An employer had not discriminated against an employee when it made him redundant after identifying that it could manage without him when he was off work sick for cancer treatment. In order to succeed in a claim of discrimination arising from disability, it was necessary to show that the employee’s absence was an effective cause of his employer’s decision to dismiss him. The employment tribunal had been entitled to conclude that his absence was merely the occasion on which his employer was able to identify its ability to manage without him, and was not the cause of his dismissal.
In Charlesworth v Dransfields Engineering Services Ltd, Mr Charlesworth managed DES’s Rotherham branch. DES’s business was not as profitable as desired and it was on the lookout for costs savings from 2012 onwards. In October 2014, Mr Charlesworth went into hospital for a cancer operation and was off work sick for two months, following which he returned full-time. Whilst he was absent, the company identified the opportunity to save £40,000 by deleting his post and absorbing his responsibilities into other roles at the branch. It notified him of his potential redundancy in March 2015 and, following consultation, gave him notice of termination on 28 April.
He claimed discrimination arising from disability, amongst other things. The employment tribunal rejected his claim. Whilst there was a link between his absence and his dismissal (because his absence gave DES an opportunity to identify that it could manage without him), this was not sufficient. It was necessary to show that DES dismissed him because of his disability-related absence.
Mr Charlesworth appealed, arguing that a looser connection between his absence and dismissal was sufficient.
The Employment Appeal Tribunal dismissed his appeal. It ruled that his absence had to be a significant influence operating on the mind of the alleged discriminator, so that it amounted to an effective cause of his dismissal (even if not the sole or main cause). The employment tribunal had applied the correct test and had been entitled to conclude that Mr Charlesworth’s absence was merely the occasion on which DES was able to identify its ability to manage without him, not the cause of his dismissal.
This is a helpful decision for employers but should be approached with a degree of caution. Where disability-related absence is not an effective or operative cause of the employee’s unfavourable treatment, a claim of discrimination arising from disability will not succeed. Nevertheless each case will turn on its own facts. The Employment Appeal Tribunal said that there will be many cases where an employee’s absence causes the employer to conclude that it is able to manage without them and the absence will be an effective cause of the dismissal. However, this did not detract from the possibility that in other cases, the absence will merely be part of the context in which the decision is taken and not an effective cause.
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