EAT dismissed appeal in McAllister v Commissioners for Revenue and Customs


Re: McAllister v Commissioners for Revenue and Customs [2023] ICR 483

The Employment Appeal Tribunal (EAT) (Eady P) handed down its judgment in McAllister v Commissioners for Revenue and Customs [2023] ICR 483, dismissing the claimant’s appeal and allowing the government department’s cross-appeal.  The case is of particular significance in confirming that, if a payment would not have been given at all but for a person’s disability, the fact that the payment is reduced because of conduct which arose in consequence of that disability does not constitute ‘unfavourable treatment’ for the purposes of a claim for discrimination arising from disability.

The claimant (M) was an employee of the Commissioner for Revenue and Customs. He suffered from anxiety and depression – a recognised disability for the purposes of s.15 Equality Act 2010. M had been dismissed from his employment because of his prolonged absences from work, which were a consequence of his disability. Under the Civil Service Compensation Scheme (CSCS), he received compensation for his loss of employment of only 50% of the maximum possible amount as a result of, inter alia, his lack of availability, late attendance and disruptive conduct in the workplace.

On appeal to the Civil Service Appeal Board (CSAB), that payment was increased to 80%.

At first instance, on M’s claim of disability discrimination, the lower tribunal dismissed his complaint – finding that M’s dismissal was a fair and proportionate means of achieving a legitimate aim; namely, ensuring that staff were demonstrating satisfactory attendance, achieving a fair, effective and transparent sickness management regime, and the efficient use of resources. As to the CSCS award, the lower tribunal agreed with the CSAB that a 20% reduction was correct: the legitimate aim of ensuring public funds were used ‘properly in line with guidance’ would not be proportionately achieved by reducing the payment to 50%.

M appealed to the EAT against the lower tribunal’s decision contending that his dismissal was not objectively justified and could not be fair.

The respondent cross-appealed against the tribunal’s finding that the reduction in compensation by 50% was unfavourable treatment.

On the issue of ‘unfair dismissal’, the EAT dismissed the appeal. It held that the relevant questions for the lower tribunal were whether it was satisfied that the respondent’s decision to dismiss M (a) corresponded to a real need on the part of the respondent; (b) was appropriate to achieve that need; and (c) was reasonably necessary to that end.  It was open on the evidence for the lower tribunal to have found that M’s absence had had an adverse impact on staff morale, management time, and the efficient use of resources.

On the question of the CSCS award, the EAT allowed the cross-appeal. It agreed with the lower tribunal that the award had been made because of M’s disability-related absences. However, it held that his entitlement to be paid under the CSCS, by reason of his disability, could not be said to be unfavourable: if anything, it was more favourable than would have been the position had he been dismissed for a reason other than his disability.

Mathew Purchase KC was instructed by the Government Legal Department for the respondent employer.