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Discrimination: Justification

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 Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary.

In a case of ‘discrimination arising’ under s.15 Equality Act 2010, it sufficient to show that the policy from which unfavourable treatment flowed was justified, or must the alleged discriminator justify the specific treatment? The latter, held the EAT in Buchanan v Commissioner of Police of the Metropolis.

B was a police officer who suffered disabling PTSD in a motorbike accident in the course of duty, and was off work. Managers served on him a series of notices under the Unsatisfactory Performance Process (UPP), details of which are prescribed by the Police (Performance) Regulations 2012, requiring him to return. They knew he was in no condition to do so; they were simply moving through the process towards a final decision on his continued service. These demands caused B distress.

The MPS argued that the UPP was a proportionate means of achieving various legitimate aims, and the tribunal should therefore regard the treatment that had flowed from it as justified. The employment tribunal accepted that, but the EAT held that the demands were not mandatory under the UPP or the Regulations, and the MPS should have been required to justify the specific treatment.