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Redundancy, sickness absence and disability discrimination

The Employment Appeal Tribunal in the case of Charlesworth v Dransfields Engineering Service Ltd has provided guidance on section 15 of the Equality Act 2010 dealing with discrimination “arising from” disability.

Background

The Claimant was diagnosed with cancer and absent from work from October to December 2014. Dransfields Engineering Service Ltd (“the Company”) was looking to make costs savings and during the Claimant’s absence it identified that it could restructure the business to remove the Claimant’s role and make savings of around £40,000 per year.

The Claimant was subsequently made redundant and brought claims for unfair dismissal, direct disability discrimination and discrimination arising from disability.

The Law

Section 15 of the Equality Act 2010 states that discrimination arising from disability occurs when:

  • “A” treats “B” unfavourably because of something arising in consequence of “B’s” disability; and
  • “A” cannot show the treatment is a proportionate means of achieving a legitimate aim.

Previous case law has established the following test for identifying discrimination arising from disability:

  • Did the Claimant’s disability cause, have the consequence of or result in “something”? (i.e. in this case the Claimant’s absence)
  • Did the employer treat the Claimant unfavourably because of that “something”? (i.e. in this case, did the employer dismiss because of the Claimant’s absence?)

Decision

The Employment Tribunal dismissed the claims. Although there was a link between the disability-related absence and the Claimant’s dismissal in that the Claimant’s absence had highlighted that his role was not required, this was not the operative or effective cause of the dismissal.

The Employment Appeal Tribunal agreed and dismissed the appeal. To establish discrimination arising from disability the “something” (i.e. absence) had to be the effective cause of the dismissal. In this case the Claimant’s absence was not the effective cause of his dismissal.

Comment

Sickness absence is regularly pleaded as “something arising in consequence” of disability and employers need to be very careful when dismissing disabled employees. Employers looking to make a disabled employee redundant or dismiss for other reasons should always seek specialist advice as they can face potentially costly claims in the Employment Tribunal if not handled correctly.

If you would like to speak to us about disability discrimination, please feel free to email us  or contact us on 0191 282 2880 for a no obligation chat.

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