12 Jun 2017
Charlesworth v Dransfields Engineering Services Ltd
Mrs Justice Simler has clarified an apparent inconsistency in the law of causation in respect of claims under s.15 Equality Act 2010.
In the summer of 2014 the Operations Director, Mr Crook, became aware that the Claimant had sadly developed renal cancer and in October 2014 he was admitted to hospital for an operation and was off work from that point 15 December 2014, when he returned to work. The Tribunal found that by as early as the end of November 2014 Mr Crook had identified the possibility of restructuring the business in a way that deleted the Claimant’s post of Branch Manager at Rotherham thereby saving up to £40,000 per annum. The Claimant was fit and able to fulfil his role and did so from the point he returned.
An email dated 6 March 2015 spelt out the Respondent’s business reason for concluding that the Claimant was in a potential redundancy position, namely that there was a diminished requirement for work of a Branch Manager at Rotherham and that deleting the post of Branch Manager would result in a £40,000 saving. There was a series of consultation meetings in March 2015 with the Claimant and he was given four weeks’ notice to terminate on 28 April 2015. The opportunity to appeal that decision was made available to the Claimant, but ultimately he did not avail himself of an appeal.
The Tribunal dealt with the direct discrimination claim. The Claimant’s case was that he was the victim of a sham, there being no redundancy situation, and he was dismissed because of his disability. That was rejected, the Tribunal finding that the Respondent did not treat and would not have treated somebody without a disability any differently from the way in which the Claimant was treated. There was a desire to make cost savings. The possibility of a restructuring that would enable such cost savings to be made became apparent and that was the reason for the Claimant’s treatment rather than his disability. The Tribunal rejected the argument that the reason for the redundancy was connected with the Claimant’s disability in any sense whatsoever.
So far as unfair dismissal is concerned, the Tribunal accepted that the Respondent identified an ability to make a £40,000 cost saving because it could absorb the responsibilities of the Branch Manager role into other posts at Rotherham. It accepted that was a reason relating to redundancy. It accepted that there was no alternative post available and no obligation on the Respondent to create an alternative post. It accepted that the Claimant was the only person who occupied the Branch Manager post in question and although he had other skills, there was no evidence that any of those other skills were needed by the Respondent at the time. Ultimately it concluded that the dismissal was fair.
As to its reasoning on the s.15 claim the tribunal referred to there being some link between the Claimant’s absence and the fact that he was dismissed because it was his absence that gave the Respondent an opportunity to identify the ability to manage without the Claimant performing the Rotherham Branch Manager role, but held that did not amount to the same as saying that the Claimant was dismissed because of his absence. The Tribunal held that the Claimant’s absence was not an effective or operative cause of his dismissal, explaining that:
“29.3. … It was the occasion which allowed the Respondent to identify something which it might very well have identified in other ways and in other circumstances and the Tribunal takes the view therefore that the matter that caused the Claimant’s dismissal was the Respondent’s view that it could do without him.”
The question raised by the appeal was whether something less than an operative cause or influence is sufficient to satisfy the requirement that the unfavourable treatment is because of the relevant “something”. The appeal was based on apparent conflicting decision in Hall v Chief Constable of West Yorkshire and Basildon and Thurrock NHS Foundation Trust v Weerasinghe.
In paragraph 42 of Hall the EAT describe the looser causal connection set out in section 15 as requiring:
“42. … a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment. …”
This is a case where on the facts found by this Tribunal it felt able to draw a distinction between the context within which the events occurred and those matters that were causative. No doubt there will be many cases where an absence is the cause of a conclusion that the employer is able to manage without a particular employee and in those circumstances is likely to be an effective cause of a decision to dismiss even if not the main cause. But that does not detract from the possibility in a particular case or on particular facts, that absence is merely part of the context and not an effective cause. Every case will depend on its own particular facts.
Regency Barristers Chambers
8 June 2017