Flawed ‘return to work’ trial discriminatory, rules EAT

Managing long term absence is challenging at the best of times and sometimes dismissal is necessary and may be justified. However, the EAT has just handed down a ruling that demonstrates that the process and employer follows is highly relevant to the question of whether that decision amounts to disability discrimination. 

This is the case of the Department for Work and Pensions v Boyers and shows the importance of employers trialling possible alternative roles for an employee as part of an absence management process. In this case, the employer’s failure to give the employee a reasonable trial in a role at a different location before dismissing her amounted to discrimination arising from disability under section 15 of the Equality Act.

The fact briefly. Susan Boyers had worked for the DWP for more than 10 years based in Middlesbrough and was on long-term sickness absence because of work-related stress. She suffered from migraines, depression, and panic attacks which she claimed arose from bullying and harassment by a colleague and a subsequent lack of support from management. She brought claims of, among other things, for unfair dismissal and discrimination arising from disability under section 15 of the Equality Act.

During her sickness absence she made it clear she didn’t want to return to the Middlesbrough office and so she was offered a trial relocation to another office. That arrangement ran for around six weeks, initially on a phased return basis, but then her manager decided that the trial had been unsuccessful and told her to return to work at her original location. Once again, she took sick leave and was ultimately dismissed which her employer considered to be justified in the circumstances. 

She brought a claim and the employment tribunal found in her favour. They ruled that her dismissal was unfavourable treatment because of something arising from a disability - namely, her absence - and that the employer had failed to justify it. On appeal the EAT accepted that the employer had potentially legitimate aims for the employee’s dismissal, such as protecting public funds and resources and reducing the strain on other employees caused by her absence, however they had failed to properly evaluate whether the trial had been successful which meant the employer could not show that dismissal was a proportionate means of achieving a legitimate aim. Accordingly, the section 15 disability claim succeeded. 

So, what can employers take from this case? Anthony Convery has been looking through the judgment and earlier he joined me by phone from the Glasgow office:

Anthony Convery: “This case emphasises the importance of process when dealing with these dismissals for ill health capability. Capability dismissals will often be potentially indirectly discriminative and that means that in defending tribunal claims employers have to show that they have objective justification. In other words, that in dismissing the employee that they have a legitimate aim and that they've acted proportionately. The issue for the employer here was proportionality. In other words, showing that the employer had exhausted other possibilities short of dismissal. The employer did some things right, it put in place a six-week trial in another role at a different location, but it fell down on process because there was no structured feedback during the trial, there were IT issues and then when the dismissing manager came to look at the matter, she didn't test whether or not the trial had been properly set up. All of this led the Tribunal to conclude that the employer hadn't given the employee a decent shot at trialling the new role and, if they had, dismissal might have been avoided. So, the key point is really just to make sure that in an ill health capability case alternative roles are properly considered, and, in some cases, that might mean carrying out a trial and that trial has to be a well-documented, well supported and an effective trial.”

Joe Glavina: “The employer fell down in this case because they couldn't demonstrate proportionality as far as the trial was concerned. What could they have done differently?”

Anthony Convery: “I think the key thing is to have the support in place. That means having regular catch ups with the employee during the trial period. If it's a short trial, that should be at least weekly. Those catch up should be documented and there should be some objective-setting within that trial period as well as identifying what is everyone looking to achieve out of the trial, and regularly reviewing the employee’s progress against those objectives or those measures.” 

Joe Glavina: “The legal test in these cases centres on objective justification which is a tricky concept but nonetheless one that managers need to be aware of and understand?” 

Anthony Convery: “Absolutely, and I think training is crucial to that. Managers carrying out capability assessments and making a decision as to whether or not there should be a dismissal on the grounds of ill health capability, they need to know all the steps that they need to go through and they need to understand it's more than just a tick box exercise. It’s more than just looking at whether this individual can do current role and so I think it is absolutely crucial that managers understand the wider picture, that they know the importance of looking at the possibility of alternative roles. In this case it would have helped if the manager who ultimately dismissed, if they had looked into the trial itself and checked if it had been an effective trial. So that's definitely something that I think should be brought out and emphasised to managers and training would certainly be something which would help managers feel better equipped to do that.”

Joe Glavina: “Final thoughts on this case Anthony?” 

Anthony Convery: “I think a point that really jumped out at me when I first looked at this case was that the employer, as I mentioned, did do some things right in this case. They did carry out a trial and that's a positive thing and it’s probably quite rare because very often assessment of alternative employment wouldn't involve a trial or trial because the employer will be able to know just from looking at the role, and in consultation with the employee, that it's perhaps not a suitable alternative role. But in this case, they did carry out a trial and I think there are two points to bear in mind really. One, this case illustrates that sometimes it will be necessary to do a trial or to reach a proper assessment as to whether or not the role is suitable and then secondly, if you do carry out a trial, you need to make sure that it is a proper and effective trial, well-documented and the employee is given the appropriate support during the trial.”

That case is a decision of the Employment Appeal Tribunal called Department of Work and Pensions v Boyers. We have put a link to the judgment in the transcript of this programme.

LINKS
- Link to judgment: Department of Work and Pensions v Boyers