Discrimination arising from disability: no need to prove less discriminatory alternative treatment would have changed outcome (Birtenshaw v Oldfield)

Article summary

Employment analysis: Where it is established under section 15 of the Equality Act 2010 that an employer treated a disabled person unfavourably because of something arising from that disabled person’s disability, and the employer is seeking to show that that treatment was justified, the employer will have to show that the treatment was a proportionate means of achieving a legitimate aim, which means that the treatment must be no more than was necessary to accomplish that aim. In determining that, it will be relevant to consider whether or not any less discriminatory measure might have served that aim. If such less discriminatory measures are identified that might have achieved that aim, it is not necessary to ascertain whether the outcome would or might have been different if those measures had been taken, and the employer’s evidence on that question will be relevant but not determinative, according to the EAT.