Mr Charlesworth was the Rotherham branch manager at Dransfield Engineering, which had been struggling since 2012 with profitability and looking for costs savings. From October 2014, Mr Charlesworth was absent from work for around 2 months to have an operation for renal cancer, following which he returned to work. Around the time of his absence, the company identified the possibility of saving around £40,000 per annum by removing his role and absorbing his responsibilities into other roles at the branch.
In April 2015, and following a consultation process, Mr Charlesworth was made redundant. Mr Charlesworth brought claims in the employment tribunal (‘ET’) of unfair dismissal, direct disability discrimination and discrimination because of something arising in consequence of disability. The ET rejected all the claims, and Mr Charlesworth appealed to the EAT the decision on discrimination arising from disability.
The ET decision, and appeal to the EAT
Under s15 of the Equality Act 2010, an employer may not treat an employee unfavourably ‘because of something arising in consequence of’ the employee’s disability (unless it can objectively justify that treatment). In deciding that there was no discrimination arising from disability, the ET considered the link between Mr Charlesworth’s sickness absence, which it was accepted arose in consequence of his disability, and his dismissal. The ET found that, whilst the sickness absence provided the opportunity to identify that Mr Charlesworth’s post could be deleted, the absence was not actually the cause of the dismissal. The reason for the dismissal was the company’s view that they could manage without anyone fulfilling the role of Rotherham branch manager.
At the EAT, Mr Charlesworth argued that the ET had failed to apply the correct causation test. His case was that the link that the ET had itself identified between the disability-related absence and the dismissal was sufficient to give rise to liability under s15 Equality Act.
However, the EAT disagreed with Mr Charlesworth and dismissed his appeal. Under s15, the unfavourable treatment has to be ‘because of something’, and this something has to be an effective cause, even if it does not need to be the sole or main cause. In the EAT’s view, the ET was entitled to find that the sick leave was merely the context within which the events occurred and not one of the effective causes of Mr Charlesworth’s dismissal.
On the face of it, this decision seems to be helpful for employers, who may have assumed that making an employee redundant in these circumstances of disability-related absence would amount to disability discrimination (unless the dismissal could be justified as a proportionate means of achieving a legitimate aim).
However, as the EAT judgment itself made clear, this case was very much on its own facts. On the particular facts, the EAT was able to distinguish between the ‘context’ and the ‘cause’ of the disabled employee’s dismissal. However, this will often be a grey area.
In addition, employers should note that Mr Charlesworth’s dismissal was for redundancy. Where a disabled employee is in fact dismissed for long term (or frequent intermittent) sickness absence, it will usually be clear that the dismissal is because of the absence arising in consequence of the disability. This will amount to discrimination arising from disability, unless the employer can establish that the dismissal at that point in time was justified.
Members can find further information and guidance on disability discrimination on the EEF website, click here.
EEF is running a series of national seminars this month – Employee ill health: active management for effective outcomes. The seminars cover various thorny issues relating to sickness, absence and disability, including how to navigate the legal issues and real life complexities when considering dismissing employees who are absent from work and/or who may be disabled. For further information, or to book a place, click here.