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Treating absent employees with care during the redundancy process

Published 24 September 2018

The mere mention of redundancy and the prospect of it are bound to make any employee feel sick with worry.

With such announcements it is understandable that workers are going to be fretful and fear the worse. Redundancy (1) arises in the following three circumstances:

·         a business is closing,  or

·         a workplace closure, or

·         circumstances have changed, which means there is a reduction or proposed reduction in the need for employees.

Employers should always consult with employees before making any redundancies. Redundancy consultation (2) can either be on an individual or collective basis, individual consultation means the employer will speak to each person directly.

An employee is entitled to a consultation with their employer if they are being made redundant. This involves speaking to them about the reasons why, and alternatives to the redundancy.

As with the best laid plans, the consultation process may not always go as planned and unexpected situations may arise. This may include having to deal with an employee who is off sick at that time.

It is possible to fairly make an employee redundant while they are absent from work. In order for such a dismissal to be just, as with any dismissal, the process used should be fair.

It is essential that the absent employee is kept up to date with the ongoing redundancy process. They should be provided with the same written information that is given to their colleagues.

The person who is off work should be allowed to play an active part in the process and an employer should attempt, where practicable, to hold meetings with the individual in person.

How and where any such meetings are held should depend on the employee’s health and what they are comfortable with. Good communication and flexibility in the approach is essential.

Consideration should be given to holding meetings at the home of the employee if they are comfortable with the arrangement. It may be the case that the individual is unable to take part in a face- to-face meeting, regardless of the suggested location, in which case consultation can take place by phone, letter or email.

An employer is taking a risk if it fails to consult with an employee on sick leave. If the employee is made redundant without being consulted they may make a claim for unfair dismissal (3). A failure to follow a fair procedure can make the dismissal unfair, even if there is a genuine redundancy situation.

Extra care has to be taken if the employee is absent as a result of a disability-related illness. Not only does the employer have to follow a fair process, but it also needs to ensure that it does not act in a way that can be considered discriminatory as a result of that worker’s protected characteristic e.g. disability (4)

In the case of Charlesworth v Dransfields Engineering Services Ltd the employee was off sick as a result of his disability when he was made redundant. The Employment Appeal Tribunal found that the decision was fair (5).

While Mr Charlesworth was absent due to illness, the employer restructured the business and removed his post. His claim that this amounted to discrimination because it was done when he was off sick for a disability related reason, was unsuccessful.

An employee’s absence during the redundancy consultation process for other reasons, such as maternity leave or paternity leave, may make it clear that the role that individual performs is no longer required.  If this is the case the situation can be more complex.

Dismissal in such circumstances may breach, Regulation 20 of the Maternity and Parental Leave etc Regulations 1999 (6) in that if an individual is dismissed for a reason ‘connected with taking maternity leave’, the dismissal will be automatically unfair.

References

1.Redundancy: your rights [Internet]. GOV.UK. [cited 2018 Sep 17]. Available from: https://www.gov.uk/redundant-your-rights

2.Redundancy consultation and procedure | Acas advice and guidance [Internet]. 2013 [cited 2018 Sep 17]. Available from: http://www.acas.org.uk/index.aspx?articleid=4256

3.What is unfair dismissal? [Internet]. Castle Associates Ltd. 2017 [cited 2018 Sep 17]. Available from: https://castleassociates.org.uk/support-centre/what-unfair-dismissal

4.Protected characteristics | Equality and Human Rights Commission [Internet]. [cited 2018 Sep 17]. Available from: https://www.equalityhumanrights.com/en/equality-act/protected-characteristics

5.Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16/JOJ [Internet]. [cited 2018 Sep 17]. Available from: https://www.employmentcasesupdate.co.uk/site.aspx?i=ed35543

6.The Maternity and Parental Leave etc. Regulations 1999 [Internet]. [cited 2018 Sep 17]. Available from: http://www.legislation.gov.uk/uksi/1999/3312/regulation/20/made

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A reputation built on success

For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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