Discrimination arising from disability – justification

31.10.2016

The EAT has overturned a decision of the Tribunal in Buchanan -v- The Commissioner of Police of the Metropolis 2016, holding that in cases of discrimination arising from disability, it is the particular instances of unfavourable treatment which must be justified, not just the underlying policy.
Mr Buchanan was a police motorcycle rider. He was injured while on duty in 2012, and subsequently developed post-traumatic stress disorder. It was accepted that he was disabled for the purposes of the Equality Act 2010(‘EQA’). The Met subsequently applied the “Unsatisfactory Performance Procedure” to Mr Buchanan, which is intended to bring about a return to work, or a dismissal. The procedure was applied, and Mr Buchanan had to attend various meetings, and was given certain dates by which he had to return to work, or face being progressed to the next stage of the procedure. Medical evidence suggested that these dates to return were completely unrealistic, and Mr Buchanan would not be able to meet them. He did not return to work, but before the procedure under the policy was concluded, he was able to retire on ill health grounds.
Mr Buchanan brought a claim for discrimination arising from disability, section 15 EQA. This requires an individual to show that he suffered unfavourable treatment because of something arising in consequence of his disability. The unfavourable treatment can be justified if the employer can show that it was a proportionate means of achieving a legitimate aim. The Met was successful at first instance, arguing that the policy itself was justified as it was a proportionate means of achieving the legitimate aim of managing attendance.
On appeal, the EAT disagreed. While the Tribunal’s analysis might have been correct if the application of the policy had concerned the imposition of a mandatory rule (e.g. ‘dismiss after six months, no exceptions’), in this case the policy gave significant discretion to the Met to manage the process appropriately. It was therefore not just the underlying policy, but its particular application to Mr Buchanan at each stage (invitations to meetings, imposition of deadlines to return etc.) that had to be justified.
The case was remitted to the same Tribunal to consider whether the treatment complained of was a proportionate means of achieving the Met’s legitimate aim.