Balancing exercise needed when considering discrimination arising from disability

10th July 2020

A recent Employment Appeal Tribunal (EAT) decision in the case of the Department of Work and Pensions v Boyers established that although a dismissal may be unfair under the Employment Rights Act 1996 (ERA), this does not necessarily mean that it will also be disproportionate under section 15(1)(b) Equality Act 2010 (the Act). We examine discrimination arising from disability and what you need to take into account.

The case concerned an employee who was disabled within the meaning of the Act and who was dismissed by her employer whilst on long-term sickness absence.

Background to the case

Mrs Boyers commenced work for Department of Work and Pensions (DWP) in 2005 where her role involved taking calls from customers who received benefits and dealing with any issues that arose. In 2013, she was referred to DWP’s occupational health service due to migraines which she had suffered with for the previous four years. As a result of this report, it was established that Mrs Boyers met the definition of disability under the Act.

Mrs Boyers later experienced some issues with another employee, claiming that she had been bullied and harassed, and later made a complaint about the treatment she had received by a manager.

In February 2017, she was ruled unfit for work due to work-related stress. She remained on sick leave until her dismissal in January 2018, save for a six week work trial at another DWP location. Mrs Boyers was dismissed on the grounds that there was no foreseeable return to work in the near future, the trial had been unsuccessful and she had refused to return to her usual work location.

Employment tribunal

Mrs Boyers brought claims for unfair dismissal and discrimination arising from disability under section 15 of the Act.

The Employment Tribunal found that Mrs Boyers had been unfairly dismissed. Although the dismissal was for a potentially fair reason, namely capability, the decision to dismiss was not reasonable due to a lack of consultation with Mrs Boyers whilst she was on sick leave in the period between 2017 and 2018 and also DWP’s failure to take reasonable steps to establish the true medical position before making the decision to dismiss.

There was no dispute that Mrs Boyers met the required definition of disability or that the dismissal amounted to unfavourable treatment arising from her disability. The key issue was the question of justification and whether the dismissal was a proportionate means of achieving a legitimate aim.

The Employment Tribunal accepted that Mrs Boyers’ dismissal pursued two legitimate aims, being the protection of sparse public resources and also reducing the impact of her absence on other employees. However, it held that the dismissal was not a proportionate means of achieving either of those aims and therefore was not justified.

Employment Appeal Tribunal

DWP appealed on the basis that the Employment Tribunal had erred in law in rejecting its justification defence. It argued that the Employment Tribunal had wrongly focused on its decision making process which had led to the dismissal and not considered its legitimate aims.

The EAT upheld the appeal and remitted the claim under section 15 to the same Employment Tribunal for redetermination. When assessing proportionality, the Employment Tribunal must carry out a balancing exercise between the needs of the employer (the legitimate aims) and the discriminatory effect of the dismissal.

The EAT found that the Employment Tribunal had focused on the process by which DWP had come to dismiss Mrs Boyers and the serious failures of the decision makers.

However, it had failed, after identifying the legitimate aims, to carry out any assessment of the business needs of DWP. As a result, the Employment Tribunal had not objectively evaluated the proportionality of the dismissal.


In assessing proportionality, the unfavourable treatment has to be both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so.

This means balancing  the reasonable needs of the business, by completing a fair and detailed assessment of the employer’s business needs and working practices, against the discriminatory effect of the employer’s actions on the employee. The actions will not be considered reasonably necessary if less discriminatory means could have achieved the same objective.

Each case will turn on its own facts as the question of proportionality is fact-sensitive.

If you need advice on employment tribunals concerning discrimination arising from disability, our employment tribunal specialists can help.

If you need legal advice from anything in this article

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