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Redundancy after sickness absence not always disability discrimination

June 15, 2017

 

 The employee in question had been off sick for a couple of months due to cancer.  During his absence, the employer identified that it could save costs and manage without his role, his responsibilities being absorbed by others.  Following a consultation he was made redundancy.

 

His claims for unfair dismissal and disability discrimination failed.  On appeal, he was argued that because his absence had led to the redundancy being identified, it must be disability-related discrimination for this employer to dismiss but the EAT rejected this. The EAT has rejected this argument. It acknowledged that the Tribunal accepted that there was a link between his absence through illness and the fact that he was dismissed, the link being that his absence afforded the employer an opportunity to observe the way in which the work was dealt with and “threw into sharp relief” their ability to manage without anybody fulfilling his role of branch manager. Nevertheless, the Tribunal was legally able to go on and say that he was not dismissed because of his absence. The correct test is whether the employee’s sick leave was one of the effective causes of his dismissal, and here the Tribunal was able to find that was not the case.

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