The EAT has held that in considering the justification defence under s.15 Equality Act, it is the outcome of the decision-making process – for example dismissal – that must be justified rather than the process itself. However this does not mean the employer’s procedure is irrelevant.
In Department of Work and Pensions v Boyers (gov.uk) the claimant, an administrative officer, was disabled with migraine and mental health issues. She alleged a colleague X was bullying and harassing her, and felt unsupported by managers. After complaining about how she was treated by a manager assisting her with a benefits customer who claimed to be suicidal, she went off sick with ‘work-related stress’. She had a 6-week trial at a different Job Centre which the employer considered to be unsuccessful. She went off work again, unwilling to return to her original office, and was eventually dismissed.
The employment tribunal decision that she had been unfairly dismissed was upheld by the EAT in 2020. For example, the way the work trial was conducted was unsatisfactory and the DWP had not said why they considered it unsuccessful, and the DWP had failed to consult adequately with the claimant, or to take reasonable steps to inform itself of the true medical position before dismissing her (she had said her GP could provide a report).
There has now been a second EAT decision in 2022, upholding the (second) tribunal decision that her dismissal was not justified under s.15 EqA. So her s.15 claim has succeeded. As the first EAT decision had said, it is the outcome of the decision-making process (in this case, dismissal) that must be justified under s.15, rather than the process itself. However this did not mean the employer’s procedure was irrelevant. In this case for example, without properly evaluating the work trial, to decide whether it was genuinely successful or not, the employer was unable to show that dismissal was appropriate and reasonably necessary to achieving its aims, when balanced against the impact on the claimant.