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Discrimination arising from disability: When does disability-related absence cause a dismissal?

In the case of Charlesworth v Dransfields Engineering Services Limited (DES) the Employment Appeal Tribunal (EAT) has upheld a Tribunal’s decision that there was no discrimination because of something arising in consequence of disability when an employee was made redundant following a period of absence for cancer treatment.  Although the Claimant’s two month absence was part of the context, it was not the effective cause of the dismissal.

Background

Under section 15 of the Equality Act 2010 (EqA) a person discriminates against a disabled person if he or she treats the disabled person unfavourably because of something arising in consequence of that disabled person’s disability. An obvious example is a dismissal because of disability-related absence rather than because of the disability itself.

Brief facts

The Claimant was the manager of the Rotherham branch of DES. DES had not been as profitable as desired and cost savings had been considered as early as 2012.  Between October and December 2014 the Claimant was on sick leave for renal cancer treatment and subsequently returned to work full time on 15 December 2014.  There was no dispute that the Claimant was fit and able to return to his role.  During the Claimant’s absence DES identified the possible cost saving of £40,000 by absorbing the branch manager role into other posts at Rotherham.

In March 2015 the Claimant was notified of his potential redundancy and although alternative employment was considered, a suitable vacancy was not found. The Claimant was given four weeks’ notice which terminated on 28 April 2015.  The Claimant subsequently brought claims of unfair dismissal, direct disability discrimination and discrimination because of something arising in consequence of disability.  The Tribunal rejected all of his claims.  In relation to the discrimination because of something arising in consequence of disability, although a link was identified between the dismissal and the absence, the dismissal was not because of the absence.  The absence merely provided the business with the opportunity to identify a potential cost saving.  The Claimant appealed.

The EAT

The EAT dismissed the Claimant’s appeal. The EAT considered Mr Justice Langstaff’s two-stage test for s 15 EqA laid down in Basildon and Thurrock NHS Trust Foundation Trust v Weerasinghe:

  • There must be something arising in consequence of the disability.
  • The unfavourable treatment must be “because of” that “something”.

The EAT concluded that in order for the treatment to be because of “something”, the “something” must be the effective cause or a significant influence on the unfavourable treatment. In this case the disability-related absence was not the cause of the dismissal, rather it simply provided the context in which to identify a potentially redundant role.

Comment

The EAT has provided further useful guidance on discrimination arising from disability. It is important to emphasise that this case turns very much on its own facts.  There will be occasions when an employee’s disability-related absence will be a causative link to the dismissal, however on the facts of this case it was not.

Employers will feel reassured that where the dismissal is genuinely not caused by the disability-related absence, Tribunals are prepared to consider the true context of the dismissal.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further