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Proportionality of disability-related dismissal requires balancing exercise

Makbool Javaid, Partner - Simons Muirhead & Burton

The EAT’s decision in Department of Work and Pensions v Boyers is a reminder of how the law applies to objective justification in S.15 of the Equality Act 2010 claims where it is established that an employee was treated unfavourably because of something arising in consequence of his or her disability. B is disabled and was dismissed when there was no foreseeable date for a return to work in the near future during a disability-related absence. The ET found that B had been unfavourably treated arising in consequence of her disability. The ET accepted that the DWP had two legitimate aims: protecting scarce public funds/resources and reducing the strain on other employees caused by B’s absence. However, the dismissal was not justified because it was not a proportionate means of achieving either aim, because of the way DWP had conducted the decision-making process leading to the dismissal. The EAT upheld DWP’s appeal.  The ET fell into error in basing its analysis of proportionality on the actions and thought-processes of DWP’s managers, rather than on a balancing of DWP’s needs, in the context of the accepted legitimate aims which had lead to the dismissal, and the discriminatory impact and then determining whether employer’s needs outweigh the discriminatory effect.

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