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When is a dismissal a proportionate means of achieving a legitimate aim?

The Employment Appeal Tribunal in the case of Ali v Torrosian and Others (t/a Bedford Hill Family Practice) has considered proportionality in a disability discrimination claim.

Background

Dr Ali went on long term sick leave following a heart attack and ongoing heart condition. A medical report stated that he would not be able to return to work on a full time basis but could do so on a part time phased basis. On the expiry of Dr Ali’s last fit note he was dismissed on the grounds of capability.

Dr Ali brought claims for unfair dismissal and disability discrimination.

The Law

Under section 15 of the Equality Act 2010, discrimination arising from disability occurs where an employer treats an employee unfavourably because of something arising in consequence of their disability.

The employer will have a defence if it can show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

To show that the treatment was proportionate, the treatment must be both appropriate and necessary. The tribunal should balance the needs of the business against the discriminatory effect of the employer’s actions and then consider whether a less discriminatory route could reasonably achieve the same aim.

In this case the unfavourable treatment was the dismissal of Dr Ali which arose because he could no longer carry out full time duties due to his disability.

The Practice said that the dismissal was proportionate as its legitimate aim was that they needed to ensure that their patients received the best care possible.

Decision

The tribunal found that the dismissal had been unfair on procedural grounds as the Practice should have considered allowing Dr Ali to return on a part time basis. However, it did not uphold the disability discrimination claim as it found that the dismissal was justified by the Practice’s legitimate aim of ensuring the best care was provided to patients.

The Employment Appeal Tribunal (“EAT”) allowed Dr Ali’s appeal.

The EAT held that when considering whether the dismissal was proportionate the Practice should have considered if Dr Ali returning on a part time basis was a less discriminatory way of achieving its legitimate aim.

The case was remitted to the tribunal reconsider the question of proportionality.

Comment

When considering dismissal on the grounds of ill health capability employers should be seen to consider whether any alternatives to dismissal would be viable to minimise the risk of unfair and discriminatory treatment.

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