In Ali v Torrosian and others (t/a Bedford Hill Family Practice) the EAT confirmed that when determining a claim for unfavourable treatment arising in consequence of a disability, Tribunals must consider whether the employer’s pursued legitimate aim could be achieved by less discriminatory means.
Discrimination arising from disability (“unfavourable treatment”) was a new ground of claim created under the Equality Act 2010. An employer will be liable if they:
- treat an employee unfavourably because of something arising in consequence of their disability; and
- cannot show the treatment is a proportionate means of achieving a legitimate aim.
The second strand of the test requires Tribunals to analyse whether there was a legitimate aim being pursued and if the treatment was proportionate to achieve that aim.
In Ali, the Claimant was on long-term sick leave following a heart attack (his ongoing heart condition was accepted to be a disability). The Practice obtained a medical report stating that the Claimant was unlikely to ever be able to return to work on a full-time basis but may be able to return on a phased part-time basis. The Claimant was then signed off work for six weeks with a shoulder injury and on his return dismissed on the grounds of capability.
The ET upheld the complaint for unfair dismissal, due to the Practice’s failure to consider a part-time return to work. However, the ET dismissed the unfavourable treatment claim, as they held the Practice to have a legitimate aim of ensuring the Practice could give the best possible care to patients.
The EAT held, overturning the ET’s reasoning, that to assess the proportionality of the treatment, the ET should have considered if returning on a part-time basis was a less onerous way of the Practice achieving its legitimate aim. The case has been remitted to the same Tribunal to consider the ‘proportionality’ issue.
The case highlights that when an employer subjects a disabled employee to unfavourable treatment, even if it is in pursuit of a legitimate aim, the employer must consider if there are less severe steps they can take to achieve the aim (for example, as in this case, returning to work on a part-time basis rather than dismissal).