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Section 15 of The Equality Act 2010, provides that it will be unlawful discrimination for a disabled person to be treated unfavourably because of something arising in consequence of their disability unless it can be proven that the treatment is a proportionate means of achieving a legitimate aim.  The question of how to approach the fundamental issue of causation inherent in the statutory test is one that can throw up fairly complex and profound issues that even experts in metaphysics might struggle with.

 

While the possible consequences of a disability may be infinitely variable it is easy to see that if an employee is dismissed because of e.g.  absence arising from disability related incapacity then a claim under section 15 may well arise. In Basildon &Thurrock NHS Foundation v Weerasinghe [2016] the Employment Appeal Tribunal (EAT) set out a two stage test for the causation requirement. First there must be something arising in in consequence of the disability and secondly the unfavourable treatment must be “because” of that “something”. So far so good. But what if, during an employee’s disability related absence, their employer identifies that the business is able to manage without them?  The employer may regard the situation as one of redundancy – a reduced business need for employees and a potentially fair and non-discriminatory reason for dismissal. However could the employee successfully argue that they have been discriminated against under section 15? They may say that the decision to terminate their employment was materially impacted by their disability and that this is sufficient to make out their claim. This exact question was addressed in the recent case of Charlesworth v Dransfileds Engineering Services Ltd UKEAT/0197/16.

In this case, Mr Charlesworth was a branch manager. Unfortunately he developed renal cancer and had to take a two month period of sickness absence in late 2014. Prior to his absence his employer had identified a need for the business to make cost savings and during Mr Charlesworth’s absence the employer realised that the business could achieve this aim by absorbing his responsibilities into those of others. Following his return to work Mr Charlesworth was dismissed for redundancy. He subsequently brought claims against his employer for unfair dismissal, direct discrimination and discrimination arising from disability in the employment tribunal which were all dismissed.

He then appealed the decision to the EAT. Mr Charlesworth challenged the tribunal’s decision and submitted that they had applied the incorrect causation test to the claim for discrimination arising from disability. He argued that section 15 should be interpreted to allow for “the mere influence” of his sickness absence on his employer’s decision to dismiss him to be sufficient to satisfy a section 15 discrimination claim. However, this interpretation was explicitly rejected by the EAT. Previous case law had established that section 15 required “a significant influence on the unfavourable treatment or a cause which was not the main cause or the sole cause but is nevertheless an effective cause of the treatment.”

The EAT acknowledged, as the tribunal had that, although there was a link between Mr Charlesworth’s disability-related absence and his dismissal, this being that his absence gave the employer an opportunity to observe the way in which work was dealt with and exposed their ability to manage without his role, this was not the same as saying that he was dismissed because of his absence. There was a distinction between the context in which the events occurred and those matters which were causative.  The absence was merely the occasion on which the employer was able to identify something that it may very well have identified in other ways. Accordingly the Tribunal had made no error in determining that no disability-related discrimination had occurred.

Comment

It is worth noting that the EAT looked favourably on the fact that the employer had conducted the redundancy process fairly and had proactively searched for an alternative post taking into consideration the employee’s skills. The EAT did however indicate that this decision could not, in all cases, be relied upon by employers as a means to justify the dismissal of disabled employees.  It stated that where absence is the cause of the conclusion that the employer is able to manage without a particular employee this was likely to be the effective cause of a decision to dismiss even if not the main one and therefore potentially discriminatory unless the employer could justify the decision. 

The essential distinction being drawn between the circumstances surrounding the unfavourable treatment and the effective reason may be a difficult one to determine for both employer and employee. The problem with the conclusion that the employer could have identified that they could do without Mr Charlesworth by other means is that, in the particular case, his disability related absence was, in fact, the trigger for that conclusion.   The issue is thrown into stark relief if we consider the case of an employer who decided during an employee’s maternity leave, that they could do without her.   Such an employer may find it more difficult to resist the conclusion that they had discriminated against the employee.  Should we regard that as the correct outcome?

While the case is therefore generally favourable for employers going forward employers should continue to ensure that terminations of disabled employees on grounds of redundancy are backed up with a robust business case always considering the key question - “Why am I dismissing?”

If you have any queries about the above issues, please get in touch with a member of the Stronachs Employment Team.

Eric Gilligan, Partner and Emma Laing Trainee Solicitor.

 

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