Disability discrimination and redundancy

What was the case about?

In Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16/JOJ, the employment appeal tribunal considered whether making an employee redundant following long term illness due to cancer amounted to disability discrimination.

The legal background

A definition of discrimination can be found in the Equality Act 2010.

In general terms an employer cannot treat an employee with a disability less favourably than they would treat an employee without a disability, unless it can be objectively justified and shown that the treatment was a proportionate means of achieving a legitimate aim.

An employee suffering from cancer is automatically deemed to be disabled from the day of diagnosis.

The case facts

• Mr Charlesworth managed one of four branches of the employer’s engineering business.
• The business was not as profitable as it should be.
• From 2012 onwards the employer was looking for ways to save costs for the business.
• In October 2014 Mr Charlesworth had to go in to hospital for an operation for renal cancer.
• He was absent from work for about two months.
• During Mr Charlesworth’s absence the employer discovered it would be possible to eliminate Mr Charlesworth’s role as branch manager and delegate the responsibilities between the remaining staff. To do so would save the employer £40,000 per year.
• A few months after Mr Charlesworth returned to his job as branch manager his employer began a redundancy consultation process with him.
• There was no other alternative role within the business found for Mr Charlesworth and he was therefore made redundant in Spring 2015.

The employment tribunal decision

Mr Charlesworth brought several claims to the employment tribunal including the claim that he was discriminated against due to his disability.

The employment tribunal held that, in relation to the argument for disability discrimination, although Mr Charlesworth’s absence had helped the employer to identify the potential of the branch continuing to operate without him, this was not the same as saying Mr Charlesworth was dismissed because of his absence. The tribunal decided that Mr Charlesworth’s absence was not an operative cause of the redundancy but was merely the context which enabled the employer the opportunity to identify the potential cost saving.

Mr Charlesworth appealed this decision.

The employment appeal tribunal decision

The employment appeal tribunal dismissed the appeal.

The found that the tribunal had correctly applied the two stage test which had been previously identified by the employment appeal tribunal in a previous case. The first stage was that there must be ‘something’ arising in consequence of disability and the second stage was that the unfavourable treatment must be because of that ‘something’.

The tribunal were entitled to draw the conclusion that the absence was merely the context which enabled the employer the opportunity to identify the potential cost saving by making Mr Charlesworth redundant. The redundancy which followed was therefore not because of the absence.

Case comment

This case is of particular assistance to employers because it shows that if an employer makes an employee redundant shortly after long term sickness absence, it does not necessarily follow that the employee will then be able to successfully claim disability discrimination.

A similar situation could arise when an employee is absent on maternity leave. However, it is unknown whether an employment tribunal would make the same decision in such a case and each case is of course dependent on its own facts and circumstances.  It should also be remembered that the employer has a statutory obligation to offer the employee on maternity leave any suitable alternative available role within the organisation.

How can we help?

Do you require any legal advice regarding disability discrimination and redundancy?

If you have any questions about this article or if you require any other employment law advice, we are here to help.

You can contact us by phone on 01343 544077 or you can send us a Free Online Enquiry.

Note: This article was originally published on the Moray Employment Law website in July 2017.