United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0197/16/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 12 January 2017

 

 

 

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

(SITTING ALONE)

 

 

 

 

 

 

MR D CHARLESWORTH                                                                            APPELLANT

 

 

 

 

 

DRANSFIELDS ENGINEERING SERVICES LTD                                   RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR KEVIN McNERNEY (of Counsel) Instructed by: Ison Harrison Solicitors Duke House 54 Wellington Street Leeds LS1 2EE
For the Respondent	MR SIMON PARKES (Solicitor) Taylor Rose TTKW Northminster House Northminster Peterborough PE1 1YN

 

 

SUMMARY

DISABILITY DISCRIMINATION - Section 15

 

1.               The Employment Tribunal’s decision that the Claimant’s absence resulting from his disability was not an operative cause of his dismissal for redundancy was reached without error of law or perversity.

 

2.               The Employment Tribunal did not deal with justification, save on what it described as a “cursory” basis and without making findings.  That was an approach to be avoided in a case where evidence was called and argument advanced on justification.  The parties were entitled to fully informed conclusions based on findings of fact rather than cursory ones.  The Employment Tribunal’s approach carried the risk of a conclusion that was inconsistent with other findings and conclusions, though it did not affect any aspect of the appeal here.

 

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

 

1.               This is an appeal from a Judgment with Reasons promulgated on 16 February 2016 of the Sheffield Employment Tribunal comprising Employment Judge Rostant and members Mr Smith and Dr Langman.  The Tribunal dismissed all claims pursued by Mr Charlesworth, referred to below as the Claimant, as he was before the Tribunal, for ease of reference.

 

2.               The Tribunal held first, that the decision to select the Claimant for redundancy and to dismiss him on that basis was not done on the grounds of or because of his disability and did not amount to unlawful direct disability discrimination.  Secondly there was no unlawful discrimination arising from disability.  Thirdly, it held that the Claimant’s dismissal was fair.  It accepted that the branch at which the Claimant was manager was not as profitable as desired and that the responsibilities could be absorbed into existing posts thereby saving the Respondent £40,000 in costs.  The Tribunal accepted that there was no alternative post available to accommodate the Claimant and that he was the only person who occupied the post of Branch Manager that could be managed without.  Although he had other skills, there was no evidence that any of those other skills were needed by the Respondent at the time, and the Tribunal concluded that his dismissal for redundancy was neither a sham nor unfair.

 

3.               This appeal is concerned with a challenge to the second of the Tribunal’s conclusions that there was no unlawful discrimination arising from disability.  There is also a contingent appeal against the finding that the dismissal was fair, but that is entirely dependent on the success of the challenge to the finding in relation to discrimination arising from disability and raises no separate issues of its own.  On this appeal the Claimant appears by Mr Kevin McNerney of counsel and the appeal is resisted by the Respondent who appears by Mr Simon Parkes, solicitor, both of whom appeared below.

 

The Facts in Summary

4.               The Tribunal observed that there was little conflict about the facts.  It set out its findings of fact at paragraphs 7 to 28.  In a short summary it found that the Claimant was the Branch Manager of one of four branches of the Respondent company and that he managed the branch in Rotherham.  It accepted that the Respondent’s business was not achieving the profitability either anticipated or desired.  Although there were no formal discussions about cost savings or redundancies, the Tribunal found that the Respondent was on the lookout to make cost savings throughout the period from 2012 onwards.

 

5.               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 - the precise date is not identified - until 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 thereby saving up to £40,000 per annum.  That finding, by implication, suggests that this was something that was in the mind of Mr Crook even earlier, and Mr Parkes makes the point that must have occurred at a point when, although the Claimant had had some absence, it was certainly not of any real length.  The Claimant, as I have indicated, returned to work on 15 December 2014, and there was no dispute that he was fit and able to fulfil his role and did so from that point onwards.

 

6.               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.  Mr Crook described the top-heavy management structure that was having a substantial and negative effect on the organisation’s overall profitability and told the Claimant he was at risk of redundancy.  The Claimant was given the opportunity to make comments or suggest ways in which redundancy might be avoided, but none were made.  The Tribunal found that the Respondent (through Mr Crook) gave consideration to the possibility of alternative employment within the group but found that there were no suitable vacancies for 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.

 

7.               The Tribunal dealt with the direct discrimination claim at paragraph 28.  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.

 

8.               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 at paragraph 30.1 that the dismissal was fair.

 

9.               Its reasoning on the claim for discrimination arising from disability appears at paragraph 29.  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 Appeal

10.            The first ground of appeal challenges the Tribunal’s decision on the basis that it failed to apply the correct causation test when dealing with section 15 of the Equality Act 2010 (“EqA”).  Mr McNerney submits that the causation test for discrimination arising from disability admits of the possibility that a cause or influence, however significant and whether or not it is an effective cause, is sufficient to constitute or to fulfil the requirement that it is “because of something arising in consequence of the disability”.  He submits that any cause, even if it does not operate on the mind of the putative discriminator and is therefore not an effective cause, is sufficient to satisfy section 15.  He goes on to argue that in this case it was the Claimant’s disability-related absence that led to the reason for dismissal and ultimately the dismissal itself.  He points to the Tribunal’s own findings of fact as to the role of the disability-related absence as demonstrating that the absence was an ingredient in the decision to dismiss and was important to the decision that the Claimant should be made redundant.  In those circumstances, by concluding that the absence was not an effective or operative cause of the dismissal he submits that the Tribunal must have applied too high a standard of causation or acted perversely in concluding that the dismissal was not because of the absence.

 

11.            Section 15(1) EqA provides:

“(1) A person (A) discriminates against a disabled person (B) if -

(a) A treats B unfavourably because of something arising in consequence of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

 

Accordingly, the question in a section 15 case is whether the disabled person has been treated unfavourably because of something arising in consequence of their disability.  The possible consequences of a disability are infinitely variable and will depend inevitably on the individual effect upon a disabled person of his or her particular disability.  Absence as a result of illness caused by disability is an obvious consequence.  In Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893 a tribunal found Ms Hall was suffering from an occurrence of a past disability that led to absence from work and was then subject to covert surveillance by her employer, who believed she was working whilst absent.  The tribunal rejected her claim for unlawful discrimination arising in consequence of disability, holding:

“7.8. … We agree that the disability has to be the cause of the respondent’s action; not merely the background circumstance. …”

 

The EAT held that was an error because it was not necessary for a claimant’s disability to be the cause of a respondent’s action in order for her claim to succeed under section 15.  It was in that sense that the causation test imposed by the tribunal was held by the EAT to be too stringent.  In Hall at paragraph 42, the EAT held:

“42. It seems to me that the tribunal made three errors.  Firstly, it appeared to consider that it was necessary for the claimant’s disability to be the cause of the respondent’s action in order for her claim to succeed.  Secondly, it made a contrast between the cause of the action and a background circumstance.  This leaves out of account a third logical possibility, which, it seems to me, is present in the looser language of s.15(1); ie 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.  The third error, in my judgment, in the ET’s approach, as evident from paragraph 7.8 of its decision, is its reference to the motivation for the unfavourable treatment.  It is clear from the authorities which I have cited at some length that to inquire into the motivation for unfavourable treatment is to ask the wrong question.”

 

12.            There was a similar analysis of the causation requirement in Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305 at paragraphs 26 to 31.  In particular, Langstaff J (President) referred to the two-stage approach identified by the statutory provision, both causal albeit differently expressed: first, there must be something arising in consequence of the disability; secondly, the unfavourable treatment must be “because of” that “something”.  He held that the words “arising in consequence of” may give some scope for a wider causal connection than the words “because of”, but considered that the difference if any will in most cases be small.  I agree.

 

13.            The question raised by Mr McNerney is 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”.  Mr McNerney’s argument might be thought to gain some traction from paragraph 42 of the EAT judgment in Hall.  That appears to have been the view of HHJ Peter Clark when giving permission for this appeal to proceed to a Full Hearing.  HHJ Peter Clark referred to the EAT’s “more rigorous investigation” into the structure of section 15 EqA carried out in Weerasinghe compared with the approach adopted in Hall and said he detected a possible tension between those decisions that required resolution at EAT level, and that was the basis on which he directed that this appeal should proceed.

 

14.            I have set out paragraph 42 of Hall where 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. …”

 

The first point to observe is that the EAT described the influence that is required as a significant one.  To the extent that Mr McNerney argued that a mere influence is sufficient, I do not accept his argument.  More importantly, however, it seems to me that read in the context of the judgment as a whole the EAT was not intending to identify alternative ways of satisfying the causal connection, namely by demonstrating either a significant influence that is less than an effective cause or on the other hand a cause that amounts to an effective cause.  It seems to me that the words are used synonymously to mean in both cases an influence or cause that does in fact operate on the mind of a putative discriminator whether consciously or subconsciously to a significant extent and so amounts to an effective cause (to borrow the words of Underhill P in IPC Media Ltd v Millar [2013] IRLR 707 at paragraph 17).

 

15.            In those circumstances, I do not consider that there is any conflict between the approach identified in Hall and that identified by Langstaff J in Weerasinghe.  As Langstaff J said in Weerasinghe the ingredients of a claim of discrimination arising from disability are defined by statute.  It is therefore to the statute that regard must be had.  The statute requires the unfavourable treatment to be “because of something”; nothing less will do.  Provided the “something” is an effective cause (though it need not be the sole or the main cause of the unfavourable treatment) the causal test is established.

 

16.            In this case, the Tribunal recognised that the requirement in section 15 does not involve any comparison between the Claimant’s treatment and that of others.  It expressly accepted that in considering a section 15 claim it is not necessary for the Claimant’s disability to be the cause of the Respondent’s action, and that a cause need not be the only or main cause provided it is an effective cause (see paragraph 29.2).  Notwithstanding the arguments of Mr McNerney, I can detect no error of law in that self-direction.

 

17.            At paragraph 29.3 the Tribunal applied the facts to that statutory test, adopting the two-stage approach identified in Weerasinghe.  In light of my conclusions above, I do not consider that there was any error of law by the Tribunal in taking that approach.  The Tribunal was entitled to ask whether the Claimant’s absence, which it accepted arose in consequence of his disability, was an effective cause of the decision to dismiss him.  To put that question another way, as this Tribunal did, was the Claimant’s sick leave one of the effective causes of his dismissal?

 

18.            The Tribunal accepted that there was a link between the Claimant’s absence through illness and the fact that he was dismissed, the link being that his absence afforded the Respondent an opportunity to observe the way in which the work was dealt with and threw into sharp relief their ability to manage without anybody fulfilling his role of Rotherham Branch Manager.  Nevertheless, the Tribunal went on to say that was not the same as saying that the Claimant was dismissed because of his absence.  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.  Here, the Tribunal concluded that the Claimant’s absence was not an effective or operative cause of his dismissal but was merely the occasion on which the Respondent was able to identify something it may very well have identified in other ways and in other circumstances, namely that the particular post was capable of being deleted with its responsibilities absorbed by others.  That conclusion led the Tribunal to hold that what caused the Claimant’s dismissal on these particular facts was the view that the Respondent could manage without him and that the absence formed part of the context only and was not an operative cause.  In my judgment, that was a conclusion open to the Tribunal, applying the statutory test, and reached without error of law.

 

19.            So far as perversity is concerned, the perversity threshold is a high one, and I do not consider that it is met in this case.  Mr McNerney submits that it was perverse for the Tribunal to find that the absence caused the realisation that the Respondent could manage without the Claimant and then conclude that the requirements of section 15 were not fulfilled.  He argues that the Tribunal’s finding that there was a link between the absence and the dismissal was tantamount to a finding that the absence was a cause of that dismissal.  I disagree.  The Tribunal’s findings and conclusions demonstrate that the Claimant’s absence did not inevitably mean that it would become obvious that his post was unnecessary.  His absence might have led the Respondent to conclude that they could not cope without him and would have to hire somebody on a temporary basis to fulfil his role if he did not return in the near future.  Moreover, as the Tribunal held, the ability to manage without him was something that might well have been identified in other ways and in other circumstances.  In the light of those findings and conclusions and on these particular facts, the Tribunal was entitled to conclude that the Claimant’s absence was not an effective cause of his dismissal.

 

20.            For all those reasons, I am satisfied that the Tribunal reached a conclusion that was open to it in relation to the section 15 claim and did not make the error of law advanced by Mr McNerney.  The contingent appeal does not arise in those circumstances.

 

21.            The Tribunal did not address the question of justification in light of its conclusions although it expressed a preliminary view without making findings as to what it might have held.  It seems to me that is an undesirable approach to adopt.  The point had been fully argued and addressed in evidence.  It would have been better for the Tribunal to address the question of justification on a substantive basis, particularly in a case where the arguments were strong for the Respondent and had to be considered to an extent in the context of the Claimant’s unfair dismissal claim.  In light of the Tribunal’s findings as to the fairness of the Claimant’s dismissal, it is difficult to understand the Tribunal’s alternative but “cursory” conclusion that the Claimant’s dismissal would not have been objectively justified under section 15.  Had the Tribunal concluded that the Claimant’s absence was a cause, factor or influence that operated on the mind of the Respondent to a significant extent, in light of its findings about the fairness of the dismissal, it is difficult to see how dismissal was not an proportionate means of achieving a legitimate aim within section 15(1)(b) in any event.  That question does not, however, arise in light of my conclusion that the challenge in ground 1 of the Notice of Appeal fails.

 

 

Conclusion

22              For those reasons, notwithstanding the forcefully put arguments of Mr McNerney, the appeal fails and is dismissed.