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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 19 JUN 2017

Is it possible to make a disabled employee redundant if the risk of redundancy is identified as a result of their absence on sick leave?

Is it possible to make a disabled employee redundant if the risk of redundancy is identified as a result of their absence on sick leave?
Eleanor Boyd
Veale Wasbrough Vizards

The recent case of Charlesworth v Dransfields Engineering Services Ltd suggests that it is if the absence is not the operative cause of the dismissal, but only the context.

This means that the facts of each case will be key and the risk to employers in this area remains high.

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Best Practice

  • Discrimination arising from disability occurs where: A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
  • Previous case law has established that the 'something arising' in consequence of disability need not be the main or sole cause of the unfavourable treatment, but must be the effective cause to establish this claim.
  • Tribunals have previously only required a loose causal connection or association between the dismissal or unfavourable treatment, and the 'something arising in consequence of disability'.
  • In this recent decision the Employment Appeal Tribunal (EAT) held, on the particular facts, that redundancy following sickness absence was not discriminatory. It concluded that the claimant's absence was not an effective or operative cause of his dismissal, but merely the occasion whereby his employer was able to identify that his post was capable of being deleted and responsibilities absorbed by others. This was something it may well have identified in other circumstances.
  • The case does provide some reassurance to employers that if the risk of redundancy is identified during a disabled employee's absence it will be possible to dismiss without being discriminatory. However, in its judgment, the EAT noted that every case will turn on its own particular facts and it would appear that the risks in this area remain high.

Charlesworth v Dransfields Engineering Services Ltd

Mr Charlesworth was employed as a branch manager with Dransfields Engineering Services Ltd (DES). DES was operating at a loss, and from 2012 onwards was looking to cut costs. In 2014, Mr Charlesworth developed renal cancer and took sickness leave for two months. During this time DES identified that the business could operate effectively without Mr Charlesworth in his role. He was subsequently made redundant in 2015. Mr Charlesworth did not appeal this decision, but later brought a claim for unfair dismissal, direct disability discrimination and discrimination arising from disability.

The Outcome

The Employment Tribunal (ET) dismissed his claims. It accepted that there was a link between his disability-related absence and his dismissal, as this had enabled his employer to identify that his branch could function without anyone covering his role. However, the ET held that this was merely the contextual, rather than causative reason for his dismissal.

Mr Charlesworth appealed this decision on grounds that the tribunal failed to apply the correct test for causation under section 15 of the Equality Act 2010.

The EAT, dismissed the appeal. It considered that the tribunal had correctly applied the test from section 15 Equality Act 2010, and noted that this section did not require the Claimant's disability to be the sole or main cause, provided it was an effective cause.

The EAT held that the ET was entitled to find that the claimant's sick leave was not the effective cause of his dismissal in this case. However, it held that there would be cases where sickness absence would be likely to be an effective cause of a decision to dismiss (even if not the main cause). Each case will turn on its own particular facts.