06 June 2017

We have often been asked to advise employers in one difficult scenario: an employee has been off sick with a disability related illness, or is on maternity leave, and in their absence the employer realises that the employee actually did very little, even when at work, and that their duties could easily be absorbed by others in the company.

Had the employee not been absent due to disability/childbirth, the employer would not have realised this, and employment would have continued. Would a redundancy dismissal be discriminatory?

The recent Employment Appeal Tribunal (“EAT”) decision in Charlesworth v Dransfields Engineering Services Ltd deals with this in the context of a disability related absence. The employee was off for 2 months for surgery in relation to cancer. In his absence the employer realised he could save the employee’s £40,000 salary by assigning his duties permanently to others, and making the employee redundant. This was a unique post and there were no other roles he could take on – he was duly dismissed for redundancy following his return to work. The tribunal had to consider whether a redundancy dismissal would be discrimination for “something arising in consequence of a disability”. The employee argued that his absence was an “ingredient” in his dismissal, and that there was sufficient connection for this to be unlawful treatment.

Those who attended our recent seminar on disability discrimination will be aware of the wide interpretation being given to this type of claim by the tribunals, so that if there is some causal link between the disability and the unfavourable treatment, this may well be sufficient connection for there to be discrimination, which will be unlawful unless it can be justified.

The EAT in this case, however, upheld the employment tribunal’s finding that the dismissal of Mr Charlesworth was not discrimination “for something arising in consequence” of disability. It was true that the disability related absence was part of the context of the decision, but there was insufficient causation. The absence simply led to the employer identifying something which it might very well have identified in other ways, i.e. that it could manage without him. The tribunal had been entitled to decide that the absence was not an “operative” or “effective” cause of the redundancy dismissal. It was necessary that the treatment was in some way “because of” the absence (even if not the sole reason) but in this case that test was not met.

This is an important decision in relation to a thorny point, but employers should of course be very careful when dealing with any employee who has a disability and/or disability related absences. Expert advice should be obtained.

Contact: Douglas Strang Senior Associate dst@bto.co.uk T. 0141 221 8012