without there being any corresponding duty to make reasonable adjustments.

Case details

• Court: Employment Appeal Tribunal
• Judge: Judge Barry Clarke
• Date: 15 June 2022

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