Justifying discrimination

The case of Buchanan v Commissioner of Police of the Metropolis dealt with a claim for discrimination arising from disability.  The Employment Appeal Tribunal decided that, on the facts of the case, it was not enough for the employer to show that an internal policy was justified, it had to show its application of the policy to the Claimant was justified.

Law
Under section 15 Equality Act 2010, an employer discriminates against an employee if they treat that employee unfavourably as a result of something arising in consequence of the employee’s disability and they cannot show that the treatment was a proportionate means of achieving a legitimate aim.

Facts
The Claimant, Mr Buchanan, was a serving police officer who became disabled as a result of a serious accident in the line of duty.  He never returned to work and the Respondent placed him on its ‘Unsatisfactory Performance Procedure’ (UPP).  The UPP was based on a specific statutory regime applicable to police officers.

In the Claimant’s case, the Respondent applied the UPP very prescriptively and without consideration for the effects of his disability.  For example, dates were set for his return to work which were in accordance with the UPP but that the Respondent knew the Claimant would not be able to meet.  The Claimant was extremely distressed by this and brought a claim for discrimination arising from disability.

The Employment Tribunal (ET) dismissed his claim.  It said that although the Respondent had treated the Claimant unfavourably, that treatment was justified as a proportionate means of achieving a legitimate aim.  The ET decided that it was the underlying policy itself that had to be justified, rather than the way in which the policy had been applied to the Claimant.

The Claimant appealed to the Employment Appeal Tribunal (EAT).

Decision
The EAT upheld Claimant’s appeal and said that the ET’s reasoning was incorrect.  Neither the UPP itself nor the underlying statutory regime on which it was based mandated the approach taken by the Respondent in dealing with the Claimant’s absence.  There was room for discretion in how the procedure was applied in each individual case and this meant that the ET should have considered whether each individual step taken under the policy was a proportionate means of achieving the legitimate aim identified.  The EAT contrasted this position with previous cases on justification which had considered the imposition of a mandatory rule, for example a fixed retirement age.  In such cases, it will be the policy that has to be justified but, where there is room for discretion, each individual action should be scrutinised.

This, said the EAT, was also in keeping with the purposes of the law relating to disability discrimination.

Comment
This case is a reminder to employers always to bear in mind the circumstances of a particular case before applying internal policies.

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Kerry Garcia

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