Case Report: Redundancy during sick leave

Is it unlawful discrimination to make someone redundant who is absent on sick leave, if the employee is off sick due to a disability related reason?

Possibly, but not necessarily said the Employment Appeal Tribunal in the case of Charlesworth v Dransfields Engineering Services Ltd.

Mr. Charlesworth was absent from work pending his treatment for cancer. During the time he was off sick, the employer realised that it could restructure the business in a way that deleted Mr. Charlesworth’s post.  Mr. Charlesworth’s claim alleged that because the employer realised it could continue without his post at a time he was off sick for a disability related reason, that meant he had been discriminated against by being dismissed for a reason connected with his disability, namely his sickness absence.

The Employment Tribunal accepted that there was a link between his absence and the fact he was dismissed because it was his absence that gave the employer an opportunity to identify the ability to manage without him performing his job, but that did not amount to the same as saying that he was dismissed because of his absence. They found that it was the employer’s view that they could do without him which was the cause of him being made redundant.

The Employment Appeal Tribunal held that the original Tribunal had drawn a distinction between the context within which the events occurred and the actual cause of the decision to make him redundant

 There might be other cases where an employee’s absence is the cause of the decision to make him redundant.  In those cases a Tribunal would need to then consider whether the employer could justify the dismissal by showing the redundancy was a proportionate means of achieving a legitimate aim.

Practical implications

Employers should proceed with care when considering making an employee redundant while they are on sick leave (or maternity leave). It is possible to fairly make an employee redundant whilst they are absent from work, but the employee will likely believe it was because of their absence, so an employer will need to consider very carefully whether the decision to make an employee redundant was because of their absence, and if not that they can be confident of proving that absence was just the context rather than being a cause of the decision. If employers are considering making an employee with a “protected characteristic” (e.g. disability or pregnant) redundant they must not only ensure they are not unlawfully discriminating but also that they are acting fairly. Employees who are off work during the course of a redundancy process are entitled to the same consultation process as employee who are attending work and a failure to follow a fair procedure can make the dismissal unfair, even if there is a genuine redundancy situation.

The case report is at http://www.bailii.org/uk/cases/UKEAT/2017/0197_16_1201.html