It is possible objectively to justify an employee’s dismissal for reasons related to his or her disability. However, as a case concerning an autistic university analyst made plain, establishing such a justification is, to say the least, a demanding task.
The man, who had been diagnosed with high-functioning autism, was on long-term sick leave, suffering from stress, when he was dismissed. After he lodged a disability discrimination claim with an Employment Tribunal (ET), the university accepted that his dismissal was for reasons related to his disability and that this was unfavourable treatment.
In rejecting his complaint, however, the ET found that his dismissal was objectively justified as a proportionate means of achieving the legitimate aim of ensuring the efficient running of the department in which he worked, as part of the overall provision of services to students.
The ET found that the university had been extremely accommodating in seeking to ensure his ability to participate in the lengthy, four-stage process that preceded his dismissal. It had gone above and beyond what was reasonably required. It had sought advice from occupational health professionals and paid for a specialist assessment by a consultant psychiatrist.
Although the burden of establishing an objective justification rested on the university, the ET noted that there had to be a timescale in relation to his return to work. It was obvious that holding his job open for him indefinitely would be significantly disruptive to the university.
Upholding his challenge to that outcome, the Employment Appeal Tribunal (EAT) noted that the ET was required to carry out its own critical evaluation of the evidence, weighing in the balance the needs of the employer against the discriminatory impact of his dismissal. It was not enough for the ET to ask itself whether dismissal fell within the band of reasonable responses open to a reasonable employer.
The ET did not explain its conclusion that it would be obviously disruptive to hold his job open for him any longer. It made no findings as to whether his role was satisfactorily covered during his absence or whether there was any additional cost to the university. On the facts of the case, a disruptive impact was not immediately apparent. The EAT could not be satisfied from the reasons given by the ET that its conclusion that the dismissal was a proportionate measure was safe. The man’s case was remitted to the same ET for fresh consideration.