What happens when an employer realises, during an employee’s long-term sickness absence, that they can manage quite well without the employee and decides, as a result, to make them redundant? Does this amount to discrimination arising from disability? The Employment Appeal Tribunal (EAT) has recently considered this conundrum and upheld an Employment Tribunal’s decision that the employee’s disability was not an operative cause of his redundancy dismissal (Charlesworth –v- Dransfields Engineering Services Ltd).

Background

An employer must not treat a person less favourably because of something arising in consequence of their disability than it treats, or would treat, another person without that disability, unless it can objectively justify the unfavourable treatment, by showing that it is a proportionate means of achieving a legitimate aim. An employee suffering from cancer is automatically deemed to be disabled from the day of diagnosis.

Facts

The employee, C, managed one of four branches of the employer’s engineering business. The business was not as profitable as it should be and the employer was looking for ways to save costs from 2012 onwards. In October 2014, C went into hospital for an operation for renal cancer, which caused him to be absent from work for about two months. During his absence, the employer identified that it could delete C’s role as branch manager and re-allocate his responsibilities amongst the existing staff at the branch. Doing so would save the company £40,000 each year. A few months after C had returned to work, the employer commenced a redundancy consultation process with him. No alternative to redundancy was found and C was eventually given notice of redundancy in spring 2015.

C brought a number of claims, including one of discrimination arising from disability, all of which were rejected by the Employment Tribunal. In relation to the claim of discrimination arising from disability, the Tribunal held that, although C’s sick leave had given the employer the opportunity to identify its ability to manage without him, this was not the same as saying that C was dismissed because of his absence. C’s absence was not an operative cause of his redundancy dismissal, it was merely the context which allowed the employer to identify a potential cost saving. C appealed to the EAT.

EAT decision

The EAT dismissed C’s appeal. The Tribunal had correctly applied the two-stage test previously identified by the EAT in another case – that is: (1) there must be ‘something’ arising in consequence of disability; and (2) the unfavourable treatment must be because of that ‘something’. The Tribunal had been entitled to find that C’s absence on sick leave merely provided the context for the employer to identify the potential to make cost savings by making his role redundant. The redundancy which followed was not because of C’s absence.

The EAT’s decision is available online.

Comment

The EAT’s decision clarifies and reaffirms previous EAT decisions on discrimination arising from disability. This is a useful decision for employers, who might otherwise have assumed that making an employee redundant in such circumstances would always be disability discrimination. It is easy to envisage that a similar scenario may also arise in the context of an employee on maternity leave if other staff absorb her duties and cope well in her absence. However, in that case, she would have first refusal of any suitable alternative work which is available.