Is it Proportionate?

Section 15 of the Equality Act 2010 makes it unlawful to treat a disabled person unfavourably for something that arises in consequence of the person’s disability. The Act itself defines the unlawful treatment in this way:

15 Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if—

(a)A treats B unfavourably because of something arising in consequence of B’s disability, and

(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

In an employment context what that means is that if an employer treats an employee unfavourably (for example, issue them a warning) because of something that happens because of something linked to disability (for example, being off sick because of a disability related sickness) then the treatment will be unlawful unless the reason for the treatment was for a legitimate aim (for example, maintaining business efficiency) and was a proportionate way of achieving this aim (for example, could it have been achieved in a less onerous way).

In practical terms whether an employer has acted lawfully will in most cases turn on the question of whether the treatment was proportionate.

For an employee and union rep the difficulty of considering a case that they think may be discrimination arising from disability (and in an indirect discrimination complaint too where the same problem exists) is that whether an act is proportionate is not a freestanding one but can only be assessed in reference to the ‘legitimate aim’ it is trying to implement. The difficulty is that employers do not as a rule plead their ‘legitimate aims’ before there is a challenge made, although there may be something recorded in the employer’s policies.

In a non-employment case (this was a housing case) the Supreme Court (Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15) has given what I think is a helpful four step approach to considering whether an employer has acted in a proportionate way and, therefore, help to assess at any early stage whether there is a potential case that the employer has a potential discrimination arising from disability complaint. Akerman is focussed on section 15 claims but I see no reason why this would not apply in respect to other identically worded legislation (such as indirect discrimination complaints with the caveat that in an ID claim the reference is the disadvantage not to the claimant directly but the ‘group’).

Stage One is an assessment of whether the objective which an employer was trying to implement was a “sufficiently important” one to justify limiting an employee’s rights. So if an employer issues improvement warnings to those who are absent for certain levels of sickness in order to maintain effective attendance levels this would probably be sufficiently important to justify the action. If by contrast a warning was given to teach an employee a lesson for stealing the boss’s parking space that morning it is very unlikely there was a need for the objective and so the employer’s case would fall at the first hurdle.

In cases where the treatment is part of the normal part of a formal process identifying the objective is usually straightforward. For example, in a misconduct case it would be to maintain standards of conduct, or something similar. Section 15 claims can be very versatile however and so in some more niche contexts identifying the objective against will be difficult.

One particular issue here, I think, is that when assessing a case we do not jump ahead to the later stages of Akerman (where most cases are won or lost) by simply assuming the objective the employer would rely on actually is the objective. As any experienced union rep will know sometimes formal processes are abused by some managers for ends not envisaged by the formal processes themselves (e.g., taking misconduct action against whistleblowers). If there is anything that points in that type of direction then that itself is an argument in favour of disproportionality aside from the more conventional ‘balancing’ type arguments.

The second stage is that the objective needs to be rationally connected to the treatment. This is really quite common sense. Is what is done reasonably connected with what the employer is trying to do. Issuing a warning or dismissal because of disability related illness is reasonably connected (not necessarily reasonable!) , disclosing to unauthorised colleagues their sickness record and reasons for absence is not.

The third stage is what is in most cases the main battlefield and is where most cases are decided (both before any ET is contemplated and after a claim is made). This stage asks whether the measure was no more than was necessary to accomplish the directive. This stage really asks whether where were alternative ways the aim could have been achieved that were less severe. Was the treatment really necessary?

So, for example, if a HGV driver has his driving licence suspended because of a newly diagnosed disability was it really necessary for his employer to dismiss him? Perhaps, but did it explore other alternatives such as the new office based role that had just opened up? If there were alternatives that were not explored or implemented that were less severe then the treatment is likely to be disproportionate and therefore discriminatory.

The EHRC Code on Employment is helpfully summarises this aspect of the test when it explains, at paragraph 5.21, that if

an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified.

I have found this especially helpful to highlight this feature to employers when they are contemplating issuing a warning (a disappointingly common example is a circumstance when an employer has failed to make adjustments and is then subsequently forced to be absent from work as a result of this failing. Is it really proportionate in these circumstances for an employer to impose a warning on an employee for their lengthy sick absence when that same absence was caused by the employer’s own failings?

As explained, in my experience most cases end here but Akerman added a fourth stage to the test that should be applied when considering proportionality. Even if the objective is necessary and could not be achieved by alternative means this does not mean the treatment is proportionate. At paragraph 28 of Akerman this is explained:

This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them … [quoting Lord Reed in another case] In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure”

Therefore, sometimes, even if everything reasonable has been done by an employer to avoid the unfavourable treatment the gravity of the treatment imposed by still make it disproportionate. I am not aware of any case where this has been the sole reason for a finding that treatment was was disproportionate but it is clear such a finding is possible.

Most tribunals will not follow Akerman in the sequential way given here but, I think, when determining whether an employer would be able to justify the treatment they have imposed (or propose) may have a viable taken time out in advance to consider each issue (as well as one can) is a productive way to assess whether there are good arguments to challenge an employer on whether they acted proportionately in how they treated a disabled person and, therefore, lawfully.


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