The recent case of Charlesworth v Dransfields Engineering Services Ltd suggests that it is if the absence is not the operative cause of the dismissal, but only the context.
This means that the facts of each case will be key and the risk to employers in this area remains high.
Mr Charlesworth was employed as a branch manager with Dransfields Engineering Services Ltd (DES). DES was operating at a loss, and from 2012 onwards was looking to cut costs. In 2014, Mr Charlesworth developed renal cancer and took sickness leave for two months. During this time DES identified that the business could operate effectively without Mr Charlesworth in his role. He was subsequently made redundant in 2015. Mr Charlesworth did not appeal this decision, but later brought a claim for unfair dismissal, direct disability discrimination and discrimination arising from disability.
The Employment Tribunal (ET) dismissed his claims. It accepted that there was a link between his disability-related absence and his dismissal, as this had enabled his employer to identify that his branch could function without anyone covering his role. However, the ET held that this was merely the contextual, rather than causative reason for his dismissal.
Mr Charlesworth appealed this decision on grounds that the tribunal failed to apply the correct test for causation under section 15 of the Equality Act 2010.
The EAT, dismissed the appeal. It considered that the tribunal had correctly applied the test from section 15 Equality Act 2010, and noted that this section did not require the Claimant's disability to be the sole or main cause, provided it was an effective cause.
The EAT held that the ET was entitled to find that the claimant's sick leave was not the effective cause of his dismissal in this case. However, it held that there would be cases where sickness absence would be likely to be an effective cause of a decision to dismiss (even if not the main cause). Each case will turn on its own particular facts.