Try it out - ill health dismissal discrimination when alternative role not properly trialled

Dismissing an employee for long term sickness absence could be discrimination arising from a disability if an employer cannot show that the dismissal is objectively justified. The recent UK EAT decision in Department for Work and Pensions v Boyers shows the importance of trialling possible alternative roles for an employee as part of an absence management process. An employer’s failure to give an employee a reasonable trial in a role at a different location before dismissing her meant that her disability discrimination claim succeeded.

Managing an employee who has had long term absences from work on health grounds is challenging for many employers. The EAT decision in Department for Work and Pensions v Boyers demonstrates that the processes employers adopt are relevant to disability discrimination claims.

What happened

Mrs Boyers was disabled under the Equality Act because she suffered from migraines, depression, work-related stress and panic attacks. Her mental health conditions arose from what she considered bullying and harassment by a colleague and a subsequent lack of support from management and led to her being absent from work for almost a year.

Although she did not want to return to work at her original workplace, she was willing to attempt a return to work at a different location. New arrangements were trialled for approximately six weeks, initially on a phased return basis, but Mrs Boyers’ managers decided that the trial had been unsuccessful and told her to return to work at her original location. She was again signed off sick and was ultimately dismissed. The employment tribunal found that her dismissal was unfavourable treatment because of something arising from a disability (her absence) and that the employer could not justify it, so her disability discrimination claim succeeded.

The appeal

The employer unsuccessfully appealed to the EAT. The EAT accepted that the employer had potentially legitimate aims for the employee’s dismissal, such as protecting public funds and resources and reducing the strain on other employees caused by her absence. However, the dismissal was not a proportionate means of achieving those aims. 

The tribunal was entitled to take the process that led to the dismissal into account when considering proportionality. It had identified several factors that meant that the work trial was not reasonable. The employer did not provide weekly feedback as promised, it withdrew the trial without notice and there had been problems with IT equipment and training. Without a proper evaluation of whether the trial had been successful, the employer could not show that dismissal was a proportionate means of achieving a legitimate aim, especially given the serious consequences for the employee. If a reasonable work trial had been conducted and properly evaluated, it was possible that Mrs Boyers could have remained in employment.

Next steps

It appears that the employer’s approach to Mrs Boyers’ case was not particularly holistic. The dismissing manager admitted that she did not see it as her role to consider whether the arrangements for the work trial were reasonable or carried out appropriately. She did not consider whether a further work trial might have been possible and focused solely on the fact that the employee was not able to return to her contractual workplace. In those circumstances it was impossible for the employer to demonstrate that dismissal was a proportionate means of achieving a legitimate aim, despite the employee’s lengthy absence from work.



Authored by Jo Broadbent and Stefan Martin.


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