Disproportionate and/or unreasonable: does one amount to the other?

March 21, 2017

Alistair Cantor looks at the Court of Appeal’s decision in Georgina O’Brien v Bolton St Catherine’s Academy on the relationship between the tests of disproportionality under s15 EqA and that of unreasonableness under s98(4) ERA.

On 15 March 2017 the Court of Appeal handed down its judgment in the case of Georgina O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145.  Numerous grounds of appeal were pursued; this article is directed to the judgment’s treatment of the interface between the tests of proportionality under s15 EqA 2010 and unreasonableness under s98(4) ERA 1996, which should be of wider significance to employment practitioners.

The judgment is available here.  Numeric references in square brackets are to paragraphs of the judgment.

The facts

The Appellant is a teacher and the Respondent a school and her former employer.  After suffering an assault at the hands of a student in March 2011, the Appellant was signed off from work from December 2011, with an initial diagnosis of stress.  She was subsequently further diagnosed with anxiety, depression and PTSD.  After being absent from work for over one year, she was dismissed on grounds of medical incapacity in January 2013.  The dismissal was upheld on internal appeal.

Procedural history

The Appellant brought proceedings in the ET for ordinary and automatic unfair dismissal, direct discrimination and/or unfavourable treatment relating to a disability (her illness) under s15 EqA, and wrongful dismissal.  In November 2014 the ET dismissed her claims for automatic unfair dismissal and direct discrimination.  It upheld her claims under s15 EqA, for ordinary unfair dismissal, and for wrongful dismissal.

In respect of the s15 EqA claim, the ET concluded that the dismissal related to legitimate aims, specifically the efficient running of the school, the reduction of costs and the need to provide a good standard of teaching [27].  However, it concluded that the dismissal was disproportionate, and thus discriminatory, since: (a) the Respondent had failed to evidence the adverse impact that the Appellant’s continued absence would have on the legitimate aims; and (b) therefore it would have been reasonable for the school to wait a little longer before deciding to dismiss [28-29].

In respect of the ordinary unfair dismissal claim, the ET concluded that since the dismissal was discriminatory, it also fell outside the range of reasonable responses for the purposes of s98(4) ERA.  The dismissal was thus substantively unfair [32].

The school appealed against the ET’s decision, save for that in relation to wrongful dismissal, on various grounds, inter alia that the ET had wrongly conflated the unfair dismissal and s15 EqA jurisdictions.  In September 2015, the EAT upheld the school’s appeal and remitted the case back down to a differently constituted tribunal for re-hearing, including on grounds the relevant tests had been wrongly conflated.  The Appellant appealed.

The Court of Appeal decision

By a majority of 2:1 the appeal was upheld.  Giving the leading judgment, LJ Underhill ruled that in the circumstances of the case, it was “entirely legitimate” for the ET to have concluded that its finding that the dismissal was disproportionate meant that it was also not reasonable [53].  It was acknowledged that the tests were expressed in different language, and, in the public law context at least, an assessment of “reasonableness” could be far less rigorous than one of proportionality [53].  However, in the context of a dismissal for long-term sickness in respect of a disabled employee, “it would be a pity if there were any real distinction” [53].

There was no reason why in that context different standards should be applied in respect of s15 EqA and s98(4) ERA [53].  It was well-established that in the appropriate context a consideration of proportionality could afford the appropriate degree of respect to the judgment of a rational and responsible decision maker [53].  There was “good reason” to adopt such an approach in the context of the employment relationship [53].  Meanwhile, the range of reasonable responses test under s98(4) ERA did not reduce the tribunal’s jurisdiction to one of “quasi-Wednesbury review”, preventing findings of unreasonableness except where the decision to dismiss was perverse [11, 53-54].  The EAT had erred in concluding the tests were different since that under s15 EqA was objective while that under s98(4) ERA was not; in fact, both tests were objective [55].  Therefore, the court doubted “very much” that the two tests could lead to different results, at least in this context [54].

Conclusion

This is an important decision.  Its effect is that, in claims involving a dismissal, an employer who fails the s15 EqA test is likely to be held to have acted unreasonably in dismissing.  Practitioners may conclude that the overlap in compensation available under either type of claim means the significance of a claimant succeeding on both is somewhat limited.  However, as noted by the Court of Appeal, the right to the basic award in the event of unfair dismissal means it is not “wholly academic” [51].

 

Barristers