Is there Confusion Over the Approach to Claims of Discrimination Arising from a Disability by Tribunals? The EAT Tries to Add some Clarity!
In the recent case of Charlesworth v Dransfields Engineering Services, the Employment Appeal Tribunal (EAT) has sought to clarify an area of uncertainty resulting from two earlier decisions involving claims of discrimination arising from a disability.
How did the uncertainty arise?
Section 15(1) of the Equality Act 2010 states that discrimination arising from a disability occurs where A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The case of Basildon & Thurrock NHS Foundation Trust v Weerasinghe provided guidance on how section 15(1) should be interpreted and confirmed that any tribunal must consider whether:
- The claimant's disability caused, was the consequence of causing, or resulted in, ‘something’; and
- The employer treated the claimant unfavourably because of that ‘something’?
In the separate case of Hall v Chief Constable of West Yorkshire Police, it was held that there only needed to be a ‘loose connection’ between the employee's disability and the unfavourable treatment. In that case, it was not necessary for the claimant's disability to be the sole cause of the actions for a section 15(1) claim of discrimination arising from a disability.
The EAT went on to consider the position further in the recent case of Charlesworth v Dransfields Engineering Services – this case is discussed below.
Charlesworth v Dransfields Engineering Services
The facts were that Mr Charlesworth was a branch manager at a company which had been unprofitable since 2012. In 2014, Mr Charlesworth developed renal cancer and was off work from October to December 2014. In November 2014, the company identified the restructuring of the business as a way to save money and the proposed restructure included removing Mr Charlesworth's position. Mr Charlesworth was subsequently made redundant in April 2015. Mr Charlesworth brought a claim to the tribunal for discrimination arising from a disability. In dismissing this claim the tribunal asserted that while Mr Charlesworth’s sickness absence had alerted the company that it could function without his position, this was not the same as saying Mr Charlesworth was dismissed because of his sickness absence. Mr Charlesworth appealed.
The EAT dismissed the appeal, concluding that the tribunal had correctly applied the two stage test established in Weerasinghe when finding that Mr Charlesworth's absence was not an effective cause of the company’s decision to dismiss him. The EAT also confirmed that Hall required the influence of the employee’s disability on the alleged discriminator (the company in the Charlesworth case) to be significant for the section 15(1) requirements to be met. This was not the same as saying that a mere influence would be sufficient. The EAT therefore concluded that there was no conflict between the approaches in Hall and Weerasinghe.
The case law on discrimination arising from a disability has usually been claimant-friendly and therefore the case of Charlesworth could be interpreted as a step back from this approach (i.e by requiring that a significant influence is needed). However, the EAT made it clear that each case will turn on its own facts so it remains to be seen how tribunals will go on to apply this approach in practice in other circumstances and if the additional guidance is enough to help ensure consistency.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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