When is cancer victim's redundancy not discrimination?
Disabled employees, who suffer from a physical or mental condition which has a long term and substantial effect on their day to day activities, have protection from discrimination.
An Employment Appeal Tribunal considered whether an employer, who dismissed a disabled employee after a long period of sickness, was liable for discrimination arising from disability.
Mr Charlesworth was a branch manager at Dransfields Engineering Services Ltd (DES). The company was not profitable and was looking to make cost savings from 2012 onwards. In the summer of 2014, Mr Charlesworth sadly developed renal cancer and was absent from work from October to December 2014.
During his absence it became clear to management that it could cope without the role of branch manager.
The claimant returned to work on December 15, 2014 but was subsequently made redundant in April 2015.
He brought claims for unfair dismissal, direct disability discrimination and discrimination arising from disability.
He stated that his redundancy situation was a sham, he had been dismissed because of his disability, that there was a link between his absence and the decision to dismiss him and that this was discrimination arising from disability.
An employment tribunal dismissed Mr Charlesworth's claim - whilst the tribunal accepted that there was a link between the claimant's absence through illness and the fact that he was dismissed, he was not dismissed because of his absence but because of what his absence revealed to management regarding the business' ability to cope without anyone fulfilling his role.
Several factors also supported the fact that Mr Charlesworth's role was being made redundant:
- Firstly, Mr Charlesworth's branch was one of four and was not highly profitable;
- Secondly, DES gave consideration to the possibility of alternative employment within the group but found that there were no suitable vacancies for the claimant;
- Thirdly, DES had been looking to make cost-savings as far back as 2012.
Mr Charlesworth appealed, asserting that it was only when off on sickness absence for his cancer that his employer decided to delete his job.
Further, he argued that the 'link' between his absence and the dismissal was therefore enough to say that his absence had caused it to occur and, as such, DES had dismissed him for something arising out of his disability.
The Employment Appeals Tribunal stated that something arising from disability must be an "operative cause" of the discriminatory treatment that works consciously or subconsciously on the mind of the putative discriminator and whilst it was his absence that provided an opportunity for his employer to see how it would cope without him, the operative reason for the dismissal was not in the employee's absence, but instead the cost-cutting measures implemented by DES.
Employers should exercise caution when looking to make employees redundant in a similar circumstances and should always seek professional legal advice.
- Maxine Orr is a partner specialising in employment law in Worthingtons Solicitors, Belfast. For advice telephone 9043 4015 or email email@example.com