The employer can be confident that the business no longer requires the role but in such a scenario would the dismissal be discriminatory?
In the case of Charlesworth v Dransfields Engineering Services Ltd Mr Charlesworth was absent from October to December 2014 due to cancer. His employer was not profitable and had been looking to make savings since 2012. During the time Mr Charlesworth was absent it became clear that no one needed to cover his role. Following a period of consultation Mr Charlesworth was dismissed by reason of redundancy in April 2015.
Mr Charlesworth subsequently brought claims for unfair dismissal, discrimination arising from disability and direct disability discrimination. All the claims were dismissed by the Employment Tribunal. With regard to the discrimination arising from disability claim, while the Tribunal that heard the claims accepted that there was a link between Mr Charlesworth's disability related absence and his redundancy (as it was the absence that highlighted his role was not needed) they held that this was not the same thing as it being the cause of his dismissal. The Tribunal described the absence as being the context within which the events occurred, but not their effective cause.
The Equality Act 2010 states that discrimination arising from disability occurs when a disabled person is "treated unfavourably because of something arising in consequence of a disability". Mr Charlesworth appealed to the EAT on the basis that the tribunal had applied the wrong causative test. He argued that it was enough for the unfavourable treatment (the dismissal) to have been influenced by his absence, it did not need to be the significant or effective cause.
After considering earlier case law on the matter the EAT took the view that in order for discrimination arising from disability to occur Mr Charlesworth's absence needed to be the effective cause of his dismissal. It was not enough to have an influence that was less than the effective cause, and accordingly the appeal was dismissed.
While this decision shows that a decision to delete a role that is taken during the absence of the individual can be fair and non-discriminatory, the EAT judgement did record that every case will turn on its own facts and there will be cases where absence is the effective cause. In those cases the employer is at risk of a finding that they have discriminated. In order to avoid that outcome it will be essential that a full and fair redundancy procedure is followed, that the reasons for the dismissal are recorded and that they are properly explained to the employee.