Quite often during an employee’s long term sickness absence an employer comes to the conclusion that it is able to cope in the employee's absence and as a result of which decides to make the employee redundant.

Ordinarily, most employers would think it safe to dismiss on the basis they are able to demonstrate a genuine redundancy scenario.  It often therefore comes as a surprise that making an employee redundant either during or following a period of disability related sickness absence can amount to discrimination arising from disability.

The law states that an employer should 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 demonstrate that the treatment is objectively justified by showing that it is a proportionate means of achieving a legitimate aim.

Last week, the Employment Appeal Tribunal (EAT) delivered its Judgment on a matter (Charlesworth –v- Dransfields Engineering Services Limited) which provides guidance to employers faced with this situation.  Mr Charlesworth had a period of absence from work due to developing renal cancer.  During his absence, his employer identified a way of restructuring the business so that Mr Charlesworth’s role would be made redundant, potentially saving the business up to £40,000.00 per annum.  Mr Charlesworth was subsequently made redundant and amongst other things argued that his dismissal amounted to discrimination arising from disability on the basis that there was a link between his disability related absence and his dismissal.  

The Tribunal initially found that although Mr Charlesworth’s sick leave had allowed his employer to establish that it could manage without him, it felt that this didn’t mean he was actually dismissed because of his absence and as a result of which his claim failed.  Mr Charlesworth appealed the decision, arguing that provided he could demonstrate his absence showed some cause or influence on his employer’s decision to make him redundant, that was enough to demonstrate that his dismissal arose as a consequence of his disability.

The EAT confirmed there is a two stage test when establishing whether discrimination arising from disability has occurred.  Firstly, you must ask whether the employee’s disability caused or resulted in “something” and secondly whether as a result of that “something” the employer treated the employee unfavourably.

The EAT went on to conclude that Mr Charlesworth’s disability was not sufficient enough to be the effective cause of his dismissal but was simply “part of the context” but was not the main reason for determining his role was redundant.

The point is an extremely subtle one. Technically, the decision means that an employee cannot rely on a loose cause or connection between the “something” (dismissal on redundancy grounds) and the unfavourable treatment which is a move more in favour of employers.  In practice however, it is difficult to identify many scenarios where it would still be safe to make an employee redundant where their role has been identified as being at risk of redundancy whilst they are off on long term disability related absence.

Perhaps the clearest example could be where for instance there is an ability to clearly identify an event resulting in a drop in work such as the loss of a contract whilst the employee is absent.  Otherwise however, employers should exercise caution when looking to make an employee redundant in circumstances such as this.  In practice, the key is to try and identify by other means that it can do without an employee rather than simply by virtue of the fact they appear to be coping well in the individual’s absence.