Case law: Discretionary powers in employment processes must be exercised so steps taken do not discriminate against disabled employees
Employers with an employment process or policy allowing managers a discretion as to the steps to be taken under it, should make sure that the fact an employee is disabled (or otherwise protected by discrimination law) is taken into account when such discretion is exercised. If they don't, they risk having to justify each step to the Employment Tribunal.
This update was published in Legal Alert - November 2016
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An employee developed post-traumatic stress disorder following a work accident. It was acknowledged that he was disabled. He was off work for many months.
His employer operated a process – the Unsatisfactory Performance Process (UPP) – which required managers to serve notices on employees before the employer could make final decisions on their future employment. Notices had to be given at the beginning of each stage of the process, for example, to require an employee to attend a hearing, and improvement notices had to be given at the end of each stage. The improvement notices had to identify the improvement which was expected, and the date by which it was expected.
The UPP was designed for general use, and not specifically for disabled employees but, crucially, it did allow managers discretion to vary the steps in the process to accommodate different situations.
The notices were duly served on the employee simply to go through the process, even though the employer knew the employee was not going to return to work because he was seriously ill.
The notices caused distress to the employee because of his condition. He claimed disability discrimination. It is direct disability discrimination if an employer treats an employee with a disability less favourably:
- because of something arising in consequence of the employee's disability; and
- the employer:
- cannot show that the treatment is a proportionate means of achieving a legitimate aim;
- knows, or could reasonably be expected to know, that the disabled person has a disability.
In this case, the employee argued that the steps in the UPP amounted to unfavourable treatment because of something arising from his disability. The Employment Tribunal (ET) ruled that the UPP could be justified as a proportionate means of achieving a legitimate aim, so there was no disability discrimination.
The Employment Appeal Tribunal (EAT) disagreed with the ET's approach. It said that the ET's reasoning would have been correct (that the UPP would need to be justified) if there had been no discretion within the UPP allowing the employer to vary the steps taken in the case of a disabled employee.
However, the UPP did allow a discretion in the way the UPP could be applied. This meant different employees, including disabled employees, might receive different treatment. In such cases it was the treatment of the individual disabled employee – and each of the steps taken - which had to be justified, rather than the policy as a whole.
The EAT said "the various steps which the [employee] criticised were not mandated by the [UPP]. It is therefore impossible to assess whether such a step was a proportionate means of achieving a legitimate aim simply by asking whether the [UPP] was justified. The ET was required … to look at the treatment itself and ask whether the treatment was proportionate".
The EAT found that while the UPP could usually be made to work in the case of a disabled employee, "it is obvious that if the question of disability is not carefully addressed by management with disability training the UPP may operate harshly without the allowances and adjustments which are required by the [law]". Unfortunately for the employer, the EAT found that "on any view there was an astonishing lack of attention to the issue of disability in the period with which this appeal is concerned".
Its view was that "what is really required, for an informed decision to be taken in a case of long-term absence through disability, is a process which requires medical evidence as to whether there is any prospect of the [employee] returning to work and in what capacity; and consultation with the [employee] about the options, including alternative work, medical discharge and termination".
The EAT therefore remitted the case to the ET for reconsideration.
- Employers with an employment process or policy allowing its managers discretion as to the steps to be taken under it should make sure that the fact an employee is disabled (or otherwise protected by discrimination law) is taken into account when any such discretion is exercised, or risk having to justify each step to the Employment Tribunal
Case ref: Buchanan v The Commissioner of Police of The Metropolis  UKEAT 0112_16_3009
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