In a departure from the recent direction of travel, the Employment Appeal Tribunal has held that an employer, who dismissed a disabled employee after a long period of sickness, was not liable for discrimination arising from disability.
Disabled employees, who suffer from a physical or mental condition which has a long term and substantial effect on their day to day activities, are protected from various forms of discrimination. One claim that only disabled employees can bring is a claim for discrimination arising from disability. This is a claim that can be brought when an employer treats an employee unfavourably because of something arising in consequence of his or her disability. It can be justified if the employer can prove that the treatment a proportionate means of achieving a legitimate aim.
To date, whether something could be said to have arisen in consequence of disability has been interpreted widely. For example, an employer was held to have discriminated against a paraplegic employee because it had dismissed him when he became highly abusive after finding out that a meeting had been scheduled in a basement work venue, without wheelchair access. The fact the claimant’s temper was not a symptom of his disability was held to not be a relevant factor in the Tribunal’s judgment on whether his dismissal arose on discriminatory grounds – if the claimant had not been paraplegic, he would not have been angered by the employer’s decision to hold the meeting in a venue that he could not access.
The EAT in Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16, took a slightly more permissive approach. Mr Charlesworth unfortunately developed renal cancer and was off work from October to December 2014. During this period, his employer, Dransfields Engineering Services, found a way of restructuring its business that effectively deleted Mr Charlesworth’s post, saving up to £40,000 a year.
Mr Charlesworth was subsequently made redundant in April 2015, following consultation. Mr Charlesworth brought claims for unfair dismissal, direct disability discrimination and discrimination arising from disability. He said that the redundancy situation was a sham, he had been dismissed because of his disability and that there was a link between his absence and the decision to dismiss him and that this was discrimination arising from his disability.
An employment tribunal dismissed his claims and in relation to the claim for discrimination arising from disability, they accepted the employer’s arguments that Mr Charlesworth’s redundancy was fair. The tribunal accepted that there was a link between Mr Charlesworth’s absence through illness and the fact that he was dismissed, which threw into sharp relief, the business’ ability to manage without anyone fulfilling his role but said that this was not the same as saying that he was dismissed because of his absence. Other factors supporting Mr Charlesworth’s role being made redundant were:
- Mr Charlesworth’s branch was not highly profitable;
- There was no alternative post available for him; and
- His employer was looking to make cost-savings as far back as 2012.
Mr Charlesworth appealed. He stated the fact that it was only when on sickness-absence for his cancer that his employer decided to delete his job. Mr Charlesworth argued that the “link” between his absence and the dismissal was therefore enough to say his absence had caused it to occur and that the employer had dismissed him for something arising out of his disability. The EAT rejected his arguments.
The EAT considered that something arising from disability must be an “operative cause” of the unfavourable treatment, that works consciously or subconsciously on the mind of the putative discriminator, in order for the test to be satisfied.
In this vein, the EAT held that although his absence was linked to giving the employer the opportunity to see how it would cope without him, the operative reason for the dismissal was not the employee’s absence, but the employer’s cost-saving programme.
The EAT explained that the absence was merely part of the context of the dismissal, rather than causative. It was not inevitable that his role would be found to be unnecessary while he was away; a replacement may have been necessary, for instance. Further still, the ability to manage without him might have been identified in other ways.
As such, the EAT dismissed the appeal, holding that the tribunal had come to the correct conclusion. The EAT further emphasised that factual circumstances will make a significant difference when it comes to assessing an employee’s unfavourable treatment and the causative reasons for it.
Employers will welcome this decision as being a more employer-friendly interpretation of when a redundancy dismissal will be discrimination arising from an employee’s disability. However, this case is very fact specific and employers should exercise caution before relying on it when looking to make one of their own employees redundant in a similar situation. It does underline that employers are not barred from making redundancies when an employee’s sickness absence makes the employer re-assess the business need for the relevant employee but it’s worth bearing in mind that if employers were to take a similar approach with women on maternity leave, it is highly likely that it would be found to be discriminatory on grounds of sex.