Discrimination "arising from" a disability (under section 15 of the Equality Act) occurs if a claimant receives unfavourable treatment because of something arising as a consequence of their disability. The latest EAT decision on section 15 makes it clear that it is not enough for unfavourable treatment to occur in the context of disability; there must be a link between the disability and the issue giving rise to the unfavourable treatment.
The employee in Charlesworth v Dransfields Engineering Services Ltd was manager of one of the company's four branch offices. The business was not achieving anticipated profitability and the employee was selected for redundancy and his responsibilities absorbed into other roles, saving the company £40,000 a year. However, before this he had been absent from work for a short period suffering from cancer. Although he had returned to work before he was made redundant, the Tribunal found that it was during his absence that the restructuring of his role was identified as a possibility. However, although the absence clearly arose as a result of the disability and there was a link between absence and dismissal – the absence allowed the employer to identify the potential redundancy situation – the Tribunal decided this was not an effective or operative cause of the dismissal. The section 15 claim therefore failed.
The appeal also failed. The EAT reflected on the earlier decisions in Hall v Chief Constable of West Yorkshire Police and Basildon & Thurrock NHS Foundation Trust v Weerasinghe which, on very similar facts (both claimants were dismissed for gross misconduct because their employers thought they had not been honest about their sickness absence), came to different conclusions about whether the section 15 test was satisfied. In Hall, the EAT confirmed that there need only be a "loose" causal link between the disability and any unfavourable treatment. By contrast, in Weerasinghe, the EAT found that a mere link between the treatment complained of and the disability was not enough for a claim to succeed.
The EAT in Charlesworth concluded that there was no conflict of approach between Hall and Weerasinghe. Section 15 requires unfavourable treatment to be "because of something". If the "something" is an "effective cause" – an influence or cause that operates on the mind of the alleged discriminator to a significant extent (whether consciously or unconsciously) – the causal test is satisfied. The Tribunal had accepted that there was a link between the absence and the dismissal (in the sense that it demonstrated that the office could manage without a branch manager), but this was part of the context within which events occurred, not an effective or operative cause of the dismissal.