EAT considers dismissal procedures and proportionality test

Thursday 14th July 2022

In Department for Work and Pensions v Boyers, the EAT held that the procedure leading to dismissal is not irrelevant to the assessment of proportionality in a claim of discrimination arising from disability, provided the ET properly carried out the balancing exercise required, with reference to the employer’s legitimate aims.

Mrs Boyers worked for the DWP as an administrative officer. She suffered from chronic migraines and was considered disabled. From February 2017, Mrs Boyers was absent due to stress-related sick leave. Towards the end of 2017, she agreed to return to work in a different role at a different location, where she completed a 6-week trial period. The DWP considered this trial to have been unsuccessful and required Ms Boyers to return to her usual office. Mrs Boyers felt unable to do so and remained on sick leave. She was dismissed in January 2018. Mrs Boyers brought several complaints, including discrimination arising from her disability.

The ET found that the DWP’s decision to dismiss was not a proportionate response in achieving its legitimate aims. The DWP appealed and the first EAT decision held that the ET had wrongly focused on the procedure leading to the decision to dismiss without properly examining whether the outcome itself was justified.

The case was remitted to the original ET which was asked to assess whether dismissal was proportionate to the DWP’s legitimate aims of protecting scarce public resources and reducing the strain on other employees. The ET held again that Mrs Boyer’s dismissal was disproportionate and therefore discriminatory.

The EAT dismissed the DWP’s further appeal, holding that the ET had properly carried out the required balancing exercise. A proper evaluation of the trial period might have avoided dismissal and it was not necessary to dismiss Mrs Boyer to achieve the DWP’s aims. As long as the ET remained focused on the question of whether the outcome of the decision-making process was capable of justification, the procedure leading to the decision to dismiss may be considered relevant.

The EAT also rejected the DWP’s argument that any assessment of proportionality was constrained by the employment contract, which might, for example, stipulate place of work. The EAT considered this would undermine the protection afforded to disabled people and that redeployment has long been accepted as one of the ways an employer can potentially find a less discriminatory option.

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