Claims for disability discrimination by cancer sufferer rejected


 

In the case of Charlesworth v Dransfields Engineering Services Limited the Employment Appeal Tribunal held that the Employment Tribunal was entitled to find that an employee’s absence for cancer treatment was not the reason for his dismissal even though his two month absence from work led his employer to identify that they could do without him.

Mr Charlesworth was the manager of the company’s Rotherham branch. From 2012 onwards the company was looking for ways to reduce costs due to reduced profitability. In 2014 Mr Charlesworth underwent surgery for cancer and was off work for about 2 months. Whilst Mr Charlesworth was off sick the company identified the opportunity to save around £40,000 per annum by deleting his role and distributing his responsibilities amongst other staff at the branch.

The company consulted Mr Charlesworth about his potential redundancy and alternatives to redundancy were considered but no vacancy was identified. Mr Charlesworth was made redundant and subsequently brought claims for unfair dismissal, direct disability discrimination and discrimination because of something arising in consequence of disability.

The Employment Tribunal found in favour of the Company and dismissed Mr Charlesworth’s claims. In relation to the claim for discrimination for something arising in consequence of disability, under s.15 Equality Act, the tribunal noted that there was some link between Mr Charlesworth’s absence and his dismissal because his absence gave his employer an opportunity to identify the ability to manage without him. However, the tribunal held that this was different to saying that Mr Charlesworth was dismissed because of his absence.

Importantly, in the tribunal’s view, Mr Charlesworth’s absence was not an effective or operative cause of his dismissal; it merely enabled the company to identify something that it could have identified in other ways and other circumstances. The matter that caused Mr Charlesworth’s dismissal was the company’s view that it could do without him.

Mr Charlesworth appealed to the Employment Appeal Tribunal (“EAT”). The EAT referred to two leading cases on the point and held that s.15 cases require a two stage approach. First, there must be something arising in consequence of the disability, secondly, the unfavourable treatment must be because of that “something”. The EAT held that the tribunal had properly directed itself to the causation test and permissibly concluded that Mr Charlesworth’s absence was merely the occasion on which the company was able to identify its need to manage without him, not the cause of his dismissal.

In this case the employer was able to show that they had been looking to make costs savings long before Mr Charlesworth’s sickness absence. The outcome may not have been the same had they not been able to demonstrate this. Please contact us for advice if you wish to discuss your own situation.

If you would like to read the full judgment, you can find it by clicking here