Disability discrimination at work – proportionate means of achieving a legitimate aim?

An employer is legally entitled to disability discrimination at work against an employee if it can show that in doing so there was a “proportionate means of achieving a legitimate aim,” as per section 15 of the Equality Act 2010  (“EqA”). 

The Employment Appeal Tribunal (“EAT”) has recently sent a claim back to the Employment Tribunal (“ET”) in Gray v University of Portsmouth to be reconsidered.  The Claimant lost in the ET and appealed.  The EAT decided that the original ET had failed to set out its reasoning in respect of the objective justification test of whether the treatment was a proportionate means of achieving a legitimate aim.

Mr Gray was employed as a Service Delivery Analyst from 2009. After a two year period of absence related to his disability (stress combined with a diagnosis of autism), he was dismissed in 2017.

Mr Gray brought claims of employment disability discrimination at work under sections 15, 20 and 21 EqA. He specifically claimed that the University treated him unfavourably by initiating a formal meeting, stopping his sick pay, dismissing him, and rejecting his appeal against his dismissal. The University argued that its decision to dismiss was a proportionate means of achieving the legitimate aim of ensuring the efficient running of the department, as part of the overall provision of services to students. The ET agreed.

Mr Gray appealed the decision on the grounds that the ET’s judgment failed to demonstrate that it carried out the necessary critical evaluation that Mr Gray’s dismissal was a proportionate means of achieving a legitimate aim. The EAT agreed and stated that the ET was required to demonstrate that it had carried out the necessary critical evaluation and, even if it had, what it failed to do was set out its reasoning within its judgment. In particular, there was no finding as to the level of need for Mr Gray’s role; or about the impact of his absence; nor an analysis of the evidence provided by the Respondent with explanations for why Mr Gray’s dismissal was proportionate. The EAT also noted that it was also unclear if and how the ET had weighed up the needs of the Respondent against the discriminatory effect of the dismissal on Mr Gray.  

The case has been remitted back to the ET (not necessarily the same one) for it to reconsider its findings regarding the test in section 15 by carrying out the critical evaluation of the evidence and providing a judgment to reflect such an analysis.

You can read the full judgment here.

This case update was written by Jo Sinclair, Solicitor at didlaw.