TUPE and Indirect Discrimination in Anne & Others v Great Ormond Street Hospital
EAT confirms leaving transferred staff on inferior terms can amount to indirect discrimination, even under TUPE.
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Case Study
Mr McAllister commenced employment with HM Revenue and Customs (HMRC) in May 2011. He was employed in an administrative role. Mr McAllister suffered from anxiety and depression and had a high level of sickness absence because of these conditions. Following an absence management procedure, Mr McAllister was dismissed in December 2018, following which he brought employment tribunal claims for discrimination arising from disability under section 15 of the Equality Act 2010 in relation to his dismissal.
In order to bring a successful claim under section 15 of the Equality Act, an employee must show that the employer has treated them “unfavourably” because of “something arising in consequence of the employee’s disability”. The employer has a defence to any such claim if the treatment can be objectively justified, i.e., if they can show that the treatment is a proportionate means of achieving a legitimate aim.
Case Study
The tribunal found that Mr McAllister had been dismissed as a result of his absence records as a consequence of his disability. However, the dismissal was objectively justified because the employer was able to show that its decision to dismiss for long-term sickness absence was a proportionate means of achieving a legitimate aim – that being to maintain a fair, effective and transparent sickness management regime, and the efficient use of resources.
Mr McAllister appealed this decision to the EAT who agreed with the initial judgment stating that the tribunal had made a permissible finding. It was found that the aim of ensuring that staff were capable of meeting attendance expectations was legitimate and supported by a genuine need on the part of HMRC to ensure that Mr McAllister’s absences did not impact on productivity and staff morale.
In reaching its decision, the EAT noted that HMRC had made all possible reasonable adjustments and had balanced the reasonable needs of the employer against the discriminatory effect on Mr McAllister.
It is certainly not uncommon for a claim of disability discrimination to arise out of absence management processes such as dismissal for long-term sickness or persistent absence. Where an employer has provided the employee with considerable support over a long period, made any reasonable adjustments necessary and followed a reasonable process such as in this case, there is a good chance that a dismissal can be objectively justified. However, it is important to bear in mind that every case turns on its individual facts and employers should tread extremely carefully and seek advice when handling these sorts of cases.
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