Disability discrimination: what happens if an employee's sick leave results in the identification of a redundancy situation?

Disability discrimination: what happens if an employees sick leave results in the identification of a redundancy situation?

In the recent case of Charlesworth v Dransfields Engineering Services Ltd, the Employment Appeal Tribunal (“EAT”) has concluded that, where an employee’s sickness absence allows his employer to identify that his role is no longer needed and that employee is subsequently made redundant, this does not necessarily amount to disability discrimination. The EAT found in this case that the employee’s absence was not an operative cause of the dismissal; it was merely the context.

Facts

Mr Charlesworth, who managed one of the four branches of Dransfields Engineering Services Ltd (DES), was absent from work for two months in October 2014 to receive cancer treatment. During this absence, DES realised that Mr Charlesworth’s responsibilities could be absorbed by other employees and his role was therefore not needed. As DES had been underperforming since 2012, the company was looking generally for cost saving opportunities, consequently identifying that, without Mr Charlesworth’s role, DES would save approximately £40,000 a year.

Mr Charlesworth returned to work full time after his absence, but was notified of his potential redundancy in March 2015. Although DES sought to find him an alternative role, no suitable vacancy was found. Mr Charlesworth was therefore made redundant in April 2015.

Mr Charlesworth bought several claims against DES, including a claim for discrimination because of something arising in consequence of his disability. The tribunal rejected this claim, finding that Mr Charlesworth’s absence was not an effective or operative cause of his dismissal, but simply allowed DES to identify that his role was unnecessary. Instead, they found the cause of his dismissal to be the realisation that the branch could manage without him.

Mr Charlesworth appealed to the EAT.

Decision

The EAT upheld the tribunal’s decision. They agreed that the absence was merely the occasion which allowed DES to identify its ability to manage without Mr Charlesworth, not the operative cause of his dismissal. The EAT stated that, even though there was a link between the absence and the dismissal, this was not the same as the absence causing the dismissal. The absence would not have inevitably led to the dismissal and DES could have come to the realisation that Mr Charlesworth’s role was no longer required in other ways.

Comments

This case provides some reassurance to employees as it indicates that it may be possible to make an employee redundant after a period of disability related sickness absence which allowed their employer to realise that their job role was not required, without this necessarily amounting to disability discrimination.

However, the judgement does stress that this will not always be the case and it will depend on the specific facts of the case. Employers should therefore take care to consider the precise reason for any dismissal and to follow a correct and fair redundancy process in these circumstances. 

Contact our experts for further advice

Kerry Garcia, Katie Green

Search our site