Thu 30 Mar 2023

A balancing act - justifying discrimination

Successfully defending a discrimination claim may come down to whether the discriminatory act was justified - where does that balance lie?

In legal terminology an act of discrimination may be justified where it is a proportionate means of achieving a legitimate aim.  But what does that mean in practice?  Unhelpfully it will mean different things in different cases.  However, that doesn’t make it impossible to identify or prepare for.  The recent case of McAllister v HMRC is a useful example of where an apparently discriminatory act was justified. 

The claimant was an administrative officer who had been employed for around 7½ years by the time of his dismissal.  He suffered from depression and anxiety and was a disabled person entitled to protection from discrimination under the Equality Act 2010.  He was dismissed for a reason arising from his disability - his lengthy absences.  By the time of his dismissal his employer had made all reasonable adjustments and considered the absences were impacting productivity and staff morale.   He received a payment under the Civil Service Compensation Scheme ("CSCS") which was reduced because of his disruptive behaviour.

An employment tribunal found the dismissal was for a reason arising in consequence of his disability but that in the circumstances the discriminatory effect of the dismissal on the claimant was justified. The employer argued (and importantly was able to demonstrate) that its legitimate aims were maintenance of a fair, effective and transparent sickness absence policy and efficient use of resources.  The detriment to HMRC included the management time involved in dealing with the absence and the impact on morale and productivity.  When this detriment to the employer was balanced against the discriminatory impact of the dismissal on the claimant, the balance came out in favour of the employer. 

When the claimant appealed to the Employment Appeal Tribunal ("EAT") he was unsuccessful. 

Finding the right balance

Often it is when the issue of proportionality arises that justification defences can seem to become complicated.  Proportionality - essentially finding the correct balance - is, of course, somewhat subjective.  So how can an employer increase their chances of the balance coming down in their favour?

The first thing to remember is that proportionality is judged against legitimate aims.  Although case law on this issue confirms it is not necessary for an employer to have consciously considered the legitimate aim when deciding on the discriminatory act that is later complained of, it will assist at the point of tribunal if those aims are easily identifiable.  The employer will also have to show that the action taken - in this case the dismissal - actually contributes to the pursuit of those aims.  While no one wants to end up defending a tribunal claim, in the case of absence management policies where the risk of claims - and specifically disability discrimination claims - is clear, preparatory steps can be taken.  These steps then ease the evidential burden on the employer when establishing the legitimate aims they want to rely on in tribunal. 

Employers may want to set out in the introduction to their absence policy what the aim of the policy is - this is likely to be something along the lines of ensuring good attendance is maintained - and why that aim corresponds to a real need of the employer.  The engine of most businesses is their workforce, so that explanation should not be too difficult.  In the McAllister case the tribunal accepted maintenance of a fair, effective and transparent sickness policy as a legitimate aim, along with efficient use of resources.  It is, of course, good practice to review policies on a regular basis and these aims should be included in that review to ensure they remain relevant. 

In order to show that its actions were proportionate an employer needs to show they were an appropriate way of achieving the legitimate aim and were "reasonably necessary". This is where things can start to become a bit less straightforward.  While the employer doesn't need to show that there was no alternative to the action taken, there must not be a less discriminatory way of achieving the legitimate aim.  In the context of absence management there will be a degree of cross over with reasonable adjustments.  If all reasonable adjustments have not been taken (perhaps by changing working hours, duties or location) then demonstrating the aim could not be achieved in a less discriminatory way will be very difficult.

The detrimental impact on an employee of being dismissed is clear and only in the most exceptional of circumstances would there be no significant impact on the employee.  However, this case will bring comfort to employers that when decisions to dismiss, in circumstances of ill-health where there is a disability, are properly thought through - and in particular are not carried out simply in a box ticking procedural way without due consideration - the balancing exercise required can come out in their favour.

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