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Is it disability discrimination to make someone redundant following sickness absence?
Over the years, case law has helped Tribunals and Employers understand the implications of their processes and procedures and how they correlate with the statute in force. A twofold test which was previously established by Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14 outlined the following criteria for whether discrimination arising from disability applied, namely:
- Did the claimant's disability cause, have the consequence of, or result in, "something"?
- Did the employer treat the claimant unfavourably because of that "something"?
This was then further developed by the case of Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15, in which the EAT held there only needed to be a loose connection between the employee’s disability and unfavourable treatment.
As a result, following the case of Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16 the question, therefore, arose as to whether redundancy following sickness absence constituted disability discrimination?
Mr Charlesworth (the Claimant) was employed in the capacity of a Branch Manager at Dransfields Engineering Services Ltd (DES), which had been struggling financially since 2012. In 2014, unfortunately, the Claimant developed renal cancer and therefore was off work on long term sickness from October to December 2014. During this period, the Operations Manager proposed a restructure of the business, for cost effective and operational efficiencies, however, this would result in the deletion of the Claimant’s role. It would also generate a potential cost saving of £40,000 per year.
As a result, following a redundancy consultation in April 2015, the Claimant was made redundant from the business. The Claimant did not appeal the decision but instead sought to pursue claims of unfair dismissal, direct disability discrimination and discrimination arising from disability. The Tribunal dismissed his claims and held that although there was a connection between his disability related absence and his dismissal, as DES were able to determine that the business could function without this role, this was not sufficient so as to claim that the Claimant was dismissed because of his sickness absence. The Claimant appealed the decision.
At appeal, the EAT concluded that the influence on the decision needed to be significant not merely present. It was held that the Claimant needed to show that his absence was the effective cause of the reason to dismiss, however, the facts before the Tribunal concluded that this was not the case. It was held that whilst the absence formed the context for his dismissal, i.e. the absence highlighting that the Company did not need to replace the role at a time of financial difficulty, this alone may not suffice to amount to discrimination.
Note for Employers
Whilst this is a positive result for Employers, it is worth noting that this does not mean any future sickness absences cases can be treated in the same fashion. The purpose of Charlesworth was to clarify the ambiguity of section 15 of the Equality Act 2010 to distinguish the facts of an employee’s unfavourable treatment and the reason for this. Notably, the case is fact specific, taking into account the financial stability of the Company and other factors and therefore is not a catch all for future cases. Therefore although Employers should be encouraged by the result, this should not deter them from ensuring a clear and proportionate process is followed in order to reduce their exposure to claims of discrimination.
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