The Employment Appeal Tribunal (“EAT”) has found that an employer did not unlawfully discriminate against one of its former employees when it dismissed him for redundancy, following a period of absence for medical treatment.

Background

The Equality Act 2010 provides employees and workers with wide-ranging protection from disability discrimination, including the right not to be treated unfavourably by their employer because of something arising in consequence of their disability. This is commonly known as “discrimination arising from disability”.

The employer can justify such unfavourable treatment if it can show it was a proportionate means of achieving a legitimate aim. However, the burden is on the employer to prove justification, following a detailed assessment of its working practices and relevant business considerations.

In Charlesworth v. Dransfield Engineering Services Ltd, Mr Charlesworth was employed as a Branch Manager in Rotherham. His employer’s business was struggling to make a profit and it was looking to make costs savings from 2012 onwards.

In the summer of 2014, Mr Charlesworth developed renal cancer and, following an operation in October 2014, he was off work until mid-December. During his period of absence, the employer identified the possibility of re-structuring its business operation in a way that removed Mr Charlesworth’s post, saving the business up to £40,000 per year. Following a series of consultation meetings, Mr Charlesworth was dismissed by reason of redundancy in April 2015.

Mr Charlesworth brought claims against his employer for unfair dismissal, direct disability discrimination and discrimination arising from disability.

The Employment Tribunal (“ET”) dismissed his claims. In relation to Mr Charlesworth’s claim for discrimination arising from disability, the ET acknowledged that there was a link between his absence (which arose as a result of his disability) and his dismissal. His absence gave his employer an opportunity to recognise that it could manage without his role. However, the ET held that such absence was not an effective or operative cause of his dismissal. Mr Charlesworth appealed the decision.

EAT decision

The EAT held that absence is an obvious consequence of illness caused by disability and that there was a link between Mr Charlesworth’s absence and his subsequent dismissal.

Notwithstanding this, the EAT agreed with the ET that the unfavourable treatment suffered by Mr Charlesworth (i.e. his dismissal) did not arise because of his disability-related absence. The EAT justified this on the basis that the employer may equally have concluded that they could not cope without Mr Charlesworth’s role during his period of absence and hired a temporary replacement to fill his position in the interim.

As a result, the EAT concluded that that Mr Charlesworth’s absence did not inevitably lead to his dismissal. Accordingly, the appeal failed.

Comment

This decision is difficult to reconcile with established case law, which confirms that an employer’s reasons (whether conscious or unconscious) for treating an employee unfavourably are irrelevant. It is also a surprising departure from the often “pro-employee” stance adopted by the Tribunals in disability discrimination cases in recent years.

On the face of it, this case may indicate that the pendulum has now swung in the favour of employers. However, the EAT emphasised that each case will turn on its particular facts. For this reason, we recommend that employers exercise caution before dismissing employees in similar circumstances.

In particular, a strong business case will be needed to demonstrate that: (a) the employer has a legitimate aim in creating efficiencies or reducing cost; and (b) dismissal is a proportionate means of achieving that aim (as opposed to another course of action, such as redeployment). In practice, this is likely to remain a relatively high (although not insurmountable) hurdle.