EAT on objective justification defence

Tuesday 7th December 2021

In Gray v University of Portsmouth, the EAT held that ETs must carry out a critical evaluation of any objective justification defence raised by a respondent and that it is not sufficient to say that the position is “obvious”.

Mr Gray worked as a Service Delivery Analyst within the University of Portsmouth’s Information Services department from 2009 until he was dismissed in 2017 after a long period of disability related sickness absence. He brought a number of claims including a claim for discrimination arising from a disability under section 15 EqA 2010.

The ET concluded that the dismissal could be objectively justified and was a proportionate means of achieving a legitimate aim, namely ensuring the efficient running of the department as part of the University’s overall provision of services to its students. The ET considered that given the length of Mr Gray’s absence, the disruption caused by continuing to hold his job open was obvious.

The EAT held that to determine whether Mr Gray’s dismissal was objectively justified, the ET was required to show that not only had it undertaken a critical evaluation of the evidence, weighing the needs of the employer against the discriminatory impact on the employee, but how it had done so. The EAT considered this requirement mitigates the risk of accepting the employer’s stated reasons without proper scrutiny.

While the ET referred to the position as being “obvious”, this was not evident from the ET’s reasoning. There were no findings regarding what was required to ensure the effective running of the department or about the nature of Mr Gray’s role or the impact of his absence. Additionally, the evidence provided by the University advanced differing potential explanations as to why Mr Gray’s dismissal was proportionate, but the ET failed to make clear which it had accepted. It was also unclear if the ET had weighed the needs of the University against the discriminatory effect of the dismissal and the EAT felt this made the ET’s decision unsafe. The case was remitted back to the same ET.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.