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What’s the answer? Redundancy after sick leave

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Lorraine De’Ath gets legal guidance this week from Martin Brewer, a Partner with the employment team of Mills & Reeve, and Helen Badger, employment law expert at Browne Jacobson, on whether it is compliant to make an employee redundant following a period of sick leave.



The question:
If an employee has been on long term sick of four months and it has now been proven that there really is not a position for him to come back to due to the work being covered by other employees in his absence, can you make a redundancy upon his return?

Lorraine De’Ath

The answers:
Martin Brewer, is a Partner with the employment team of Mills & Reeve
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Lorraine, a sick employee remains an employee. It is jobs that become redundant, not people. Thus, if the employee’s job becomes redundant then you must follow a proper redundancy procedure to establish whether a dismissal is necessary at all, if it is whether that sick employee, or another should be dismissed as a result.

This process includes a fair warning and consultation over selection and alternative employment. Crucially you will need to consider the pool of employees from which to dismiss the employee, if dismissal is the route you go down. Before that you must consider alternatives to dismissal. In undertaking this process you will have to ensure that you comply with the statutory minimum dismissal procedure.

Lorraine, if you just ‘pick’ this sick employee as redundant then you run the risk that a tribunal will find that the real reason for dismissal is really their unacceptable level of absence so please ensure that there is a genuine redundancy situation before taking any action.

The other thing you need to think about is whether the employee might be disabled. Although this requires the employee to have an impairment which has, amongst other things, a ‘long term’ impact on them (meaning has or may last for 12 months or more), an absence of four months should at least lead you to conclude that further investigation is necessary.

After all, a former teacher has just received over £190,000 having been discriminated against because of her disability, so you should proceed with due care.

Martin can be contacted at: [email protected]

Helen Badger, employment law expert, Browne Jacobson
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It is not uncommon for organisations to realise that it is possible to spread the work of one employee around when they are off sick, leading to the conclusion that they are no longer needed. Whilst in principle this would fit the statutory definition of redundancy, caution needs to be taken when handling such a situation.

Firstly, the employer needs to consider carefully whether employees have been willing to take on additional work in what is a temporary situation, and be aware that a more permanent arrangement could lead to complaints of overwork and stress.

If you are confident that the work could be shared out fairly and safely on a permanent basis, and a genuine redundancy situation arises, you must then consider whether other employees need to be factored in to a selection process for that redundancy.

If the absent employee is one of a team of people doing the same job, then simply to make him or her redundant could, if the illness relates to a disability, amount to discrimination under the Disability Discrimination Act. As it may not be possible to know at this stage whether the employee’s illness would qualify as a disability under the DDA, it is better to err on the side of caution and treat the case as such, to avoid difficulties in the future.

You also need to be careful to ensure that all employees doing the same type of work are included in a pool of employees from whom you select the redundant employee and objective selection criteria applied to that pool of employees. Attendance records should not be among the criteria applied if the employee’s absence is or could be due to a disability, as this too would amount to discrimination.

Once a pool of employees has been identified, you must also ensure that you follow a thorough consultation process, explaining the redundancy proposals when they are at a formative stage, and discussing with affected employees, including the employee in question, ways of avoiding the redundancy. You also need to consider whether there are any other positions within the company for which the potentially redundant employee might be suitable.

Only after all of these procedures have been followed should notice of termination be issued.

Helen can be contacted at: [email protected]

See more What’s the answer? items here.

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