Context is all

Jodie Sinclair looks at fair redundancy following absence for cancer treatment.

Discrimination 'arising from' disability is a relatively new concept, introduced by the Equality Act back in 2010. It is designed to cover situations where a disabled person is treated unfavourably because of something arising in consequence of their disability, rather than because of their disability itself (that is covered by direct disability discrimination). For example, discrimination arising from disability would occur if a disabled wheelchair user was disciplined for being repeatedly late for work, but their lateness was caused because they sometimes had to wait longer for an adapted bus to take them into work.

Unlike direct disability discrimination, employers may be able to defend a claim for discrimination arising from disability, but only if the treatment is justified, i.e. a proportionate means of achieving a legitimate aim.

Caselaw has established that there are two steps to the test to be applied by tribunals in determining whether discrimination arising from disability has occurred.

1. Did the claimant's disability cause, have the consequence of, or result in, "something"?
2. Did the employer treat the claimant unfavourably because of that "something"? (Basildon & Thurrock NHS Foundation Trust v Weerasinghe, EAT 2014)

There only needs to be a loose connection between the employee's disability and the unfavourable treatment; it is not necessary for the claimant's disability to be the cause of the respondent's actions for a claim to succeed. It is enough for the "something arising" as a consequence of the employee's disability to be a significant influence on, or 'effective cause' of, the unfavourable treatment.

Under the Equality Act 2010, certain conditions are 'deemed disabilities' for the purpose of disability discrimination protection, meaning that individuals suffering from those conditions do not have to meet the usual statutory tests to establish that their illness is sufficiently serious to be classed as a disability.  Cancer is one such 'deemed disability'.

The facts

Mr Charlesworth was a branch manager at Dransfields Engineering Services Ltd (DES). DES was not profitable and from 2012 onwards it was looking to make cost savings.

In the summer of 2014, Mr Charlesworth developed renal cancer and was off work from October to December 2014. In November 2014 (i.e. shortly after Mr Charlesworth's sick leave commenced) DES's operations manager identified the possibility of restructuring the business in a way that would delete Mr Charlesworth's post, saving the business £40,000.

There was no alternative post available to Mr Charlesworth and he was subsequently made redundant in April 2015, approximately four months after his return to work following his treatment for cancer. Mr Charlesworth chose not to appeal, but subsequently brought claims for unfair dismissal, direct disability discrimination and discrimination arising from disability.

The tribunal dismissed his claims. With regard to his discrimination arising from disability claim, it accepted that there was a link between his disability-related absence and his dismissal, as his absence had highlighted to DES that Mr Charlesworth's branch could function without anyone covering his role. However, it considered that this stopped short of a dismissal because of sickness absence. Mr Charlesworth's absence was just the context within which the events occurred; it was not causative.

Mr Charlesworth appealed.

The decision

In Charlesworth v Dransfields Engineering Services Limited, the Employment Appeal Tribunal (EAT) dismissed the appeal and upheld the employment tribunal's decision.

The EAT considered that the tribunal had correctly applied the two-stage test outlined above and was entitled to find that Mr Charlesworth's absence was not an effective cause of the decision to dismiss him.

The EAT agreed with the tribunal that Mr Charlesworth's absence "threw into sharp relief" (paragraph 18) the employer's ability to manage without anyone fulfilling his role; but that was not the same as saying that he was dismissed because of his absence. However, the EAT noted that each case will turn on its own facts.

What does this mean for me?

Whilst recent disability discrimination case law has shown a trend towards employee friendly decisions, this decision sees the EAT adopt an employer-friendly approach. That said, it is important to note the EAT's observation that cases of this type will turn on their own facts, so a tribunal may be entitled to come to a different conclusion on a case with apparently similar facts.

Taking that into account, it would not be advisable for employers to re-work existing redundancy or equalities policies on the basis of this decision or change working practice. Employers seeking to dismiss disabled employees because disability related absence has highlighted that they are surplus to requirements will need to be very confident that the absence merely forms back of the backdrop to the decision to dismiss and is not because of the disability related absence. In other words, employers will need to establish no causal link between the "something" that arises because of an employee's disability and the employer's subsequent actions.

Jodie Sinclair is a partner at Bevan Brittan. She can be contacted on 0370 194 7890 or This email address is being protected from spambots. You need JavaScript enabled to view it..