Try – discrimination in dismissal in poor health when the alternative role is not tested properly | Hogan Lovels

Dismissal of an employee due to long-term absence due to illness may be discrimination resulting from disability if the employer cannot prove that the dismissal is objectively justified. The recent UK EAT decision in the Department for Work and Pensions v Boyers shows how important it is to try possible alternative roles for an employee as part of the absence management process. The employer’s failure to give the employee a reasonable test in a different role before dismissing her meant that her claim for discrimination on the basis of disability had been successful.

Managing an employee who has had long-term absences from work for health reasons is a challenge for many employers. The EAT decision in Department of Labor and Pensions v. Boyers demonstrates that the processes that employers adopt are relevant to claims of discrimination against people with disabilities.

What happened

Ms. Boyers was disabled under the Equality Act because she suffered from migraines, depression, work-related stress, and panic attacks. Her mental state arose from what she considered harassment and harassment by a colleague, followed by a lack of support from management and led to her absence from work for almost a year.

Although she did not want to return to work from her original job, she was willing to try to return to work elsewhere. The new arrangements were tested for approximately six weeks, initially on a phased return basis, but Ms Boyers’ managers decided the test had failed and told her to return to work. She was again listed as ill and was eventually fired. The labor tribunal found that her dismissal was unfavorable treatment due to something resulting from disability (her absence) and that the employer could not justify it, so her claim for discrimination on the grounds of disability was upheld.

The appeal

The employer unsuccessfully appealed to the EAT. The EAT acknowledged that the employer had potentially legitimate goals for dismissing the employee, such as protecting public funds and resources and reducing the pressure on other employees caused by her absence. However, dismissal was not a proportionate means of achieving these goals.

The tribunal had the right to take into account the process that led to the dismissal when considering proportionality. He identified several factors that meant that work experience was not reasonable. The employer did not provide weekly feedback as promised, he withdrew the trial period without notice and had problems with IT equipment and training. Without a proper assessment of whether the process has been successful, the employer cannot show that dismissal is a proportionate means of achieving a legitimate aim, especially given the serious consequences for the employee. If a reasonable labor test was conducted and properly assessed, it was possible for Ms. Boyers to stay at work.

next steps

The employer’s approach to Ms Boyers’ case did not seem to be particularly holistic. The dismissal manager acknowledged that he did not consider it his role to assess whether the workflow arrangements were reasonable or properly implemented. She did not consider whether a further job test was possible and focused only on the fact that the employee could not return to work under a contract. In these circumstances, it was impossible for the employer to prove that the dismissal was a proportionate means of achieving a legitimate aim, despite the employee’s prolonged absence from work.

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