The EAT has held that in considering the justification defence under s.15 Equality Act, the employment tribunal should look at the outcome rather than focusing on faults in the employer’s decision-making process.
In Department of Work and Pensions v Boyers (www.bailii.org) 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. 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).
However the EAT overturned the employment tribunal’s decision that the employer had failed to show justification of the dismissal under s.15 EqA. The EAT sent the issue of justification back to the tribunal to reconsider. The EAT said the tribunal ‘fell into error in basing its analysis of proportionality on the actions and thought-processes of the [employer’s] managers’. It was the outcome that had to be justified, not the process by which the outcome was reached.
Even so, it is suggested that following proper steps such as consulting with the worker, obtaining medical reports, and properly conducting trial periods where appropriate remains important under the Equality Act. Otherwise an employer may have difficulty showing that its action was justified under s.15.