ICAEW.com works better with JavaScript enabled.

Case law: Employers welcome guidance on when disability is an 'effective cause' of a dismissal

Before dismissing an employee after a disability-related absence, employers should ensure the absence is not an 'effective cause' of the dismissal, or risk a successful disability discrimination claim.

July 2017

This update was published in Legal Alert - July 2017

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A branch manager was off work for a short time due to cancer. This meant he was automatically treated as disabled for the purposes of disability discrimination law.

His employer had been assessing cost-cutting measures, and while the employee was off work it decided that his branch could operate without him, and could save costs by abolishing his job. The employee was therefore made redundant after he returned to work. Among other things, he claimed disability discrimination.

It is direct disability discrimination if an employer treats an employee with a disability less favourably:

  • because of something arising in consequence of the employee's disability, and
  • the employer:
    • cannot show that the treatment is a proportionate means of achieving a legitimate aim
    • knows, or could reasonably be expected to know, that the disabled person has a disability

One issue was whether the employee's dismissal was because of something arising in consequence of his disability.

The Employment Tribunal (ET) found that his absence (due to his disability) and his dismissal were linked in the sense that his time off sick had shown his employer that the branch could operate without him. However, it found that he had not been dismissed because of his disability-related absence, which was merely part of the context within which events occurred rather than an effective cause of the dismissal. Therefore, there had been no disability discrimination.

The Employment Appeal Tribunal (EAT) agreed. It confirmed that there was no need for an employee's disability to be the cause of an employer's action (in this case, his dismissal); and a cause need not be the only or main cause of the employee's action, provided it was an effective cause. The test was therefore whether the employee's disability-related absence was an effective cause (or one of the effective causes) of the dismissal. It said an effective cause was 'an influence or cause that does in fact operate on the mind of a putative discriminator whether consciously or subconsciously to a significant extent'.

In this case, it found that the employee's disability-related absence was not an effective cause of the dismissal.

The Court stressed that each case would be fact-specific – that there may 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…' [emphasis added].

Operative date

  • Now

Recommendation

  • Employers should ensure, before dismissing an employee after a disability-related absence, that the absence is not an 'effective cause' of the dismissal, or they risk a successful disability discrimination claim against them

Case ref: Charlesworth v Dransfields Engineering Services UKEAT/0197/16/JOJ

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.