The Employment Appeal Tribunal recently considered whether the dismissal of a long-standing employee for long-term absence was proportionate or whether it amounted to disability discrimination.

Department for Work and Pensions v Boyers

Boyers worked for the DWP for over 11 years at the time that she was signed off as unfit for work with work-related stress in February 2017. She had a complex history. This included suffering from migraines which meant she was likely to satisfy the definition of disability for the purposes of the Equality Act 2010 and issues with bullying and harassment at work. The DWP sought to address her sickness absence by following a sickness absence process.

During this process, Boyers raised a grievance against her various line managers over the years and how they had managed issues of bullying, stress and illness. The grievance was investigated and rejected. Boyers appealed. Before her appeal was determined, Boyers had a six week work trial at an alternative workplace, but it was unsuccessful, so Boyers had to return to her original workplace. She remained on sick leave until she was dismissed because:

  • her return in the near future was not foreseeable
  • the work trial had not been successful
  • she was unwilling to return to her original place of work.

Boyers did not appeal this decision. Following her dismissal, her grievance appeal was rejected.

Claims for Unfair Dismissal and Discrimination

Boyers later brought claims for unfair dismissal and discrimination arising from disability. In respect of the discrimination claim, the Employment Tribunal (ET) accepted that the DWP was seeking to achieve legitimate aims in dismissing Boyers whilst she was absent, namely protecting scarce public funds and resources and reducing strain on other employees. However, the ET held that dismissal was not proportionate and identified a number of procedural failings leading to this conclusion, including that:

  • the DWP did not have up-to-date medical evidence in respect of Boyers at the time of the decision
  • Boyers' absence had been managed by line managers against whom she had raised a grievance
  • the work trial had not been carried out reasonably in particular in relation to feedback, IT equipment and training
  • no other work trials had been considered
  • HR had advised giving consideration to whether the work trial was sufficient and included proper adjustments
  • no consideration had been given to Boyers' disability
  • the DWP had failed to follow its own policy
  • the dismissal decision was taken before the grievance appeal outcome was reached

The DWP appealed to the Employment Appeal Tribunal (EAT), arguing that the ET focussed on the process followed by the DWP, rather than weighing up the legitimate aims it was pursuing against the discriminatory effect on Boyers.

Result of the Appeal

The appeal was upheld. The EAT considered that the ET was required to weigh the real needs of the DWP against the discriminatory effect of the proposal and concluded that the ET had failed to do this. There was no evidence that the ET discussed or considered the proportionality of dismissal in the context of the DWP's aims. The case has therefore been remitted back to the same ET for this to be addressed.

What Can You Learn from This Case?

Although the proportionality of dismissal in this case remains to be determined, the case is still a useful reminder to employers:

  • to ensure that their policies are taken into account and followed
  • to ensure that grievances are dealt with promptly and objectively, and are generally concluded prior to related dismissal decisions being made
  • to ensure that up-to-date medical evidence is obtained before any decision to dismiss is made

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.