Disability-related sickness absence – was it the cause of the dismissal?
Fri 18 Aug 2017
Discrimination arising from disability occurs where a person (A) treats another disabled person (B) unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. The Employment Appeal Tribunal has held that there are two distinct steps to be applied by tribunals in determining whether discrimination arising from disability has occurred:
(1) did the claimant’s disability cause, have the consequence of, or result in “something”; and
(2) did the employer treat the claimant unfavourably because of that “something”?
In the case of Charlesworth v Dransfields, the Employment Tribunal dismissed Mr Charlesworth’s discrimination arising from disability claim, indicating it accepted there was a link between the disability-related absence and the dismissal but that the absence was not causative. The Employment Appeal Tribunal has dismissed Mr Charlesworth’s appeal, agreeing with the Employment Tribunal.
Mr Charlesworth worked at Dransfields which, since 2012, was looking to make costs savings. Mr Charlesworth developed renal cancer in the summer of 2014 and was off work from October 2014 to December 2014. In November 2014, Dransfields decided to restructure the business and deleted Mr Charlesworth’s role, thereby saving Dransfields up to £40,000 a year. On Mr Charlesworth’s return to work, he was consulted about his potential redundancy and was finally made redundant in April 2015. Mr Charlesworth brought claims for unfair dismissal, direct disability discrimination and discrimination arising from disability. The Employment Tribunal dismissed each claim and Mr Charlesworth appealed to the Employment Appeal Tribunal. In particular, Mr Charlesworth’s appeal was on the ground that the Employment Tribunal had not used the correct test under statute. He argued that it was sufficient merely to show there was a cause of influence, which did not need to be significant or effective to meet the requirement that it was “because of something arising in consequence of disability”.
The Employment Appeal Tribunal dismissed Mr Charlesworth’s appeal. It indicated firmly that the test established in previous case law, that the “something arising” in consequence of disability needed to have a significant influence on the treatment complained of, was not the same as arguing, as Mr Charlesworth had done, that a mere influence is sufficient. The Employment Appeal Tribunal confirmed the two stage test to be applied in deciding whether the statutory definition of a claim for discrimination arising from disability has been made out and confirmed the Employment Tribunal had correctly applied that two stage test established in previous case law. The Employment Appeal Tribunal concluded that Mr Charlesworth’s absence was not an effective cause of the decision to dismiss him.
It is important to note that the Employment Appeal Tribunal highlighted there would be instances where absence is a cause of a decision to dismiss but in other instances, “absence is merely part of the context and not an effective cause”. With this in mind, the Employment Appeal Tribunal stated that “every case will depend on its own facts”. In this case, the fact that Dransfields was looking to make costs savings in 2012, prior to Mr Charlesworth’s absence in 2014 and his dismissal in 2015, was pivotal. Had it not been the case, the Employment Tribunal’s initial decision might have been different.