To dismiss or not to dismiss

June 2017

By Lucy Bloom of Osborne & Wise

In Charlesworth v Dransfields Engineering Services Ltd (“DES”), the EAT rejected a claim of disability discrimination brought by an employee who was made redundant following a period of sick leave. In this case, Mr Charlesworth had an operation and took two months off sick.  He then returned to work full-time.  During his absence, DES recognised whilst he was off sick that Mr Charlesworth’s current duties could be taken on by other staff members, and that there was therefore a reduced requirement for his role.  Consequently, DES conducted a full redundancy consultation process and made Mr Charlesworth’s role redundant

This case demonstrates that an employer need not “shy away” from making an employee’s role redundant if they have taken a period of sickness absence.  Provided that an employer can demonstrate that a) a genuine redundancy exists; (b) they have completed a full and thorough redundancy process; and (c) the sickness absence is not the cause of the redundancy, then it may be permissible to move forward with a redundancy dismissal even though the redundancy was recognised whilst the employee was off sick.