Espie v Balfour Beatty Engineering Services Ltd

In a redundancy selection case, the tribunal must decide whether the employer's choice of pool fell within the range of approaches open to a reasonable employer. It must not substitute its own view of the appropriate pool. A finding that the employer genuinely considered the issue and conducted the exercise in good faith may support that conclusion.

Under section 15(1)(a) of the Equality Act 2010, unfavourable treatment must be because of something arising in consequence of disability. Where an employer disregards disability-related absence but counts a separate, independent medical absence, the resulting detriment is not disability discrimination merely because both causes occurred during the same period of absence.

The claimant, a contracts manager, was selected for redundancy after a reorganisation reduced the number of such managers. The Employment Tribunal at Liverpool held that his dismissal was procedurally unfair, principally because of defects in consultation and redeployment, but limited compensation on a loss-of-chance basis.

It rejected his challenge to the redundancy pool and his claims of disability and age discrimination. The claimant appealed only the selection-pool issue and the dismissal of the disability discrimination claim. His depressive illness was a disability. During the same prolonged absence, he also underwent an appendectomy which would independently have required several weeks away from work. The central issues were whether the pool was unreasonable and whether counting the appendix-related absence contravened section 15 of the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal made no error of law in upholding the employer's redundancy pool. The claimant's case before the tribunal was that project, senior project and operations managers performed the same or very similar work. The tribunal found that the jobs were not interchangeable and that there was no reciprocity between them.

2. The Employment Appeal Tribunal held that the tribunal had not confined itself wrongly to interchangeability. Read fairly, it had considered whether the employer had genuinely addressed the composition of the pool and had avoided substituting its own assessment. Its conclusion that the pool was within the range open to a reasonable employer was therefore sustainable.

3. The tribunal also made sustainable findings on section 15(1)(a) of the Equality Act 2010. The unfavourable treatment was the poor attendance score, which led to redundancy selection. The employer had disregarded absence caused by depression. It counted only absence of more than two weeks caused by the appendectomy and recovery.

4. The relevant “something” was accordingly the appendix-related absence. It arose from a separate medical condition, not in consequence of the claimant's disability. The fact that the two causes appeared on the same medical certificate and overlapped in time did not establish the required connection with disability. The tribunal was entitled to reach that factual conclusion and had correctly applied section 15(1)(a).

5. Failure expressly to cite the Equality Act Code of Practice did not amount to an error of law. The tribunal had referred to the statutory provision, and the cited Code passages expressed the same principle in different language.

• Employment Appeal Tribunal: appeal dismissed: [2012] UKEAT 0321_12_3011.
• Employment Tribunal at Liverpool: held the dismissal procedurally unfair and awarded limited compensation, but rejected the challenges to the redundancy pool and the disability and age discrimination claims.