Discrimination arising from disability and long term sickness: Objective justification under section 15 of the Equality Act 2010
Friday, 11th November 2016
The EAT has given guidance in Buchanan v The Commissioner of Police of the Metropolis UKEAT/0112/16 in relation to the objective justification test under section 15 of the Equality Act 2010 (the "EqA"). The case in question looked at whether, in a claim for discrimination arising from disability, the application of a long-term sickness absence procedure had been objectively justified.
In the first instance the employment tribunal (the "ET") had found that unfavourable treatment in various instances of the application of an absence management process in relation to an employee on long term sickness had occurred. The Employment Appeals Tribunal (the "EAT") held that the objective justification test had to be applied to each individual instances and not the underlying procedure.
Section 15 of the EqA states that "discrimination arising from disability" occurs where both:
- An employer treats an employee unfavourably because of something arising in consequence of the employee's disability
- The employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The second part of the test concerns "objective justification". As to what must be objectively justified, this depends on the type of discrimination:
- In discrimination arising from disability and direct age discrimination it is the employer's treatment of the employee
- In direct discrimination it is the employer's provision, criterion or practice
Mr Buchanan was a police officer suffering from post-traumatic stress disorder ("PTSD") and was on long term sickness absence. He was classified as disabled within the meaning of the EqA. His employer managed this absence following their "Unsatisfactory Performance Procedure" ("UPP"). The UPP was a three-stage process containing detailed provisions about managing absence. If under the process improvement notices were issued they would contain return to work dates. Mr Buchanan's condition prevented him from complying with these conditions. His complaint to the ET was that by being issued with the improvement notices he had been discriminated against on the grounds of his disability. The ET held that his employers, the police force, were only required to justify the UPP generally as opposed to each action taken under it. Mr Buchanan appealed to the EAT.
The EAT allowed the appeal and held that the ET had erred in its application of the law. The UPP contained numerous steps which required a decision by Mr Buchanan's managers and it was these decisions that constituted the "treatment" for the purpose of the EqA. Each decision had to be objectively justified.