The claimant in S Pal v Accenture (UK) Ltd was dismissed under an 'up or out' policy, where employee's are expected to demonstrate continual progression. While the policy allowed adjustments for sabbaticals, family leave and sickness depending on the circumstances Ms Pal - who had lost time for operations for endometriosis -felt she had been discriminated against for something arising from a disability.
What does this case mean for 'up and out' policies?
The Employment Tribunal dismissed the claim, but the Employment Appeal Tribunal was critical of how this decision was reached. The EAT held that the tribunal had failed to properly consider whether the claimant was disabled, in part because it disregarded the claimant’s impact statement, and so could not properly assess other issues relating to disability. It had also misapplied the Polkey reduction.
This does not mean the Employment Appeal Tribunal found in favour of the claimant. The case has been sent back to a different Employment Tribunal to reconsider these issues. (As an employment tribunal finding, this finding will not be binding on other tribunals).
Therefore, much of the judgment is about the tribunal’s significant failings, rather than the policy or dismissal in this case.
Can employers learn anything from the case?
The general principle is to ensure that all policies and procedures are legally correct and properly applied.
With an “up and out policy”, employers must be cautious of the risk of indirect discrimination or discrimination due to something arising from a disability. When considering whether something arises from a disability, it is sensible to take a broad approach. One of the EAT’s criticisms was the failure to consider that absence because of treatment might count as arising from a disability. The EAT also emphasised that, for a legal claim to be successful, the things arising from disability do not need to be the main or principal reason for dismissal, just to have been an effective cause.
The EAT did make some comments about dismissal for capability under ‘up or out’ policies. Capability is a fair reason for dismissal if the employee is unable to do the type of work employer to do, with reference to their contract, while dismissals under ‘up or out’ policies are generally for a lack of readiness for promotion. This relates not to the employee’s capability to do their work they are employed for, but to do the work they would be employed to do if promoted. The tribunal considered that ‘some other substantial reason’ could be a more appropriate ground for such dismissal, but that employers would still need to consider whether this justified dismissal.
Employers should seek legal advice when drafting such a policy, and when applying it, to be sure they are not inadvertently discriminating.
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