In the case of Buchanan v The Commissioner of Police of the Metropolis, the EAT gave useful guidance on the objective justification defence available to employers in certain discrimination claims.
Mr Buchanan (a policeman who had been on long term sick leave) claimed that the application of his employer’s absence management policy amounted to discrimination arising from his disability. When considering the question of whether the treatment could be objectively justified, the Employment Tribunal decided that the employer was only required to justify the policy itself and not specific actions taken under it.
The EAT disagreed and made clear that if the policy gives a manager an element of discretion it will be their decision that needs to be justified not merely the policy itself. Only when a policy contains a mandatory rule (which in sickness absence policies are rare) would the policy itself need to be justified.
Following this decision employers should be aware that, particularly with absence management procedures, it will likely be the employer’s application of the policy that will be considered and not the potentially easier defence of justifying the reasons for the policy itself.