Espie v Balfour Beatty Engineering Services UKEAT/0321/12/DM

Subjects: s.15 Discrimination – Arising in consequence of disability – Overlapping Illnesses – Requirement to refer to code of practice

C claimed that he was unfairly dismissed and discriminated against. The ET held that R did not discriminate against C but that C had been unfairly dismissed because of the unfair procedure that R had adopted. The ET awarded him compensation of £1,100. C appealed.

Facts

C was employed by R as a contracts manager. In July 2009 he was diagnosed with depression. He was signed off work with depression from October 2009 until July 2010. R accepted that C's depression was a disability. In September 2010 the company decided to reduce the number of contract managers within C's region from four to three. A redundancy process followed. The scoring criteria that were applied in the redundancy process had been agreed with the relevant trade unions. C achieved the lowest score.

The ET rejected his claim for discrimination and held that the dismissal was procedurally unfair. C appealed the decision of the ET on two grounds: firstly he argued that the pool for selection should have included other types of managers and that therefore the unfairness was not merely procedural (and consequently the remedy should have been larger); secondly, C argued that the ET had erred in finding that he had not been unlawfully discriminated against because of something arising in consequence of his disability.

The discrimination claim arose because one of the criterion for selection concerned attendance and time-keeping and was based on the number of days of absence. C's absence was rated as “poor“ because he had had more than two weeks‘ continuous absence. R stated that C's grading was poor because he had more than two weeks‘ absence by reason of his appendectomy and his recovery from it. The evidence was that R had disregarded C's absences due to depression. At the time of the appendectomy C was also off sick with depression and C's sick note referred to both depression and C's appendectomy. C argued that R had discriminated against him because of something arising in consequence of his disability under s.15, EA 2010.

Held

When considering the case of discrimination arising in consequence of disability, the EAT referred to the guidance given in the EHRC’s Code of Practice on employment. Paragraph 5.8 of the Code states: “The unfavourable treatment must be because of something that arises in consequence of the disability. This means that there must be a connection between whatever led to the unfavourable treatment and the disability.“

Since the ET had found that the unfavourable treatment arose because of C's absence by reason of his appendectomy it was correct to conclude that the treatment was not in consequence of or connected to C's disability. The appeal therefore failed and was dismissed.

Note: the EAT also referred to the long established rule that it is not an error of law for an ET not to explicitly refer to the Code of Practice.

Comment

There are not many EAT cases on discrimination under s.15 EA 2010. This case is interesting for that reason alone.

However, this case is also notable because the EAT refused to interfere with the finding of fact that R marked C down because he had time off for an appendectomy. This was the case even though the time off was notional. It was notional because C would not have been able to work anyway because of his depression. This judgment did not consider whether that position was sustainable or why R was entitled to take the rather artificial position of ascribing the absence to the appendectomy rather than the depression. It this simply a finding of fact?

The full transcript is here: http://www.bailii.org/uk/cases/UKEAT/2012/0321_12_3011.html