Section 15 of the Equality Act states that it is discrimination to treat someone unfavourably “because of something arising in consequence of their disability”. In Charlesworth v Dransfields Engineering Services Ltd, the Employment Appeal Tribunal (EAT) held that as long as the “something” is an effective cause the test in section 15 is satisfied, even if it is not the sole or the main cause of the unfavourable treatment.
Basic facts
In 2012, the company realised it needed to make savings because of disappointing profit levels. At the end of November 2014, the operations director Mr Crook identified that the post of branch manager held by Mr Charlesworth could be deleted, saving the company £40,000. In the interim, Mr Charlesworth was diagnosed with renal cancer and was off work from October to December 2014.
In March 2015, the company told Mr Charlesworth that he was at risk of redundancy. As there were no suitable alternative vacancies, he was given four weeks’ notice of termination on 28 April 2015. Mr Charlesworth brought claims of direct disability discrimination, discrimination because of something arising in consequence of his disability and unfair dismissal.
Tribunal decision
The tribunal dismissed his direct discrimination claim on the basis that the company would not have treated somebody without a disability any differently from the way in which he was treated. The reality was that it needed to make savings through a restructuring and his redundancy had nothing to do with his disability.
In relation to the claim for discrimination arising from disability, the tribunal accepted that the company had been able to identify that it could manage without him as a result of his absence, However, this was not the same as saying that he was dismissed because of his absence. It also decided that the dismissal was fair as it was for a reason relating to redundancy. There was no alternative post available and no obligation on the company to create one.
Mr Charlesworth appealed on the basis that the causation test for discrimination arising from disability can include any cause or influence. In other words, it did not have to be the effective cause as long as it led to the reason for dismissal and ultimately the dismissal itself.
EAT decision
Whilst accepting that in the case of Hall v Chief Constable of West Yorkshire, the EAT had described the influence required as “significant”, the EAT in this case held that it was important to consider the words in the context of the judgment as a whole. The EAT in Hall was not trying to identify alternative ways of satisfying the causal connection, but rather was using the words “significant influence” to mean an influence or cause that had operated on the mind of a potential discriminator whether consciously or subconsciously to a significant extent and so amounted to an effective cause.
Nor was there any conflict between the decision in Hall and the decision in Basildon and Thurrock NHS Foundation Trust v Weerasinghe in which the EAT emphasised the need to have regard to the two-stage approach in the legislation. Firstly, that there must be something arising in consequence of the disability; and secondly, that the unfavourable treatment must be “because of” that “something”. Provided the “something” was an effective cause, the test in section 15 was satisfied, even if it was not the sole or the main cause of the unfavourable treatment.
The tribunal was therefore right to hold that Mr Charlesworth’s absence on sick leave was merely part of the context of his dismissal and not the effective cause.