Is redundancy following disability-related, long-term absence disability discrimination?

Charlesworth v Dransfields Engineering Services

While an employee’s absence for cancer treatment was the context for his employer deciding to make his role redundant, it was not the cause of his dismissal – and therefore didn’t amount to discrimination because of something arising in consequence of his disability.

This case deals with the not uncommon situation where an employer discovers it can manage without a particular role where the job holder is off work for some time. Essentially the issue is whether, if the absence is disability-related, it inevitably follows that a subsequent redundancy must be disability discrimination.

Mr Charlesworth managed one of four branches of DES’s engineering business. The business wasn’t as profitable as it should be and DES was actively looking to make cost savings. Mr Charlesworth had an operation for renal cancer and was off sick for two months. While he was away DES found it could delete his post, redistribute his work among other staff, and make savings of £40,000. Mr Charlesworth was made redundant some three months after returning to work. Among the tribunal claims he brought was one for discrimination arising from disability (s. 15 of the Equality Act 2010). This was dismissed by a tribunal and he appealed.

The EAT upheld the tribunal’s decision. Mr Charlesworth argued that because his absence led to DES identifying the redundancy possibility, it had to be disability-related discrimination because one caused the other. Not necessarily so said the EAT. The tribunal had correctly applied the two-stage test previously identified by the EAT in another case:

1. there must be ‘something’ arising in consequence of disability, and
2. the unfavourable treatment must be because of that ‘something’

Although Mr Charlesworth’s sick leave had given DES 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. His absence was not an operative cause of his redundancy dismissal, it was merely the context which allowed DES to identify a potential cost saving.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0197_16_1201.html

Comment

On the face of it, this is an employer-friendly decision. But a word of warning. All cases depend on their particular facts and an over-reliance on this decision is not be recommended. The key question will always be - what is the reason for dismissal? Here, on the evidence, the tribunal found itself able to distinguish between context and cause. This will often however be a very grey area. The EAT in this case commented that there will no doubt be many cases with similar facts where an absence is the effective cause of a decision to dismiss - which would then be disability-related discrimination and unlawful if not justified.