The EAT has held that it was not discriminatory to make a disabled employee redundant following a period of sickness absence during which his employer had realised it could manage without him.

The Facts

Mr Charlesworth was employed by Dransfields Engineering Services Ltd as a depot manager. The business was not as profitable as it should have been, and Dransfields had been on the lookout for ways to cut costs from 2012.

In 2014, Mr Charlesworth was diagnosed with cancer, and he was off work for about two months. When he returned to work, he was fit and able to fulfil his role. During the time that Mr Charlesworth was absent, the operations manager identified a way of saving costs by deleting Mr Charlesworth's role of branch manager. After an individual consultation procedure, Mr Charlesworth was made redundant.

Mr Charlesworth claimed that he had suffered direct discrimination, arguing that there was no redundancy situation, and he was the victim of a sham. This claim was rejected by the Tribunal. He brought an unfair dismissal claim, and the Tribunal found his dismissal to have been fair.

Mr Charlesworth also claimed that he had been discriminated against for a reason arising from a disability. The Tribunal referred to there being some link between his absence and the fact that he was dismissed because it was his absence that had given the company the opportunity to manage without Mr Charlesworth performing the role of branch manager. However, the Tribunal held that this did not amount to the same as saying that he was dismissed because of his absence. The Tribunal held that his absence was not an effective or operative cause of his dismissal, and that the dismissal was caused by Dransfield's view that "it could do without him". He had not therefore been discriminated against.

Mr Charlesworth appealed, and the EAT dismissed his appeal.

The EAT explained that, in some cases, the employee's absence will lead the employer to conclude that it is able to manage without them. If the employee's absence is an effective cause of the dismissal (even if not the main or the sole cause of the dismissal) the dismissal will be discriminatory (subject to justification). However, there may also be cases where the employee's sickness absence is part of the context of the dismissal, and not an effective cause. If the absence is not an effective cause, it will not be discriminatory.

What does this mean for employers?

Recent judgments in cases of discrimination arising from a disability have been employee friendly, showing that claimants only have to show a loose causal connection between the "something" arising from a disability (for example, sickness absence arising from a disability) and the unfavourable treatment. This judgment (while it does not overturn earlier decisions) is more employer friendly, showing that the "something" has to be an effective cause of the treatment, even if not the main or sole cause.

However, there is a fine line between cases where sickness absence is an effective cause of a dismissal and where it provides context for the dismissal, and this will be very fact specific. Employers should be very cautious if they plan to dismiss employees in circumstances where they realise, during disability related absence, that they can do without the employee.

Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16