The question
Is it okay to recruit for a team leader from within a team if a member of the team is off sick? They are not on long-term sick leave, just recovering from an operation. What is the legal position here?
Legal verdict
Esther Smith, partner at Thomas Eggar
As an employer, you are free to recruit who you like, to do whatever job you like. But in this situation, you do need to be mindful of the person who is off sick.
They, of course, have a right to resume their previous role once they are fit to return and, even though their absence has been long-term, there is nothing in your question to suggest that a return to work, or indeed to their role, is not going to happen.
Therefore, if you do go out to recruit someone to do the employee’s role in their absence, I would communicate openly that this is what you are doing and reassure them that it does not mean there is no role for them when they are fit to return.
Instead make it clear that the situation is simply a measure on the part of the business to ensure that work is adequately covered in their absence.
In terms of the new recruit, obviously they will not accrue protection against unfair dismissal for some time so if the current employee returns and you need to dismiss the new recruit, it should not prove a problem.
Again however, I think that communication is key here so I would be open about the situation with the new recruit in order to ensure that they are aware of what they are taking on.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Andrew Howard, solicitor at Speechly Bircham
I would not be too concerned about the employee in question complaining that the recruitment of a new team leader should not have taken place while they were off on sick leave, unless there is a valid reason why they should be consulted. But you could let them know if you think it may help to avoid any issues.
If, on the other hand, you are asking whether you can recruit a team leader without giving the staff member an opportunity to apply for the team leader role, then that is a more complicated issue.
In order to follow good practice and minimise the risk of any claims, the employee should not be treated any differently in this respect to their colleagues simply because they are absent.
They should be given the opportunity to apply for the role in the same way as other personnel. However, we appreciate that there may be practical difficulties in doing this such as possible time delays.
If you do not allow the employee to apply and they wish to make a complaint about it, they are likely to do so by raising two arguments: discrimination or a breach of the duty of trust and confidence.
Depending on the reason for their absence, the staff member concerned may rely on disability discrimination (as defined under the Equality Act 2010), especially if they feel that they have been excluded because of their absence.
Trust and confidence
But they would need to satisfy requirements under the Equality Act, which includes demonstrating that they suffer from a disability and have been treated less favourably than other team members who do not have a disability.
They could likewise bring a claim stating that you have failed to make a reasonable adjustment, but you should also consider whether there are other forms of discrimination that may apply.
As mentioned above, meanwhile, the employee could claim that, by denying them the chance to be considered for promotion, you have breached the implied term of trust and confidence (whether or not they are disabled).
This term broadly requires employers and employees not to act in any way that would destroy or seriously undermine the trust and confidence implicit in their employment relationship.
In response to such a breach, the staff member may resign and bring a claim against their employer for constructive unfair dismissal. Although such action would be risky and, depending on the circumstances, may be difficult to prove, it is a possibility.
In terms of next steps, you should consider whether it is possible to include the absent employee in the application process for the team leader role. If you do not want to do this, you need to consider the risk involved by considering the circumstances in more detail and taking legal advice.
Andrew Howard is a solicitor at Speechly Bircham LLP.
