If because of your disability you are absent from work and if because of that absence your employer discovers that it doesn’t actually need you, does your resulting redundancy arise from your disability? 

This is important because Section 15 Equality Act 2010 says that if A treats B unfavourably “because of something arising in consequence of B’s disability” then that will be unlawful discrimination if A cannot justify that treatment.

In Charlesworth v. Dransfields Engineering Services last month the Employment Appeal Tribunal considered just such a case, and whether the unfavourable treatment (the redundancy) was indeed because of something (the absence) arising in consequence of a disability.  At one level, of course it is – it is the employer’s experience of doing without the employee for a period which leads it to realise that in fact his role could be absorbed by others.  But is that enough to get it into Section 15?  The EAT drew a (mostly) useful distinction between cases where the disability is merely context and where it is an effective (though not necessarily sole or main) reason for the treatment.  The classic example of this appears in the Equality and Human Rights Commission Guidance.  An employee is suffering from a disability which cause her great pain from time to time.  In the throes of that pain, she is uncharacteristically rude to her employer in a way which would normally justify serious disciplinary action.  The Guidance says that because the employer knows that the rudeness is a product of the pain and the pain is the product of the disability, any disciplinary action in response would be unfavourable treatment “because of something arising in consequence of the disability” and so would need to be justified.  Fair enough in principle, though the Guidance then goes on to offer no help at all on what or whether disciplinary action would be justified in such cases.

But in Charlesworth the redundancy situation did not arise in consequence of the disability – it was merely discovered as a result of the absence caused by it.  The disability was just context for the absence and had no causal link to whether there was a redundancy situation or not.  That could have been identified by the employer at any time in any number of ways quite independent of the disability or resulting absence.  That is a sensible conclusion, but its usefulness is tainted for employers by the Judge’s view that “no doubt there will be many cases where an absence is the cause of a conclusion that the employer is able to manage without a particular employee and in those circumstances is likely to be an effective cause of a decision to dismiss, even if not the main cause.  But that does not detract from the possibility in a particular case or on particular facts that absence is merely part of the context and not an effective cause.  Every case will depend on its own particular facts.”  Unfortunately, the EAT did not then indicate what facts would separate absence being an effective cause of the decision to make somebody redundant (hence requiring justification under Section 15) rather than merely part of the context to that decision.  One way or another, the absence is still the cause of the conclusion that the employer is able to manage without the individual.

Lessons for employers

• Be sure that the absence is long enough that the conclusion that you could do without the employee on a permanent basis is reasonable. Just because the team can muddle through for the sort of duration which might be attributed to a decent holiday or non-disability illness does not mean that there is a redundancy situation, especially if you have conscripted help from other departments over that period.

• If the disability is merely background context, then the employer should not be caught by the obligation to justify the subsequent dismissal under Section 15.

• But that does not mean that redundancy in such circumstances would automatically be fair. The employer would still need to show a reasonable process and also that it was indeed that particular employee whose role had been demonstrated by the absence to be surplus to requirements. Bear in mind that protracted absence by one of its members without either replacement or problems may well indicate that a particular team or department is overstaffed, but it does not necessarily indicate that the surplus person is the one who has been away.  A fair selection process will be required first, since if the employer automatically points the finger at the absentee, that could be both unfair and discriminatory.

Someone somewhere reading this is considering how this concept could be extrapolated across to maternity absence. Does this mean that if you don’t replace a woman during her maternity or parental leave, she can safely be made redundant?  Yes and no, but mostly no.  In exactly comparable circumstances to Charlesworth (she is the only post-holder, there is clear evidence of ability to spread her duties among others but not vice versa, no alternative employment opportunities exist, etc) then that might work.  In all other cases, no.