In Charlesworth v Dransfield Engineering Services Ltd, the EAT upheld a tribunal's finding that the dismissal by reason of redundancy of an employee who suffered from cancer was not discrimination arising from disability.
Mr Charlesworth worked as a branch manager for Dransfield Engineering Services Ltd (DES). DES sought to improve profitability by saving costs from 2012 onwards. Following a diagnosis of renal cancer in Summer 2014, Mr Charlesworth was off work sick for a period of three months. During that time, DES found that it could operate without covering Mr Charlesworth's role and proposed a restructure. On his return to work, Mr Charlesworth was consulted about his potential redundancy and finally dismissed. He brought claims in an employment tribunal of unfair dismissal, direct disability discrimination and discrimination arising from disability (a claim under section 15 Equality Act 2010). In his Section 15 claim, he argued that his disability-related sickness absence was a cause of or influence on his dismissal (even though not a significant influence or effective cause) and that this was enough to make out the claim.
The tribunal dismissed all of Mr Charlesworth's claims. The EAT agreed. The EAT noted the case of Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15 which suggested that a section 15 claim requires only a loose connection between the employee's disability and the unfavourable treatment. The EAT made clear, however, that it is not enough for the "something arising" (here the sickness absence) to be the mere context of the unfavourable treatment but that it must rather be "an influence or cause that does in fact operate on the mind of a putative discriminator whether consciously or subconsciously to a significant extent and so amounts to an effective cause".
The EAT noted that the tribunal accepted that there was a link between the claimant's absence through illness and the fact that he was dismissed. The absence provided the opportunity to discover that the company could manage without anybody fulfilling the claimant's role. However, the EAT concurred with the tribunal that this was not the same as saying that the claimant was dismissed because of his absence.
The EAT made very clear that each case will turn on its facts. It stated that "there will be many cases where an absence is the cause of a conclusion that the employer is able to manage without a particular employee and in those circumstances is likely to be an effective cause of a decision to dismiss even if not the main cause". But it held that the tribunal was entitled to find in this case that the absence was merely "part of the context and not an effective cause". Given the potential for section 15 claims, employers should be cautious about dismissals following disability-related sickness absence where the absence could be argued to be one of the reasons for the dismissal.