In the 2017 case of O’Brien v Bolton St Catherine’s Academy the Court of Appeal considered the question of whether the test of whether a discriminatory dismissal under section 15 of the Equality Act 2010 was necessarily an unfair dismissal.

The key issue was whether the test as to whether a dismissal was “a proportionate means of achieving a legitimate aim” was the same as the test for unfair dismissal in section 98(4) of the Employment Rights Act 1996, what is commonly referred to as he band of reasonable responses test.

In the original Employment Tribunal hearing after having reviewed the processes that led up to dismissal of a disabled employee for reasons relating to her disability the Tribunal declared that:

Any reasonable employer would have conducted the appropriate balancing exercise required of it under s15 Equality Act before reaching the decision to dismiss, before upholding that decision on appeal. Both panels, at the Medical Incapacity Hearing and at the Appeal hearing, failed to carry out that balancing exercise. The respondent was well aware that the claimant was a disabled person within the meaning of the Act. In all the circumstances we find that dismissal fell outside the band of reasonable responses because it was a discriminatory act

The Tribunal found therefore that “because” the dismissal was discriminatory (and therefore unlawful) it was outside the band of reasonable responses and, therefore, also an unfair dismissal. The fact of the case do, to me, give me pause as to whether the dismissal really was discriminatory and this decision was reversed by the EAT.

What is of interest to me is is the determination by Underhill LJ in paragraphs 53-54:

However the basic point being made by the Tribunal was that its finding that the dismissal of the Appellant was disproportionate for the purpose of section 15 meant also that it was not reasonable for the purpose of section 98 (4) … I accept that the language in which the two tests is expressed is different and that in the public law context a “reasonableness review” may be significantly less stringent than a proportionality assessment (though the nature and extent of the difference remains much debated). But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act.

At issue is the what a Tribunal needs to decide when considering a discrimination and an unfair dismissal case. In Iceland Frozen Foods Ltd v Jones, the seminal case that codified the band of reasonable responses test, two of the five key considerations were that:

  • in applying the section an employment tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
  • in judging the reasonableness of the employer’s conduct an employment tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

The court further observed that

  • in many (though not all) cases there is a “band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

The tribunal therefore is not asked to decide ‘should the employee have been dismissed’ but rather ‘did the employer act reasonably in deciding to dismiss the employee’ and later cases have clarified that the tribunal is prohibited from adopting a substitution mindset (thinking about what decision they would have made), their task is to assess the decision maker’s decision not to make the decision again. Whilst there is an objective decision in play it is only in respect to the findings of fact as to whether the subjective decisions of the dismissal decision maker were ‘reasonable.’  By (apparent) contrast the task in a discrimination claim is to fact decide the issue and make objective decisions. But are the two regimes really different? Underhill LJ continues:

The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately I see no reason why that should be so. On the one hand, it is well established that in an appropriate context a proportionality test can, and should, accommodate a substantial degree of respect for the judgment of the decision-taker as to his reasonable needs (provided he has acted rationally and responsibly), while insisting that the tribunal is responsible for striking the ultimate balance; and I see good reason for such an approach in the case of the employment relationship. On the other, I repeat – what is sometimes insufficiently appreciated – that the need to recognise that there may sometimes be circumstances where both dismissal and “non-dismissal” are reasonable responses does not reduce the task of the tribunal under section 98 (4) to one of “quasi- Wednesbury” review: see the cases referred to in para. 11 above. Thus in this context I very much doubt whether the two tests should lead to different results.

When this judgement was published I worried about the implications since, in practical terms it suggested that the threshold under which a finding of discrimination should be made is the substantially the same as when considering whether a decision was in the range of reasonable responses. The problem with this is that this test is, in my view, more onerous than a balance of probabilities one with the result that it would be harder for a worker to establish that their treatment was discriminatory, especially where there is also a claim of unfair dismissal.

Thankfully, last year in City of York Council v Grosset the Court of Appeal clarified matters somewhat. Commenting on this suggestion that the test for a discriminatory dismissal and an unfair dismissal are the same was rejected:

I think it is clear that Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) EqA and the test for unfair dismissal are the same.

I don’t think it was in any way clear that the comments were just related to “the particular facts of that case” but, nonetheless, the rejection of the proposition that the two tests are the same is a welcome one.