Can an Employer Make a Sick Employee Redundant?

If a business is proposing to make redundancies, consultation is an essential part of the process. ‘Consultation’ involves speaking to affected employees about the reasons why redundancy is proposed, alternatives to redundancy and the selection method for reducing numbers of employees.

One of my clients has been going through a restructure which will result in the reduction in the number of roles available in the business. They were part-way through the consultation process and were at the stage of announcing the results of the scored selection matrix when one of the employees being consulted went off sick. The original reason for absence was not stress related but has since become a stress condition. He is now refusing to attend any meetings, which makes it difficult for them to follow a process.

Unfair dismissal

While you can make someone redundant when they are off sick, redundancy is a dismissal so there are risks attached. To avoid an unfair dismissal claim, my client must act reasonably and follow a fair procedure in the circumstances.

It is essential that absent employees are kept up to date with the redundancy process. They should be provided with the same written information that is given to their colleagues. A person who is off work should be allowed to play an active part in the process. Try to hold meetings with him or her in person if that’s possible. How and where any such meetings are held will depend on the employee’s health and what they are comfortable with. Good communication and flexibility in the approach are essential.

Look at the circumstances and make adjustments to your normal procedure. For example, if someone is recovering from a hip operation, you could offer to make a home visit to carry out the consultation meetings.

In cases of stress or mental health condition, the employee may not be well enough to attend consultation meetings. In this case we have offered the employee a home visit or if he can’t do that, the opportunity to comment in writing or by telephone, or through a representative. We have also offered additional time to comment so time pressure is reduced.

Take care if the employee is absent as a result of a disability-related illness. Not only must you follow a fair process, you must also ensure that you do not act in a way that can be considered discriminatory as a result of the employee’s disability.

In Charlesworth v Dransfields Engineering Services Ltd [2017], Mr Charlesworth was absent because of illness. The company restructured the business and removed his post. Mr Charlesworth argued unsuccessfully that this amounted to discrimination because it was done when he was off sick for a disability related reason. The tribunal found that the dismissal was fair. Although Mr Charlesworth’s sick leave had given the company the opportunity to identify its ability to manage without him, this was not the same as saying that Mr Charlesworth was dismissed because of his absence. Mr Charlesworth’s absence was not an operative cause of his redundancy dismissal, it was merely the context which allowed the employer to identify a potential cost saving.

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DISCLAIMER

Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.

Copyright © 2019 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.