Summary: If an employee’s long term sickness absence shows lack of need for the role and the employer make that role redundant, does this amount to disability discrimination?
No, says the EAT in Charlesworth -v- Dransfields Engineering Services Ltd available here.
Facts: Mr Charlesworth, the employee, managed one of four branches of the employer’s engineering business. The business was not as profitable as it should be and the employer was looking for ways to save costs from 2012 onwards. In October 2014, Mr Charlesworth went into hospital for an operation for renal cancer, which caused him to be absent from work for about two months. During his absence, the employer identified that it could delete Mr Charlesworth’s role as branch manager and re-allocate his responsibilities amongst the existing staff at the branch. Doing so would save the company £40,000 each year. A few months after Mr Charlesworth had returned to work, the employer commenced a redundancy consultation process with him. No alternative to redundancy was found and Mr Charlesworth was eventually given notice of redundancy in spring 2015.
Mr Charlesworth brought a number of claims, including one of discrimination arising from disability, all of which were rejected by the Tribunal. In relation to the claim of discrimination arising from disability, the Tribunal held that, although Mr Charlesworth’s sick leave had given the employer the opportunity to identify its ability to manage without him, this was not the same as saying that Mr Charlesworth was dismissed because of his absence. Mr Charlesworth’s absence was not an operative cause of his redundancy dismissal, it was merely the context which allowed the employer to identify a potential cost saving. Mr Charlesworth appealed to the EAT.
The EAT dismissed Mr Charlesworth’s appeal. The Tribunal had correctly applied the two-stage test previously identified by the EAT in another case – that is: (1) there must be ‘something’ arising in consequence of disability; and (2) the unfavourable treatment must be because of that ‘something’. The Tribunal had been entitled to find that Mr Charlesworth’s absence on sick leave merely provided the context for the employer to identify the potential to make cost savings by making his role redundant. The redundancy which followed was not because of Mr Charlesworth’s absence.
Implications: This is a helpful decision for employers, as it shows that in the right circumstances an employee can be made redundant following long term sickness absence without it being grounds for a successful disability discrimination claim.
However, it is important to be sure that the absence is long enough that the conclusion that you could do without the employee on a permanent basis is reasonable and you have not, for example, managed by conscripting help from other departments over that period. Remember also that you will need to show a reasonable process and that it was that particular employee whose role had been demonstrated by the absence to be surplus to requirements.
It is easy to envisage that a similar scenario may also arise in the context of an employee on maternity leave if other staff absorb her duties and cope well in her absence. However, we would urge caution before relying on this decision, as it is difficult to imagine that a Tribunal would take the same approach if faced with a similar case involving maternity leave. An employer in such a case is unlikely to be able to successfully argue that there were other hypothetical ways it could have realised that the employee’s post was redundant and her maternity leave was therefore not the cause of its decision. The other difference to bear in mind is that the employee on maternity leave would need to have first refusal of any suitable alternative work which is available.