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8th June 2017

Can an employee be dismissed during long term ill health absence?

8th June 2017

Can an employee be dismissed during long term ill health absence?

Clive Dobbin

Posted: 8th June 2017

T: 023 8048 2370

E: Email Me

Co-authored by Sarah Hayes, Trainee Solicitor and Clive Dobbin, Head of Employment Team.

If an employee is absent on long term sickness and during this time, the employer realises that the organisation is managing without them, are they entitled to make the employee redundant? Furthermore, if the employee is disabled, does this constitute discrimination?

These were the interesting questions raised in Charlesworth v Dransfields Engineering Services Ltd, in which the Employment Appeal Tribunal (EAT) provided guidance on an employee that had been absent from work for two months whilst receiving treatment for cancer.

Background

The Claimant was employed as a Branch Manager within the Respondent’s engineering company. For commercial reasons, the Respondent intended to make cost savings from 2012 onwards. In July 2014, the Claimant sadly developed renal cancer and in October 2014 he was admitted to hospital for an operation. The Claimant returned to work full time in December 2014.

Whilst he was absent, the Respondent identified the possibility of restructuring the company in a way that removed the Claimant’s role and absorbed his responsibilities into other roles, thereby saving £40,000 per annum. In March 2015, the Claimant was told that he was in a potential redundancy situation and was given the opportunity to suggest ways in which the redundancy could be avoided. There were no suitable alternative vacancies found and the Claimant’s employment terminated in April 2015.

Under the Equality Act 2010, cancer is identified as a disability. The Claimant brought claims of unfair dismissal, direct disability discrimination and discrimination because of something arising in consequence of disability. He argued that he was the victim of a sham, there being no redundancy situation, and he was dismissed because of his disability.

Employment Tribunal

All three claims were rejected by the Employment Tribunal for the following reasons:
1. Direct discrimination
The Tribunal found that the Respondent did not treat and would not have treated someone without a disability any different from the way in which the Claimant was treated.

2. Unfair Dismissal
The Tribunal accepted that the dismissal related to redundancy and had been conducted fairly.

3. Discrimination because of something arising in consequence of disability
The Tribunal held that, although the Claimant’s sick leave had given the employer the opportunity to identify its ability to manage without him, this was not the same as saying that the Claimant was dismissed because of his absence. The Claimant’s absence was not an operative cause of his redundancy dismissal, it was merely the context which allowed the employer to identify a potential cost saving.

The Claimant appealed to the EAT.

Employment Appeal Tribunal

The EAT dismissed the Claimant’s appeal. It held that the Tribunal had correctly applied the two-stage causation test identified in Basildon & Thurrock NHS Foundation Trust v Weerasinghe:

(1) There must be “something” arising in consequence of disability; and
(2) The unfavourable treatment must be “because of” that “something”.

Mrs Justice Simler, President of the EAT, stated that provided the “something” is an effective cause (though it need not be the sole of the main cause of the unfavourable treatment) the causal test is established. Applying this to the case, she concluded that the Tribunal had been entitled to find that the Claimant’s absence was merely the occasion on which the Respondent was able to identify its ability to manage without the Claimant, not the effective cause of the Claimant’s dismissal.

What does this mean for employers?

Whilst this case is reassuring for employers, Justice Simler emphasised that every case will depend on its own particular facts.  The EAT distinguished between cases where absence is merely part of the context for dismissal and those where it is an effective cause.

It is vital for employers to clearly identify why they are dismissing an employee. If an employer realises that they can manage without a particular role during a period of ill health absence, they can potentially fairly dismiss in a non-discriminatory way, providing that they ensure a full and fair redundancy process is followed.

This is a surprisingly employer friendly case, and bucks the trend of recent case law which has largely been claimant-friendly with apparently only a loose causal connection between the “something” and the unfavourable treatment required. See, for example, Risby v London Borough of Waltham Forest, where Mr Risby was dismissed following an angry outburst. His short temper was a personality trait unconnected with his disability. However, the EAT considered that his discrimination ‘arising from’ claim was made out because he lost his temper on finding out that he could not access a venue in his wheelchair. 

Therefore whilst this case is useful it should be treated with caution, and should not be seen as a green light to allow an employer to automatically dismiss an employee if they realise they can cope without the employee whilst the employee is off work due to illness, or other reasons such as maternity leave.  For example, it is difficult to imagine that a tribunal would take the same approach if faced with a similar case where an employer realises while an employee is off on maternity leave that it can do without her post.

As ever, if an employer wishes to dismiss an employee in such circumstances then they should seek specialist employment advice.

At Paris Smith LLP we have expertise in providing advice on discrimination queries. Please do not hesitate to contact us if you have any questions relating to this article or any discrimination matter.

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Clive Dobbin

Posted: 8th June 2017

T: 023 8048 2370

E: Email Me