Is a redundancy after sickness absence discriminatory?

Discrimination arising from a disability makes it unlawful for an employer to treat an employee unfavourably because of something arising in consequence of their disability. There has been a significant increase in cases brought against employers where decisions have been reached because of an individual’s absence as this can be significantly affected by disability. A recent case has examined whether an employer’s realisation they could “do without” an employee’s role during their sickness absence was discriminatory.

In Charlesworth v Dransfields Engineering Services, the employee worked as a branch manager for the business which had been struggling with profitability and was looking to make cost savings. In October 2014, he was absent for two months because he was receiving treatment for renal cancer. During the absence, the company realised that they could absorb his responsibilities in to other job roles; making a saving of around £40,000 each year. In April 2015, the employee was made redundant following a consultation process. The employee made a number of claims including a claim of discrimination arising from a disability under s15 Equality Act 2010.

The employment tribunal (ET) found that there was a link between the claimant’s absence and the fact he was dismissed as his sickness absence allowed the company the opportunity to observe the way his work was dealt with and showed that they could manage without his position. However, this link is not the same as the claimant’s disability being the cause of the action, therefore the defendant was not dismissed because of his absence.

The claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that the ET had not applied the correct test. The EAT commented that there is a distinction to be drawn between the context of events and the cause of those events. In some cases, an absence will be the cause of the conclusion that a business can manage without a particular employee but, in some circumstances, it will merely be part of the context of the situation. In this particular case, the absence was not an effective cause of the employee’s dismissal but provided the occasion when they were able to identify that his post was not necessary and this could have well been identified in other ways. Therefore, the dismissal was caused by the view that the business could manage without the employee, and not his disability related absence.

What this means for employers:

• An increasing number of claims in this area shows the importance for employers to give careful consideration to decisions regarding a disabled employee’s absence from the workplace;
• Discrimination arising from a disability can be justified, so long as employers can show their treatment of the employee was a proportionate means of achieving a legitimate aim i.e. the measures taken were reasonably necessary to achieve their aim;
• The difference between the ‘context’ and the ‘cause’ of a decision is likely to be a grey area; it will be for the employer to show that their disability was not a cause of any decision to dismiss;
• Although the employer won this case, it will be difficult for employers to prove dismissal of a disabled employee by reason of capability due to their long term sickness absence was not discrimination arising from a disability. However, in these circumstances, the employer should have an objective business aim to justify this decision

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