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Disability Discrimination

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Was it wrong for a tribunal to hold that reducing a payment on dismissal to a disabled civil servant under the Civil Service Compensation Scheme (CSCS) following a disability-related dismissal was discriminatory?

Yes, held the EAT in McAllister v Commissioners of HMRC.

The Claimant is disabled through his anxiety and depression; he was dismissed following a capability procedure. The tribunal held that the dismissal was justified. On dismissal for capability, the Claimant was entitled to an ‘efficiency payment’ under the CSCS. However, his payment was reduced to 50% of the maximum possible award, then on appeal under the scheme increased to 80%, that reduction was for reasons not disability-related, as permitted by the CSCS.

The EAT upheld the Respondent’s cross-appeal against the finding that reducing the CSCS payment was discriminatory. The Claimant had only been entitled to the CSCS payment because he was disabled, whereas a dismissed non-disabled employee would almost certainly not have been so entitled. It was not ‘unfavourable’ treatment for the Claimant to have received the payment, if anything it was more favourable. Identifying the relevant treatment – here receiving the efficiency payment – the EAT held that the tribunal had wrongly separated the calculation of the award, which only happened in the context of treatment that was not unfavourable - paying the award in the first place - from the entitlement to it. The Claimant’s appeal against his dismissal being not discriminatory was rejected, the tribunal’s findings on justification, the need for attendance, were permissible.

Thanks to Ed McFarlane for preparing this case summary.