Can an employer fairly make an employee redundant following a period of ill health absence?

7 June, 2017
by: Cripps Pemberton Greenish

In Charlesworth v Dranfields Engineering Services Ltd the Employment Appeal Tribunal (EAT) considered this question.

The Facts

The Claimant was a branch manager of the Respondent company.  The company was underperforming and was looking to cut costs in 2012.  The Claimant was admitted to hospital with renal cancer in 2014 and was absent from work for approximately two months.  Whilst he was off, the company realised it could manage without the Claimant’s role and identified that it could make a saving of £40,000 per year by deleting his post and absorbing his responsibilities into other roles at the branch.  

Shortly after returning to work, the Claimant was made redundant following a consultation process. The Claimant brought a number of claims, including one of discrimination arising from disability, all of which were dismissed by the Employment Tribunal. The Claimant appealed on the basis that he was dismissed because of his absence and therefore this amounted to disability-related discrimination.

The Outcome

The EAT dismissed the Claimant’s appeal asserting that whilst it accepted there was a link between the Claimant’s absence and his dismissal, the redundancy process was not carried out because of the Claimant’s absence. The Claimant’s absence simply gave the Company the opportunity to realise they could manage without anybody carrying out his role.

What this means

Where companies have carried out a review of their business and decided that a particular role may not be needed, that role can potentially be deleted. This is a useful decision for employers, who might otherwise have assumed that making an employee redundant would always be disability discrimination in circumstances where the realisation of not needing a specific role occurs during an individual’s ill health absence.  

Although this is a useful decision for employers, the EAT’s judgment contained a warning.  Employers should think about the reason why they are dismissing an individual as there will be many cases with similar facts where the employee is dismissed because of their absence. If the employee’s absence itself is the reason for the decision to dismiss, the dismissal would then amount to disability-related discrimination.