The Employment Appeal Tribunal has held that an employer making an employee redundant after a two-month absence from work for cancer treatment was not discrimination, notwithstanding that the reason for the employee’s absence was disability-related.
Mr Charlesworth was a manager for Dransfields Engineering Services (DES). During his two months’ absence from work to undergo surgery for renal cancer, his employer found that his duties were absorbed elsewhere in the business and that the business managed fine without him. DES realised that by deleting Mr Charlesworth’s post it would be possible to save £40,000 and so it made Mr Charlesworth redundant upon his return to work full-time.
Mr Charlesworth brought a claim for disability-related discrimination contending that he was dismissed because he was absent and that the reason he was absent was because of his disability.
In a case for disability-related discrimination, the Claimant must prove a causative link between the act or omission complained of (in this case, dismissal) and his/her disability.
The EAT held that the tribunal was entitled to find that the reason for Mr Charlesworth’s dismissal was not his absence but costs savings and therefore that his dismissal was by reason of redundancy.
As readers may be wondering, the tribunal had found that there was a second link between health and dismissal (i.e. had Mr Charlesworth not been absent his employer would not have identified the cost saving) but the link was not strong enough. The tribunal had found that there were other ways that the employer might very well have identified it could make cost savings by deleting Mr Charlesworth’s post and therefore his absence was not the effective or operative cause of dismissal.
It is important to note in this case that since 2012, the business had not been achieving management’s desired profitability and had been on the lookout for costs savings. The business was able to produce clear evidence to satisfy the tribunal that this was the case.
Employers do sometimes find that it can manage without an employee who is absent for a significant amount of time. This can be in sickness but also maternity absence situations. The case reported here emphasises the importance of keeping clear and contemporaneous records of management meetings where concerns about profitability and ways to address them are considered.