Can redundancy which arises from absence amount to disability discrimination?
This was considered in the case of Charlesworth v Dransfields Engineering Services Limited.
Mr Charlesworth was employed by Dransfields Engineering Services Limited as a Branch Manager. Since 2012, the business had not been achieving the profitability that the company desired. Mr Charlesworth was absent from work to receive treatment for cancer from October 2014 for about two months. During his absence, the company identified the opportunity to save around £40,000 by absorbing his responsibilities into other roles within the branch.
The company notified Mr Charlesworth of a potential redundancy situation in March 2015. They went through a formal consultation process and, although alternative employment was considered, no suitable vacancy could be identified. Mr Charlesworth’s employment was terminated on the grounds of redundancy. He brought claims for unfair dismissal, direct disability discrimination and discrimination arising from his disability.
The Equality Act 2010 states that:
A person (A) discriminates against a disabled person (B) if:
- 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.
The question to determine is whether the disabled person has been treated unfavourably because of something arising in consequence of their disability. Absence as a result of illness caused by a disability is an obvious consequence.
The Employment Judge rejected the claims. Specifically, in relation to the claim for discrimination because of something arising in consequence of his disability, the Tribunal noted there was some link between Mr Charlesworth’s absence and his dismissal because it was his absence which gave the company an opportunity to identify the ability to manage without him.
The Tribunal, however, went on to state that it was not the same as saying that the Claimant was dismissed because of his absence. In the Tribunal’s view, the Claimant’s absence was not an effective or operative cause of his dismissal, it merely allowed the company to identify something which might very well have been identified in other ways and in other circumstances. It specifically stated:
It was the occasion which allowed the Respondent to identify something which it might very well have identified in other ways and in other circumstances and the Tribunal takes the view therefore that the matter that caused the Claimant’s dismissal was the Respondent’s view that it could so without him.
The Claimant appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal dismissed the appeal and agreed with the Tribunal and concluded that the Claimant’s absence was merely because of the Company’s ability to identify that it could manage without him and was not the cause of his dismissal.
This case provides helpful guidance to employers when faced with similar situations. The decision confirms that there may be a difference between the circumstances of the treatment and the causal link for that treatment.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.