DWP v Boyers: decision to dismiss disabled employee was not proportionate

The Department for Work and Pensions has been under the spotlight recently in relation to employees and disability rights.

In July 2022, the DWP was in the Employment Appeals Tribunal (EAT) for the case of Ahmed v DWP, which centred around reasonable adjustments. The venue may have felt uncomfortably familiar. Just a month earlier, the DWP brought an appeal in the EAT in the case of DWP v Boyers (for the second time in that case).

The Boyers case serves as a useful reminder of the risks of dismissing an employee for long term sickness absence, and the importance to employers of following a correct procedure leading up to an eventual decision to dismiss. This blog explains more.

The background

Mrs Boyers worked for the Department for Work and Pensions (DWP) from 2005 until her dismissal in early 2018. She suffered from chronic migraines, and she believed that her treatment at work was increasing their frequency. She requested to move desk and / or team on a number of occasions but these requests were refused. She submitted a grievance, which was not upheld. In February 2017, Mrs Boyers went on long term sick leave due to work-related stress.

Mrs Boyers did not feel able to return to her place of work in Middlesbrough, but she did agree to attend a work trial at an office in Eston in September 2017. Six weeks in, the DWP decided to withdraw the trial without notice, concluding that Mrs Boyers would have to return to her original role at the Middlesbrough office.

During the work trial, the DWP failed to provide the weekly feedback sessions it had promised, and there had been limited training and problems with IT. In addition, any record of the trial was completed after the event, rather than contemporaneously.

With the prospect of returning to the Middlesbrough office, Mrs Boyers was declared unfit for work again by her GP. Mrs Boyers was subsequently dismissed in 2018, on the grounds that the trial at Eston had not been a success, and that she was unlikely to return to work at the Middlesbrough office.

The first ET and EAT decisions

Ms Boyers brought claims in the Employment Tribunal (ET) for unfair dismissal and discrimination under section 15 of the Equality Act (where an employee is treated unfavourably because of something arising from disability – in this case, Ms Boyers’ absence). Unlike direct discrimination, discrimination arising from a disability can be justified, if the employer can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim.

The ET accepted Ms Boyers’ was disabled under the Equality Act (due to her chronic migraines and depression) and upheld Mrs Boyers’ claim. The DWP then successfully appealed to the EAT, leading to the case being remitted to the ET to determine the question of proportionality and potential justification of the dismissal. In its defence, the DWP cited two legitimate aims: (1) the protection of public funds and resources and (2) reducing the impact of Mrs Boyers’ absence on other staff members.

The second ET and EAT decisions

On remittal, the ET found that the DWP had failed to properly evidence its purported legitimate aims. In any event, it found the decision to dismiss was disproportionate, bearing in mind the impact on Mrs Boyers; the limited effect that her dismissal had on the cited aims; and the ET’s conclusion that the work trial might have ultimately allowed her to remain in employment if it had been properly followed.

The employer brought a second appeal to the EAT, arguing that the finding was perverse, when it was evident that there was no prospect of Mrs Boyers returning to work at the Middlesbrough office. Further, it argued that the ET’s assessment of proportionality should have been constrained to the strict terms of Mrs Boyers’ contract in respect of her role and place of work (and should not have considered the work trial).

The EAT dismissed both of these arguments. The EAT found that the work trial was not “out of bounds” of the assessment of proportionality. As the work trial was not undertaken properly, the DWP could not prove that it had meaningfully considered alternatives to dismissal, and as such, it could not show that the dismissal was proportionate.

Useful information for employers

This is a useful reminder to employers to carefully consider a decision to dismiss a disabled employee, to assess the legitimate aim(s) it is seeking to achieve and to assess viable alternatives to dismissal.

Clear, contemporaneous records should be taken of these considerations, and decisions should be taken in the context of medical advice, either from the employee’s GP or from occupational health.

DWP v Boyers also serves as a reminder that an employer must take a holistic approach and genuinely explore alternative options before deciding to dismiss a disabled employee, rather than just merely “going through the motions” without due process.

If you require further information about anything covered in this blog, please contact Emily Part, Lise Whelan or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2022