No disability discrimination for redundancy following sickness absence
In an interesting decision of the EAT in Charlesworth v Dransfields Engineering Services Ltd the EAT gave guidance on how to establish causation in claims of discrimination arising from disability. It upheld the Employment Tribunal decision that an employee's sickness absence was the context for his subsequent redundancy but as the sickness absence was not the reason for dismissal there was no discrimination arising from disability.
Mr Charlesworth was one of four branch managers at Dransfields. The company was not sufficiently profitable and from 2012 onwards it was looking to make costs savings although there were no formal discussions about this or any possible redundancies. In summer 2014, Mr Charlesworth developed renal cancer and was off work from October 2014. He returned to work on 15 December.
By the end of November, the Operations Director identified the possibility of restructuring the business in a way that meant removing Mr Charlesworth's position of branch manager in Rotherham and the responsibilities absorbed into existing posts. This would result in a saving of around £40,000 a year.
On 6 March 2015, Mr Charlesworth was informed by email that he was in a potential redundancy situation because of the diminished requirement for the work of a branch manager in Rotherham. Various consultation meetings followed and although Mr Charlesworth was given the opportunity to make comments or to suggest ways in which the redundancy might be avoided none were made. There was no suitable alternative employment elsewhere in the company and Mr Charlesworth's employment ended on 20 April. He did not appeal that decision.
Mr Charlesworth then brought proceedings for unfair dismissal, direct disability discrimination and discrimination arising from disability. With regard to disability, it is important to remember that under the Equality Act 2010 an individual with cancer is deemed to be disabled from the point of diagnosis and there is no need to show a substantial and long-term adverse effect on carrying out normal day-to-day activities.
Employment Tribunal decision
The Employment Tribunal dismissed the claim for unfair dismissal on the basis that there was a genuine redundancy situation and there was no suitable alternative employment.
The claim for direct disability discrimination was also dismissed. Mr Charlesworth's selection for redundancy and subsequent dismissal for that reason was not because of his disability. The company wanted to make costs savings and this was the reason for Mr Charlesworth's treatment rather than his disability. The Employment Tribunal found that the company would not have treated somebody without a disability any differently.
Under section 15(1) of the Equality Act 2010 discrimination arising from disability occurs where both:
- A treats B unfavourably because of something arising in consequence of B's disability.
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The Employment Tribunal noted there was a link between the sickness absence and the dismissal because it was the absence that gave the company the chance to realise it did not need his post. However, this did not mean that Mr Charlesworth was dismissed because of his absence. The absence was not an effective or operative cause of the dismissal. Rather "It was the occasion which allowed the Respondent to identify something which it might very well have identified in other ways and in other circumstances and the Tribunal takes the view therefore that the matter that caused the Claimant's dismissal was the Respondent's view that it could do without him.
So, the Employment Tribunal dismissed this claim too.
Mr Charlesworth appealed the finding in relation to discrimination arising from disability arguing that the Employment Tribunal failed to apply the correct causation test when considering section 15(1).
The causation test under section 15(1) has been considered by the EAT in other cases and there are two leading authorities.
In Hall v Chief Constable of West Yorkshire Police the EAT held that there only had to be a loose connection between the disability and the unfavourable treatment. This could be where the disability has a significant influence on the unfavourable treatment or is an effective cause of the unfavourable treatment which is not the main or sole cause.
In Basildon & Thurrock NHS Foundation Trust v Weerasinghe the EAT identified a two-stage approach when deciding if discrimination from disability has occurred:
- There must be something arising in consequence of the disability.
- The unfavourable treatment must be because of that "something".
Mr Charlesworth argued that the disability-related absence led to the reason for his dismissal and the Employment Tribunal applied too high a standard of causation. The question raised by Mr Charlesworth was whether something less than an operative cause or influence is sufficient to satisfy the requirement that the unfavourable treatment is because of the relevant "something".
The EAT held that, provided the "something" is an effective cause of the unfavourable treatment (it does not need to be the sole or main cause) the causal test is established. Further, the disability must have a significant influence on the discriminator and not just a mere influence. There was no conflict between the approaches taken in Hall and Weerasinghe.
So, was Mr Charlesworth's sickness absence an effective cause of his dismissal?
No. The absence gave the company the opportunity to assess the way in which the work was done, and, the realisation that the company could manage without somebody fulfilling the role of branch manager in Rotherham. However, the absence was part of the relevant context and it was not an effective or operative cause of the dismissal. What caused Mr Charlesworth's dismissal was the company's view that it could manage without him.
The EAT dismissed the appeal and upheld the Employment Tribunal's decision that Mr Charlesworth's absence resulting from his disability was not an operative cause of his dismissal for redundancy.
This case is helpful in giving employers guidance on dismissing employees who have a disability for redundancy. Even if an absence has played a part in shaping the employer's structure or thinking on how it can work going forwards, if a full and fair redundancy process is followed, with a clear decision on the new structure, such a decision will be defendable.