Being off sick does not automatically prevent your employer from making your role redundant. A genuine redundancy process can continue while you are absent from work, including during a period of long-term sickness. However, your employer must still follow a fair redundancy process and should not select you for redundancy simply because you are on sick leave.
A genuine redundancy situation will usually arise because your employer is closing its business or workplace, or because it has a reduced requirement for employees to carry out work of a particular kind. Your employer should be able to explain the business reason for the proposed redundancy and why your role, or the group of roles that includes yours, has been placed at risk.
If your sickness absence has influenced the decision to select you for redundancy, this may raise questions about the fairness of the process. Additional issues can arise where your absence is connected with a disability or another legally protected reason.
How should redundancy consultation work if you are off sick?
Your employer should not simply exclude you from the redundancy process because you are absent. You should normally still be informed about the proposed redundancy, provided with relevant information and given a meaningful opportunity to take part in consultation before a final decision is made.
The way consultation takes place may need to be adapted to your circumstances. Depending on your health, this could include holding meetings remotely, communicating in writing, allowing additional time for you to respond or rearranging meetings where appropriate. If your health condition amounts to a disability under the Equality Act 2010, your employer may also have a legal duty to make reasonable adjustments to avoid placing you at a substantial disadvantage.
A meaningful consultation should give you an opportunity to understand why your role is at risk, comment on any proposed selection pool and selection criteria, challenge your individual scoring where applicable, suggest alternatives to redundancy and discuss any suitable alternative employment that may be available.
Being absent from the workplace should not mean that you miss information about alternative vacancies. Your employer should take appropriate steps to ensure that employees on long-term sick leave receive relevant communications and have an opportunity to consider suitable alternative roles.
Can sickness absence be used to select you for redundancy?
Employers may sometimes take attendance into account as part of redundancy selection criteria, but doing so requires care. Selection criteria should be reasonable, capable of being applied fairly and, so far as possible, objective and measurable.
Particular problems can arise where sickness absence is connected with a disability. Using disability-related absence against an employee may amount to discrimination arising from disability under the Equality Act 2010 unless the employer can establish the required justification. The employer's duty to make reasonable adjustments may also be relevant.
Absences connected with pregnancy and certain other protected circumstances can attract separate legal protection and should not simply be treated in the same way as ordinary sickness absence when redundancy scores are calculated.
If your employer has used attendance or sickness absence when scoring you for redundancy, you should ask which periods of absence were included, how the criterion was applied and what effect it had on your overall score.
Being made redundant while off sick does not, by itself, make the dismissal unfair or discriminatory. However, there may be grounds to challenge the decision if the redundancy situation is not genuine, the selection process is unfair, your absence has been treated unlawfully, you have been excluded from meaningful consultation or suitable alternative employment has not been properly considered.
What should you do if you are made redundant while off sick?
If you are told that your role is at risk while you are on sick leave, ask your employer to explain the reason for the proposed redundancy, the selection pool and criteria being used, your individual scores where applicable, and the consultation process that will be followed. You should also ask about any suitable alternative roles and check your entitlement to notice, redundancy pay, accrued holiday pay and any other contractual payments.
Employees with at least two years' continuous employment will generally qualify for statutory redundancy pay if the relevant statutory requirements are met. Notice rights are separate and will depend on the employee's statutory and contractual entitlement. Being on sick leave can affect the amount of pay received during a notice period in some circumstances, so this should be checked carefully rather than assuming that normal salary will necessarily be payable throughout.
If you believe your sickness absence has influenced the decision, disability-related absence has been counted against you, you have been excluded from consultation or the redundancy process otherwise appears unfair, consider taking legal advice promptly.
In some cases, an employer may propose a settlement agreement as part of an agreed exit. For a statutory settlement agreement to validly waive the relevant employment claims, specific legal requirements must be satisfied, including the requirement for the employee to receive advice from a relevant independent adviser on the terms and effect of the agreement and its effect on their ability to pursue those claims.
For more information, contact us on 01524 907100, info@pre-law.co.uk or through our online enquiry form.
